In Re Complaint by BUSINESS
EXECUTIVES MOVE FOR VIETNAM PEACE Concerning Fairness Doctrine
Re Station WTOP, Washington, D.C.
FEDERAL
COMMUNICATIONS COMMISSION
25 F.C.C.2d 242
RELEASE-NUMBER: FCC 70-860
AUGUST
5, 1970
OPINION:
[*242]
BUSINESS EXECUTIVES MOVE FOR VIETNAM PEACE, c/o Asher &
Schneiderman, 1320 19th Street NW., Washington, D.C.
GENTLEMEN: This
is with reference to your complaint dated January 22, 1970, against the
licensee of Standard Broadcast Station WTOP, Washington, D.C., and to
statements subsequently submitted by you and the licensee. n1
n1 Pleadings before the Commission
include: Complaint filed by BEM on January 22, 1970; letter of response filed
by Post-Newsweek Stations (WTOP) on February 5, 1970; letter of reply filed by
BEM on February 16, 1970; letter requesting Commission action filed by BEM on
February 24, 1970; letter filed by WTOP on February 24, 1970; letter filed by
BEM on February 26, 1970, and response of WTOP filed February 27, 1970; letter
filed by WTOP on February 27, 1970; letter filed by BEM on March 10, 1970;
letter filed by WTOP on April 3, 1970; and letter filed by BEM on April 15,
1970.
From information
before us it appears that the complainant, Business Executives Move For Vietnam
Peace Organization (hereinafter called BEM), a national organization of more
than 2700 business owners and executives sought, in June 1969, to purchase time
on WTOP for the purpose of broadcasting one-minute announcements urging
immediate withdrawal of American forces from Vietnam and from other overseas
military installations. While there is
some indication that the complainant was informally given a favorable response,
WTOP declined to sell time. BEM renewed
its request in July, 1969 and again in January, 1970 with the same negative
result. The licensee cited its long
established policy of refusing to sell spot announcement time to individuals or
groups to set forth views on controversial issues and stated that "subjects
of this type require a more in-depth analysis than can be provided in a 10, 20,
30 or 60 second announcement."
Complainant's
initial request to the station made no reference to the fairness doctrine and
after being turned down in its attempts to purchase time, complainant made no
further demands upon the licensee in terms of fairness doctrine, i.e. that the
station in its coverage of the Vietnam issue present views similar to those
expressed in BEM's statements.
Complainant now alleges, however, that in refusing to sell or to provide
free time for the announcements, the licensee has violated the fairness
doctrine, infringed on the public's right to
[*243] hear contrasting views
such as those contained in BEM's announcements, and violated the First
Amendment to the Constitution by suppressing free speech. Therefore, complainant contends, the
Commission should order the licensee to present its announcements, either free
of charge, or, in the alternative, at commercial rates. In response, the licensee denies
complainant's charges and asserts that it has complied fully with all relevant
statutes and Commission rules and policies.
We shall deal first with the fairness aspect of the complaint. Normally, fairness complaints arise as a
result of unsuccessful negotiations between the complainant and the station
licensee. The Commission has developed
procedures for the filing of a complaint under the fairness doctrine in the
following manner:
... The Commission expects a complainant to
submit specific information indicating (1) the particular station involved; (2)
the particular issue of a controversial nature discussed over the air; (3) the
date and time when the program was carried; (4) the basis for the claim that
the station has presented only one side of the question; and (5) whether the
station had afforded, or has plans to afford, an opportunity for the
presentation of contrasting viewpoints.
n5 n2
n2 Applicability of the Fairness
Doctrine in the Handling of Controversial Issues of Public Importance, 29, Fed.
Reg. 10415, 10416.
n5 The complainant can usually
obtain this information by communicating with the station.
In short, by the
time a complaint under the fairness doctrine reaches the Commission, the
parties (both the complainant and the station) will have had an opportunity to
fully crystallize their positions and delineate their areas of agreement and
disagreement.
In the case
before us, BEM initially made a request to purchase air time for the
presentation of a number of spot announcements dealing with United States
presence in Vietnam. The same request
was made on at least three occasions with the variation that if WTOP would not
sell time for this purpose, that it should provide it free of charge. The pleadings before us do not indicate that
at any time BEM sought station coverage of views similar to those urged in its
spot announcements by WTOP in its program coverage of the Vietnam War.
Consequently,
while we will consider the complaint of BEM in its entirety, we believe the
issue would have been immeasurably sharpened if the procedures set forth above
had been observed.
BEM states that
the Vietnamese war is unquestionably a controversial issue of public
importance; that although WTOP has regularly presented the views of government
officials and others supporting the Administration's position, it has not
devoted a significant amount of time to contrasting views; that the war has
provoked a wide diversity of responsible views, rather than merely views on
"two sides;" that BEM advocates views in contrast to those already
broadcast; n3 and that [*244] only by permitting
BEM to air its views can WTOP comply with the legislative policy that it
"afford reasonable opportunity for the discussion of conflicting views on
issues of public importance." n4
n3 A review of BEM's announcements
reveals that the following views are expressed: (1) that the bloodshed which
may result from United States withdrawal from Vietnam does not compare with the
bloodshed presently going on in Vietnam; (2) that the United States should not
remain in Vietnam, because the war is morally corrupt, politically inept, and
militarily stupid; (3) that the war is destroying the United States internally;
(4) that the South Vietnamese government does not represent the people; (5)
that "Vietnamization" of the war will prolong the war; (6) that the
United States should try to save lives by withdrawing and not try to "save
face;" (1) that the war is a "national disgrace;" (8) that our
withdrawal must be total; (9) that remaining in Vietnam is based on a
pseudo-patriotic principle; and (10) that the United States needs to overhaul
its entire foreign policy.
n4 47. U.S.C. § 315
In response, the
licensee states that it has tried to provide balanced coverage of the Vietnam
war issue in news reports, news interviews, commentary and statements by both
supporters and opponents of the Administration policy. It cites extensive coverage of Moratorium
activities last fall, including press conferences, meetings and rallies of
numerous anti-war groups, and its handling of the President's speech of November
3, 1969, following which it presented five leaders generally supporting the
President's position and six leading critics of his policy. It states that it has broadcast the diverse
views of its own commentators (Carl Rowan, Drew Pearson, Rod MacLeish and James
J. Kilpatrick) and also carries the CBS programs, "Face the Nation"
and "Capitol Cloakroom," which it states have provided opportunity
for national leaders to present views both for and against the President's
policy. WTOP alleges that BEM's complaint
lacks the specistates that "A complete quantitative evaluation of the
coverage of any station, let alone an all-news and information station [WTOP],
of as long-continuing an issue as the Vietnam War and President Nixon's policy
with respect to that war would be virtually impossible as a practical
matter." However, it states that a spot check of the three month period,
April-June 1969, reveals that its news reports and other programs included the
views of a variety of Administration critics on the war on numerous
occasions. The licensee has submitted
an affidavit by the Executive Editor of WTOP Radio, stating that "of my
own knowledge... each of the viewpoints embodied in the BEM announcements has
been expressed on a number of occasions in various types of broadcast over
WTOP...."
The fairness
doctrine requires a station which presents one side of a controversial issue of
public importance to afford reasonable opportunity for the presentation of
significant contrasting viewpoints on the issue in its overall programming,
which may include news programs, interviews, discussion, debates, speeches and
the like. No particular person or group
is entitled to appear on the station, since it is the right of the public to be
informed which the fairness doctrine is designed to assure, rather than the
right of any individual or group to present personal views. As we stated in our Report In the Matter of
Editorializing by Broadcast Licensees, 13 FCC 1246 (1949):
In determining
whether to honor specific requests for time, the station will inevitably be
confronted with such questions as whether the subject is worth considering,
whether the viewpoint of the requesting party has already received a sufficient
amount of broadcast time, or whether there may not be other available groups or
individuals who might be more appropriate spokesmen for the particular point of
view than the person (or group) making the request.
In the present
case, because of the multiplicity of spokesmen available to express views on
the Vietnam war, it is obvious that a licensee must exercise its judgment in
choosing appropriate spokesmen to
[*245] insure an orderly and
effective presentation of the many conflicting views. The question, then, is whether a licensee has exercised
reasonable, good faith judgment in applying the fairness doctrine to a
particular issue or issues.
In the letter to
Mrs. Madalyn Murray, 40 FCC, 647, 5 RR 2d 268 (1965), we stated:
A licensee, in applying
the fairness doctrine, is called upon to make reasonable judgments n good faith
on the facts of each situation... as to what viewpoints have been or should be
presented, as to the format and spokesmen to present the viewpoints, and all
other facets of such programming. In
passing on any complaint in this area, the Commission's role is not to
substitute its judgment for that of the licensee as to any of the above
programming decisions, but rather to determine whether the licensee can be said
to have acted reasonably and in good faith.
On the basis of
BEM's complaint and the licensee's response, we are unable to find that the
licensee acted other than reasonably and in good faith in refusing to make time
available for the broadcast of BEM's announcements. On the one hand, we have the licensee's assertion that it has
presented a wide variety of views on the Vietnamese war, including those
embodied in the proposed announcements.
The licensee has cited a number of specific instances in which it has
presented views opposed to further American participation in the conflict. On the other hand, we have no more than a
general allegation that WTOP has failed to present significant contrasting
views on the subjects covered in the announcements. As we stated with regard to similar vague allegations in our
letter of November 25, 1969, to Allen C. Phelps and the Federation of Citizens
Associations of the District of Columbia, 21 FCC 2d 12, where it was charged
that this same licensee had presented only the "liberal" viewpoint on
a number of issues such as racial discrimination: n5
n5 The Phelps complaint charged that
WTOP's violation of the fairness doctrine was manifest by one-sided coverage of
issues such as "liberal v. conservative" political philosophy, coverage
of the Nixon administration, hostility toward the South, problems of the
District of Columbia including crime, race relations, law and order and the
station's attitude toward mass demonstrations.
Absent detailed
and specific evidence of failure to comply with the requirements of the
fairness doctrine, it would be unreasonable to require licensees specifically
to disprove allegations such as those made here. The Commission's policy of encouraging robust, wide-open debate
on issues of public importance would in practice be defeated if, on the basis
of vague and general charges of unfairness, we should impose upon licensees the
burden of proving the contrary by producing recordings or transcripts of all
news programs, editorials, commentaries and discussion of public issues, many
of which are treated over long periods of time. Accordingly, although the Commission intends also to employ other
appropriate procedures to insure compliance by licensees with the fairness
doctrine (e.g., in-depth spot checks at renewal time), it has long been our
policy normally to require that fairness doctrine complaints (a) specify the
particular broadcasts in which the controversial issue was presented, (b) state
the position advocated in such broadcasts, and (c) set forth reasonable grounds
for concluding that the licensee in his overall programming has not attempted
to present opposing views on the issue.
See Applicability of Fairness Doctrine in the Handling of Controversial
Issues of Public Importance, 29 Fed. Reg. 10415 (1964).
In short, where,
as here, the complainant has made only a general allegation and the licensee
has answered by affidavit that it has presented such viewpoints on numerous
occasions, pointing also to example coverage of the Vietnam war, it is not
unreasonable that the [*246] burden be placed on the complainant to come
forward with some indication why a more detailed showing should be required --
why it is he believes that the licensee has been unfair. Here the complainant has wholly failed to do
so. We stress that we are not requiring
complainants in this area to prove their case ahead of time. To place any undue burdens on such
complainants would be inconsistent with the public interest since the
Commission does depend for purposes of enforcement to a large extent on
complaints in this area. However, the
complainant must have some basis for his complaint that a licensee has been
unfair and that basis can and should be set forth (e.g., several days monitoring
of news or public affairs programming, with the assertion that only one
viewpoint is presented). For, just as
an undue burden should not be placed upon complainants, so also it is
inappropriate to place such a burden on the licensee. A complainant cannot simply say the word, "Vietnam",
"racial discrimination", "pollution", and require a
licensee to devote extensive man-hours to cull over his past programming to
show fairness on general issues of this nature. This would be particularly burdensome to smaller stations, and
would not be a policy promoting "robust, wide-open debate". Cf.
The New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In sum, as a
public trustee, the licensee must shoulder certain burdens, including upon an
appropriate complaint the burden of showing that he has complied with the
fairness doctrine, but based on our experience we find that the public interest
also requires some reasonable specificity in a complaint to trigger this
detailed showing by the licensee. There
is no such specificity in this case, just as there was none in the Phelps case.
Before passing
to the next particular of the complaint, we take cognizance of BEM's contention
that licensee's policy of refusal to sell time for the broadcast of spot
announcements dealing with controversial issues violates the fairness doctrine
and amounts to "picking and choosing among topics so as to give exposure
only to those which it prefers." It states that WTOP does broadcast
announcements "on such controversial subjects of public importance as religion,
the environment, the national economy, armed forces recruiting and
smoking," and that it presents brief editorials taking positions on
controversial issues. WTOP replies that
it does not believe that the public service announcements it carries involve
controversial issues of public importance; that it does not broadcast cigarette
advertising, and that it believes that the anti-smoking announcements which it
carries are in the interest of public health and welfare, comparable to
consumer reports "to help protect the public from fraudulent or deceptive
business practices." It states that its editorials are two minutes in
length and "provide enough time for development of position,"
whereas, it asserts, "The actual substantive portion of the BEM spots
[ranges] from about 20 seconds to 35 seconds...".
We find no
reason to reverse our prior ruling in Women's Strike for Peace that the WTOP
policy in question does not per se violate the fairness doctrine or any other
Commission policy. n6 Citing Section 3(h)
[*247] of the Communications Act
of 1934, as amended, n7 we pointed out in that ruling that
a broadcasting station is not a common carrier under the Act and therefore is
not required to open its doors to all persons seeking to use the station's
facilities for whatever purpose. As we
stated in our letter to Mrs. Madalyn
Murray, supra, it is within the licensee's judgment to determine the format for
presentation of controversial issues "and all other facets of such
programming." The licensee here has asserted, without rebuttal other than
the unsupported assertions of complainant, that it has presented contrasting
views, including the viewpoints embodied in complainant's announcements on the
recited issues, and we find no reason to require that it present in addition
the views of any particular group or in any particular format. We need not develop this point further, in
view of the extensive treatment given the legal and policy consideration in the
DNC ruling, Part I, issued this day, FCC 70-
. We rely here on those considerations.
n6 Letter to Washington Women's
Strike for Peace, November 22, 1965.
n7 Section 3(h) of the Act provides,
in pertinent part, that "a person engaged in radio broadcasting shall not,
insofar as such person is so engaged, be deemed a common carrier."
In the second
part of its complaint, BEM asserts that WTOP has frustrated the public's right
to hear the views of BEM and thus has denied "the right of the public to
receive suitable access to social, political, esthetic, moral, and other ideas
and experiences...." -- citing Red Lion Broadcasting Co., Inc. v Federal
Communications Commission, 395 U.S. 367, 390 (1969). However, as we noted
above, the licensee has furnished or tendered evidence that it has provided
suitable access to the public on the ideas which BEM wishes to express, and it
is clear that in this passage the Supreme Court was stressing the essential
nature of the fairness doctrine, rather than the right of a particular
spokesman to obtain access to the air, except in cases of personal attack and
editorials endorsing or opposing political candidates. The Court stated:
To condition the
granting or renewal of licenses on a willingness to present representative
community views on controversial issues is consistent with the ends and purposes
of those constitutional provisions forbidding the abridgement of freedom of
speech and freedom of press. Id. at 394
(emphasis added).
And in distinguishing between the general fairness
obligation and the special obligations imposed in the case of a personal attack
or a candidate endorsement, the Court noted that,
These
obligations differ from the general fairness requirement that issues be
presented and presented with coverage of competing views, in that the
broadcaster does not have the option of presenting the attacked party's side
himself or choosing a third party to present that side. Id. at 378.
Inasmuch as WTOP
appears to have presented "representative community views" on the
issues here in question, we find that it has not acted contrary to the principles
laid down in Red Lion. See discussion
in DNC ruling, supra.
Finally, BEM
argues that the Commission would be violating the First Amendment rights of
BEM's spokesmen by sanctioning the licensee's policy of refusing to sell BEM
time. Complainant relies principally
upon the Red Lion decision. We do not
believe that the Court's decision supports complainant's conclusion. As noted above, [*248] the Communications
Act specifically provides that a broadcaster shall not be deemed a common
carrier, and thus he may exercise his judgment as to the particular program
matter he will present. The licensee is
thus constantly called upon to make choices between types and formats of
programming and the persons to participate therein. If the licensee were required to present any matter brought to
him which was not obscene, etc., the result would be not only chaotic but a
wholly different broadcasting system which Congress has not chosen to
adopt. DNC ruling, supra.
Based on the
foregoing, we cannot find that the licensee of WTOP acted unreasonably or in
bad faith with respect to the fairness doctrine, nor do we believe that its
conduct was inconsistent with the principles laid down by the Supreme Court in
Red Lion or infringed the First Amendment rights of BEM's spokesmen. Accordingly, the complainant's request for
relief is denied.
Commissioner
Bartley concurring in the result; Commissioner Cox concurring and issuing a
statement; Commissioner Johnson dissenting and issuing
a statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE,
Secretary.
CONCURBY: COX
CONCUR:
CONCURRING
STATEMENT OF COMMISSIONER KENNETH A. COX
I concur in this
action because BEM has not made an adequate showing that its members' views have
not been reasonably reflected in matter broadcast by WTOP. It is implicit in this ruling, of course,
that if the station had not devoted reasonable time to the issues involved in
the Vietnam War -- including the positions espoused by BEM -- it could have
been required to do so. But that marks
the extent of its obligation to the public in this regard. To require more would pose serious problems
for the continued health of our broadcast system and would clearly discourage
the full and effective practice of broadcast journalism. The fact that BEM is willing, if need be, to
pay for time to broadcast its views does not alter this. In the first place, if stations were required
to carry all spots dealing with controversial issues for which time was ordered,
this might occupy much of the time which can be devoted to non-program matter
and could, in time, impair the effectiveness of the broadcast media for
advertising purposes. Furthermore,
although BEM is willing to pay, our ruling in Letter to Cullman Broadcasting
Co., Inc., FCC 63-849, would subject any station carrying its messages to the
risk that those holding contrary views might claim free time for reply. I fully support the Cullman doctrine in
those cases where broadcasters elect to accept sponsored controversial issue
programming or paid spots, but think that to require them to accept such matter
would unreasonably expose them to erosion of their advertising revenues. I have made it clear that I do not think
broadcasters should escalate commercial time or seek to maximize their profits,
but our system depends upon profitable commercial operation and I am not
prepared to try to change that fundamental fact.
I do not think
our ruling should be understood as holding that it [*249] would have been contrary
to the public interest for WTOP to carry BEM's announcements, as other stations
apparently did. While the brevity of
the messages makes it impossible for them to develop ideas to any significant
degree, I do not think we are in a position to rule that those who oppose the
war in Vietnam should be completely barred from using this technique for
getting their viewpoints across to the public.
But I think their right of access to time on a station which has already
adequately treated the war issues and has already reflected a particular
claimant's position must depend on that station's willingness to accept such
spots, with full understanding of its resulting obligations under the Fairness
Doctrine, including the Cullman ruling.
DISSENT:
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
The peculiar
evil of silencing the expression of opinion is that it is robbing the human
race; posterity as well as the existing generation; [and] those who dissent
from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of
exchanging error for truth; if wrong, they lose what is almost as great a
benefit, the clearer perception and livelier impression of truth, produced by
its collision with error...
-- J. s. m/ill,
On Liberty, quoted in Buckley v. Meng, 230 N.Y.S. 2d 924, 932 (Sup. Ct. 1962).
History will
record, I believe, the fundamental misstep taken today by the Commission in its
slow progress toward securing truly free speech for all citizens over the
broadcast media. Almost two hundred
years ago, the architects of our country drafted a constitutional scheme of
government based on the bedrock of one paramount principle: that a free society
would endure only so long as its citizens had the freedom to think, to speak
openly, and to criticize their government.
This First Amendment freedom of speech and press was
"preferred" above all others, see Marsh v. Alabama, 326 U.S. 501, 506
(1946), Thomas v. Collins, 323 U.S. 516, 530 (1945), for all other liberties
could be defended only so long as speech remained free. But should free speech vanish, then the
informed electorate necessary to preserve other freedoms would cease to exist.
Yet freedom of
speech does not exist as an abstraction.
The First Amendment protects not just the right to speak, but the right
to reach an audience -- the right to communicate. Protection of the means used to disseminate ideas, therefore, as
well as the availability of forums used for discussion and debate, must receive
as much attention as the more abstract right to speech itself:
The right of
free speech necessarily embodies the means used for its dissemination because
the right is worthless in the absence of a meaningful method of its
expression. To take the position that
the right of free speech consists merely of the right to be free from
censorship of the content rather than any protection of the means used, would,
if carried to its logical conclusion, eliminate the right entirely. The right to speak freely must encompass
inherently the right to communicate.
The right to speak one's views aloud, restricted by the ban that
prevented anyone from listening, would frame a hollow right. Rather, freedom of speech entails
communication; it contemplates effective communication.
Wollam v.
City of Palm Springs, 379 P.2d 481, 486 (Cal. 1963) (emphasis supplied).
[*250]
The Supreme Court has often recognized this principle, holding that
forums for the expression of views must remain free and open, and that the preservation
of these forums for the communication of views between citizens is one of our
most important goals. In Hague v. CIO,
307 U.S. 496 (1939), Mr. Justice Roberts made the statement that Kunz v. New
York, 340 U.S. 290, 293 (1951), later elevated to precedent:
Wherever the title of street and
parks may rest, they have immemorially been held in trust for the use of the
public, and time out of mind have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens.
Hague v. CIO, supra at 515. The Supreme Court has recognized this
right of access to a "public forum" of communication in numerous
other areas, including privately owned sidewalks, Marsh v. Alabama, 326 U.S.
501 (1946), modern shopping centers, Amalgamated Food Employees Union Local 590
v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), and public schools, Tinker v.
Des Moines School Dist., 393 U.S. 503 (1969). And the Court has also
acknowledged the importance of the press, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Associated
Press v. United States, 326 U.S. 1, 20 (1945), and the electronic media, see
Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969), as forums or means
for the communication of thought.
The question
before this Commission, therefore, is the extent to which the First Amendment
requires that the public forums of broadcasting be equated with the
"streets and parks" of Hague v. CIO, and that the rights of citizens'
access to those forums be included among the basic "privileges,
immunities, rights and liberties of citizens." We must determine whether
private corporate licensees of the FCC have any more right to exclude citizens
from the use of their facilities, than a privately owned "company
town," see Marsh v. Alabama, 326 U.S. 501 (1946), has a right to exclude
citizens from its streets. The
broadcast spectrum is public property belonging to the citizens of this
country. It is entrusted for limited
periods of time to the trusteeship of private entities, corporate broadcast
licensees. I believe these corporate
licensees must be treated, for purposes of speech freedoms, as privately owned
"company towns."
The issue,
therefore, is not what policy the Commission might wish to adopt concerning the
"advertisements" before us, but what the Constitution requires the
Commission to adopt. "In seeking
to provide the broadcasting media with the diversity demanded by the first
amendment,... the Commission must avoid the perils of... abdication which would
allow those possessing the most economic power to dictate what may be
heard...." National Ass'n of Theatre Owners v. FCC, 420 F. 2d 194, 207
(D.C. Cir. 1969) (emphasis supplied). I
believe the Commission has failed in this task.
The facts here
are simply stated. Complainant,
Business Executives Move for Vietnam Peace (BEM) is a well-established national
organization with more than 2,700 members from business communities across the
country. BEM has sought,
unsuccessfully, for over a year, to purchase airtime on WTOP-AM in Washington,
D.C., at its standard commercial rates, to present to residents of the nation's
capital [*251] (including nationally elected members of the
government) one-minute "spot announcements" urging immediate
withdrawal of American troops from Vietnam and otherwise opposing the current
Administration's war policy. WTOP-AM
has denied BEM access to its broadcast facilities -- which it freely offers to
purveyors of mouthwash, underarm deodorant, and hand soap -- on the ground that
the station has a long-established policy of refusing to sell spot announcement
time to individuals or groups with "controversial" views. WTOP-AM's principal justification for this
policy is the belief -- apparently not shared by BEM -- that "subjects of
this type require a more in-depth analysis than can be provided in a 10, 20,
30, or 60 second announcement." The Commission has thrown the weight of
its precedents and support behind WTOP-AM's decision to bar the views proffered
by BEM. Citing Section 3(h) of the 1934
Communications Act, the Commission argues that licensees are not "common
carriers" and therefore WTOP-AM is "not required to open its doors to
all persons seeking to use the station's facilities for whatever
purposes." The majority thus delegates to "the licensee's
judgment" the power to determine "the format for presentation of
controversial issues 'and all other facets of such programming.'" Any
other result, the Commission contends, "would be not only chaotic but a
wholly different broadcasting system which Congress has not chosen to
adopt."
The Commission's
decision, I believe, ignores a long line of judicial precedent which guarantees
to individuals a right of access to forums generally open to the public for
expression of views. These cases, which
I will discuss in detail below, establish the proposition that a private or public
corporation, which exercises possession of, or control over, property which is
open to the general public or to the communication of particular views, cannot
discriminate between the persons or views that seek access to its facility,
barring some and admitting others.
BEM's request, therefore, places the following four issues before the
Commission: first, are BEM's anti-war spot advertisements constitutionally
protected "speech" under the First Amendment; second, is the action
of WTOP-AM, a private corporation licensed and supervised by a public agency in
a fiduciary or trustee capacity for public property, sufficient "state
action" to bring the First Amendment's protections into operation; third,
are BEM's proposed spot announcements an "appropriate" exercise of
speech activities in the public forum of WTOP-AM's frequency, given the
character, usual activity and purpose of the forum and the nature of competing
uses; and fourth, is a limited right of "non-commercial paid access"
to WTOP-AM's frequency consistent with Section 3(h) of the Communications Act
of 1934, which declares that broadcast licensees shall not be deemed
"common carriers." I believe the Constitution compels an affirmative
answer to all four questions. For the
reasons stated below and in my dissenting opinion in Democratic National
Committee, FCC 70-861, Aug. 5, 1970, I dissent to the majority's treatment of
these issues.
I. ADVERTISEMENTS AS PROTECTED
"SPEECH"
The Supreme
Court has drawn a distinction between two types of speech: the first, political
or social speech, is entitled to the fullest
[*252] constitutional
protection. Indeed, Professor Harry
Kalven believes the "central meaning of the first amendment" is to
preserve the citizen's right to criticize those who govern for him. Kalven, The New York Times Case: A Note on
'The Central Meaning of the First Amendment,' 1964 Sup. Ct. Rev. 191, 208-09;
see Meiklejohn, The First Amendment Is An Absolute, 1961 Sup. Ct. Rev. 245,
256.
The second type
of speech, "commercial" speech, however, has not been given much
deference." In the quarter century since Valentine v. Charstensen [316
U.S. 52 (1942)], the notion that commercial advertising is not protected by the
first amendment has been enshrined among the commonplaces of constitutional
law." Note, Developments in the Law: Deceptive Advertising, 80 Harv. L.
Rev. 1005, 1027 (1967); see, e.g., Ginzberg v. United States, 383 U.S. 463, 474
n. 17 (1966); Polak v. Public Util. Comm'n., 191 F. 2d 450, 456-57 (D.C. Cir.
1951) (dictum), reversed on other grounds, 343 U.S. 451 (1952); see also, Note,
Freedom of Expression in a Commercial Context, 78 Harv. L. Rev. 1191 (1965). In
Valentine v. Chrestensen, supra, the Court upheld a municipal ban on the
distribution of commercial pamphlets on city streets. The Court simply observed that "the Constitution imposes
no... restraint on government as respects purely commercial advertising."
Valentine v. Chrestensen, 316 U.S. at 54.
Although the
distinction drawn is an elusive one, it divides, perhaps, speech which seeks to
influence political and social decisions in the marketplace of ideas from
speech which seeks to influence private economic decisions in the marketplace
of goods and services. Compare Murdock
v. Pennsylvania, 319 U.S. 105 (1943) (conviction for door-to-door solicitation
of contributions for religious literature reversed), and Jamison v. Texas, 318
U.S. 413 (1943) (advertisement on back of religious handbill protected), with
Breard v. Alexandria, 341 U.S. 622 (1951) (conviction for door-to-door
solicitation of magazine subscriptions upheld). And while this distinction has been severely criticized, see
Cammarano v. United States, 358 U.S. 498, 513-15 (1959) (dictum) (Douglas, J.,
concurring), and I think with reason, it may indicate that the dissemination of
"false" political ideas can evoke discussion or controversy which may
refute or highlight the falsity of the original statement. "False" commercial assertions, by
contrast, may only breed additional false claims from competitors with no
corresponding improvements in the products sold. Note, 80 Harv. L. Rev. 1005, 1030 (1967). Viewed in this light,
WTOP-AM and the Commission have relegated political and social speech to a
peculiarly inferior role. By permitting
broadcasters categorically to exclude political advertisements and accept only
commercial announcements, the Commission has encouraged exclusion of highly
valued political speech to the benefit of paid commercial speech.
With this in
mind, it is clear that the paid anti-war advertisements proffered by BEM fall
within the category of protected -- indeed highly valued -- political
speech. The fact that BEM is willing to
pay the "admission price" for access to WTOP-AM's facilities does not
detract from the purpose of its message to encourage political decisions in the
marketplace of ideas. The Supreme Court
in New York Times [*253] Co. v. Sullivan, 376 U.S. 254 (1964),
conclusively laid all doubts to rest on this point:
The publication
here was not a "commercial" advertisement in the sense in which the
word was used in Chrestensen. It
communicated information, expressed opinion, recited grievances, protested
claimed abuses, and sought financial support on behalf of a movement whose
existence and objectives are matters of the highest public interest and
concern... That... the advertisement
[was paid for] is as immaterial... as is the fact that newspapers and books are
sold. [citations]... Any other
conclusion would discourage newspapers from carrying "editorial
advertisements" of this type, and so might shut off an important outlet
for the promulgation of information and ideas by persons who do not themselves
have access to publishing facilities -- who wish to exercise their freedom of
speech even though they are no members of the press. [citations]... The effect would be to shackle the First
Amendment in its attempt to secure "The widest possible dissemination of
information from diverse and antagonistic sources." [citation]...
... The present advertisement, as an expression
of grievance and protest on one of the major public issues of our time, would
seem clearly to qualify for the constitutional protection.
New York
Times Co. v. Sullivan, supra at 266, 271 (emphasis supplied). "[When] an
advertisement is the medium for noncommercial expression, constitutional
freedoms apply in spite of its commercial nature." Note, Resolving the
Free Speech-Free Press Dichotomy: Access to the Press Through Advertising, 22
U. Fla. L. Rev. 293, 309 (1969) (citing further authority at n. 131). Accord, Banzhaf v. FCC, 405 F. 2d 1082,
1101-02 (D.C. Cir. 1968); Zucker v. Panitz, 299 F. Supp. 102, 104 (S.D.N.Y.
1969); Wirta v. Alameda-Contra Costa Transit Dist., 434 P.2d 982, 984-85 (Cal.
1967).
I conclude,
therefore, that BEM's anti-war advertisements are "speech" deserving
of First Amendment protection.
II. "STATE ACTION"
The First
Amendment provides that "Congress shall make no law... abridging the
freedom of speech..." Although the language of this amendment binds only
the national government, the Supreme Court has extended its protection to
actions by the states as well. Fiske v.
Kansas, 274 U.S. 380, 387 (1927); Gitlow v. New York, 268 U.S. 652, 666 (1925).
"Yet, while the Fourteenth Amendment affords protection from state action
as well as that from the national government, it does not protect against
wrongs done by private persons." Chicago Joint Bd., Amal. Cloth. Wkrs. v.
Chicago Tribune Co., 307 F. Supp. 422, 425 (N.D. Ill. 1969). In order,
therefore, to establish a violation of the First Amendment, there must be
"state action" -- here by the federal government -- which deprives a
group or individual of the speech freedoms guaranteed by the First Amendment.
On its face, the
refusal by WTOP-AM to accept BEM's advertisements is "private action"
by a private corporate licensee, and there-fore not restrained by the
Constitution. Yet the "state
action" requirement has been found in the actions of many non-governmental
persons or corporations. In each case,
the private action has been sufficiently "involved" with the state
that the restraints of the Constitution have been found to apply. The question before us, therefore, is
whether WTOP-AM's actions are involved with the federal government to [*254]
such an extent that the Constitution sets limits to its action. To paraphrase Farmer v. Moses, 232 F. Supp.
154. 158 (S.D.N.Y. 1964) (grounds of World's Fair equivalent in status to
public property), the question is whether WTOP-AM's actions "are so
impregnated with and supported by state... action as to place them within the
ambit of the [First] Amendment,... even though [WTOP-AM]... possesses certain
indicia and aspects of 'private' ownership and dominion."
I believe that
WTOP-AM's rejection of BEM's advertisements clearly constitute "state
action" under a number of state action theories.
A. Public
Property
The broadcast
frequencies are a valuable and scarce resource belonging to the public. Although broadcast licensees are given the
temporary use of this public property for terminable three-year periods,
ownership and ultimate control remain vested in the people of the United
States. In Section 301 of the 1934
Communications Act, Congress evidenced its clear intention that the broadcast
spectrum should remain "public property":
It is the purpose of this Act... to
maintain the control of the United States over all channels of interstate and
foreign radio transmission; and to provide for the use of such channels but not
the ownership thereof, by persons for limited periods of time, under licenses
granted by Federal authority, and no such license shall be construed to create
any right, beyond the terms, conditions, and periods of the license. [Emphasis supplied.]
The mere fact that the licensee's
actions are taken with respect to public property should suffice to meet the
test of required "state action." See Tucker v. Texas, 326 U.S. 501
(1946) (actions by municipal officials over property of government-owned town
comprised "state action").
B. Private
Lessee of Public Property
It is equally
clear that the requirement of "state action" cannot be evaded by the
lease of public property, by a public entity, to a private individual. Discrimination by private lessees with
respect to public property, for purposes of the First Amendment, has
unequivocally been deemed state action by the courts. E.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
(state leased space in public building to privately owned restaurant);
Kissinger v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y. 1967)
(city "leased" public advertising space on city buses to
"private" advertising agency); Farmer v. Moses, 232 F. Supp. 154, 159
(S.D.N.Y. 1964) ("when a city or state leases public property [such
that]... services... are actually performed by a 'private' lessee, the latter
stands in the shoes of the government"); Anderson v. Moses, 185 F. supp.
727, 733 (S.D.N.Y. 1960) ("private... concessionaire [operated] on
public... property for the convenience and comfort of the public");
Hillside Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash. 1969)
(action by private advertising agency, pursuant to "contract" with
city, in removing advertisements from municipal buses comprised state action);
Wirta v. Alameda-Contra Costa Transit Dist., 434 P. 2d 982 (Cal. 1967)
(publicly owned advertising [*255] space on municipal buses "leased"
to private advertising company). In
Marsh v. Alabama, 326 U.S. 501 (1946), a privately-owned "company
town" was found to serve a "public function," and that its
exclusion of a person seeking to distribute religious literature comprised
"action" sufficient to bind it by the requirements of the First
Amendment. If under certain
circumstances the private owner of private property is bound by state action,
then surely the private user of public property is no less bound. See, e.g., Tanner v. Lloyd Corp., 308 F.
Supp. 128 (D. Ore. 1970) (privately owned shopping center); Schwartz-Torrance
Inv. Corp. v. Bakery & Con. Wkrs. U., 394 P. 2d 921 (Cal. 1964) (same).
In sum,
therefore, "a broadcaster seeks and is granted the free and exclusive use
of a limited and valuable part of the public domain; when he accepts that
franchise it is burdened by enforceable public obligations...." Office of
Communication of United Church of Christ v. FCC, 359 F. 2d 994, 1003 (D.C. Cir.
1966). Surely we could not assume that the federal government has leased public
property to private individuals, yet attempted to free them from the
obligations of the Constitution. First
Amendment obligations are certainly among those imposed upon all broadcast licensees.
C.
"Delegation" of State Power
When the state
"delegates" its authority over public property to the use and control
of a private entity, then the exercise of that use is state action for purposes
of the Construction.
[Where] a state
delegates an aspect of the elective process to private groups, they become
subject to the same restraints as the State.
[Citation.]... That is to say,
when private individuals or groups are endowed by the State with powers of
functions governmental in nature, they become agencies or instrumentalities of
the State and subject to its constitutional limitations. Evans v. Newton, 382
U.S. 296, 299 (1966) (although a state "delegated" its authority over
public park to private trustees, discriminatory conduct of trustees comprised
state action). WTOP-AM has exercised
powers of control over its broadcast frequency which are governmental in nature
-- that is, the exclusion of persons wishing to express their views through a
public facility of communication. See,
e.g., Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)
(discrimination by private restaurant lessee using and occupying publicly owned
land and building "dedicated to 'public uses'" was state action);
Smith v. Allwright, 321 U.S. 649 (1944) ("state delegation to a party of
the power to fix the qualifications of primary elections is delegation of a
state function that may make the party's action the action of the
state"). Because, like any lessee,
a broadcaster derives all his power through delegation from the federal
government, private actions taken by the broadcaster-licensee-trustee with
respect to his trust "res" are imbued with the attributes of state
action. A licensee can only exercise
the power he has, and the power he has flows from the government.
D.
Involvement of Regulatory Agency
In Public
Utilities Comm'n. v. Pollak, 343 U.S. 451 (1952), the Court addressed the
question whether action by a privately owned
[*256] public bus company, regulated
by the Public Utilities Commission, was to be treated for purposes of the
Constitution as action by a governmental entity. In finding sufficient state action, the Court specifically relied
upon the fact that the bus company "[operated] its service under the
regulatory supervision of the Public Utilities Commission of the District of
Columbia which is an agency authorized by Congress." Id. at 462. The Court
cited as authority the following proposition from American Communications Assn. v. Douds, 339 U.S. 382, 401 (1950):
"[When] authority derives in part from Government's thumb on the scales,
the exercise of that power by private persons becomes closely akin, in some
respects, to its exercise by Government itself." There is little doubt
that both the Congress and this Commission are substantially involved in the
operations of broadcast licensees.
Again, this involvement should provide the requisite state action. Indeed, the Commission itself has expressly
acknowledged that discrimination by licensees may constitute improper state
action:
[A] substantial
case has made that because of the relationship of the government of the United
States to broadcast stations, the Commission has a constitutional duty to
assure equal employment opportunity...
The contention is rested upon such decisions a Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961). Nondiscrimination Employment Practices
of Broadcast Licensees, 18 F.C.C. 2d 240, 241 & n.2 (1969).
E. State
Encouragement or Lack of Neutrality
In Evans v.
Newton, 382 U.S. 296 (1966), a state court permitted a municipality to transfer
its control over a public park to private trustees who denied Negroes access to
the facility. The Supreme Court barred
the discrimination. In a concurring
opinion, Justice White pointed out that a provision of state law permitted
private trust settlers to dedicate their property to the public for use as a
park and limit the use of the part "to the white race only." Although
this statute did not compel a settler to discriminate, it certainly indicated
that such an action would be valid.
According to Justice White, this statute "[departed] from a policy
of strict neutrality in matters of private discrimination by enlisting the State's
assistance only in aid of racial discrimination and... [involved] the State in
the private choice...." Id. at 306. By encouraging discrimination,
although not requiring it, the state sufficiently intertwined itself with
private discriminations to constitute state action. See also Reitman v. Mulkey, 387 U.S. 369 (1967).
There are close
parallels with WTOP-AM's censorship of BEM. Section 3(h) of the Communications
Act provides that licensees shall not be deemed a "common carrier,"
and the Commission, reversing prior precedent, see e.g., United Broadcasting
Co. (WHKC), 10 F.C.C. 515 (1945), has interpreted this to give licensees the
discretion to close their doors to persons seeking to use the station's
facilities. See Letter to Washington
Women's Strike for Peace, Nov. 22, 1965 (cited by the majority in the instant
case). I believe that the Commission's
interpretations and enforcement of the Commissions Act, together with its
improperly intentioned reversal of prior Commission doctrine, see Reitman v.
Mulkey, supra, provides similar "encouragement" for
discrimination [*257] by private licensees of the sort involved
here. Cf. Adickes v. S. H. Kress & Co., 38 U.S.L.W. 4434, 4444 (Sup.
Ct., June 2, 1970) (Brennan, J., concurring in part); Lombard v. Louisiana, 373
U.S. 267 (1963) (statements by Mayor and Superintendent of Police encouraging
private discrimination found to be state action). This encouraging private discrimination found to be state
action). This encouragement should
suffice for state action. We need not
address the question whether Section 3(h) of the Act itself
"encourages" licensee discrimination sufficient for state action.
F. State
Action Through Quasi-Judicial FCC Action
In Shelley v.
Kraemer, 334 U.S. 1 (1948), the Court announced that "action of state
courts and judicial officers in their official capacities is to be regarded as
action of the State...." Id. at 14. Although the Court also suggested that
state action might not be found where a State through its court merely
"abstained from action, leaving private individuals free to impose such
discriminations as they see fit." Shelley v. Kraemer, 334 U.S. at 19, this
distinction between court "action" and "inaction" has
apparently been weakened by later rulings.
Thus, in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court
remarked, in finding the First Amendment to protect the New York Times against
a civil suit by a private party, that "[it] matters not that the law has
been applied in a civil action and that it is common law only... The test is not the form in which state
power has been applied but, whatever the form, whether such power has in fact
been exercised." Id. at 265 (emphasis supplied). For a discussion of the state action implications of New York
Times Co. v. Sullivan, see Van Alstyne, Mr. Justice Black, Constitutional
Review, and the Talisman of State Action, 1965 Duke L. Rev. 219, 227-30.
In a recent
opinion, Edwards v. Habib, 397 F. 2d 687 (1968), Judge Wright, speaking for the
Court, discussed in detail current interpretations of Shelley v. Kraemer. After a review of the precedents and other
prevailing views, he summarized them thus:
It is been
suggested that there is state action, not only when an individual asserts a
claim of right against a state, but also when he asserts a claim of right against
the claims of right of other persons and the state resolves the conflict
according to its policy of what is reasonable under the circumstances, i.e.,
according to its law. [Footnote
omitted.] Once this "state action" is established, the question then
becomes simply "whether the particular state action in the particular
circumstances, determining legal relations between private persons, is
constitutional when tested against the various federal constitutional
restrictions on state action." [Citing Horowitz, The Misleading Search for
"State Action" Under the Fourteenth Amendment, 30 So. Cal. L. Rev. 208, 209 (1957)]. ... on this
theory, if it would be unreasonable to prefer [a particular private person's]...
interests, it would also be unconstitutional. Edwards v. Habib, supra at 695.
For commentators discussing this view, see Van Alstyne, Mr. Justice Black,
Constitutional Review, and the Talisman of State Action, supra, at 241-45;
Horowitz, Fourteenth Amendment Aspects of Racial Distrimination in "Private"
Housing, 52 Calif. L. Rev. 1 (1964); Williams, The Twilight of State Action, 41
Texas L. Rev. 347 (1963); Van Alstyne and Karst, State Action, 14 Stan. L. Rev.
3 (1961); Horowitz, The Misleading Search for "State Action" Under
the Fourteenth Amendment, supra.
Marsh v. Alabama, 326 U.S. 501, 509 (1946),
apparently provides support for this view.
There, the Court "[balanced] the Constitutional [*258]
rights of owners of property against those of the people to enjoy
freedom of press and religion" and stressed that the latter freedoms
occupied "a preferred position." See also Amalgamated Food Employees
Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), and New York
Times Co. v. Sullivan, 376 U.S. 254 (1964), in which state courts were used merely
as forums for the resolution of essentially private disputes. In all these cases speech freedoms were
involved, and in each case the Court "balanced" the rights to speech
under the First Amendment against the rights to the enjoyment of property under
the Fifth Amendment.
Rather than
forcibly entering the premises controlled by WTOP-AM to broadcast their message
through attempted "self-help," BEM has come to this Commission to
seek a legal adjudication of its rights.
After an investigation of the factual allegations and due consideration
of BEM's legal arguments, cf. Public
Utilities Comm'n v. Pollak, 343 U.S. 451, 462 (1952), the Commission has
effectively "ejected" BEM from WTOP-AM's facilities. Compare Amalgamated Food Employees Union
Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) (state trespass laws
used to eject picketers from private property). By adjudicating the rights and liabilities of the parties to this
matter, and therefore binding the parties to a certain course of action, this
Commission has invoked the "full panoply of its power," Shelley v.
Kraemer, 334 U.S. at 19, to banish BEM to silence. This, I believe, should provide sufficient state action to invoke
the restraints of the Constitution.
This is particularly so when the broadcast licensee is not a purely
private entity at all, but is licensed by the federal government and performs a
"public function" similar to that performed by the government toward
public parks and streets. See Marsh v.
Alabama, 326 U.S. 501, 507 (1946).
G. State
"Acquiescence"
In all the cases
discussed in the previous sections, the courts have sought to establish at
least some formal connection between private and public action. But in a number of important cases, the
immediate "action" necessary to invoke the First Amendment was not
direct, affirmative involvement by the government in private conduct, but state
"acquiescence" in a certain type of private actions. In all these cases, however, the state had
either relinquished its power to private entities (through assignments of
control, or leases), or simply abdicated its power rule (by failing to impose
requirements, for example, on corporate entities under its licensing
control). Accordingly, where the power
exercised by the private individual is normally or even potentially exercisable
by the state, but where the state has relinquished or abdicated that power, the
private actions pursuant to that power comprise state action -- that is, the
"permission" of private discrimination which the state has the power
to prevent. In the First Amendment
area, therefore, its seems that the refusal by the state to enforce freedom of
speech in forums under the potential control of the government may provide
sufficient "state action" to restrict the speech abridgement
activities of private individuals.
In Marsh v.
Alabama, 326 U.S. 501 (1946), for example, the Court found that a private
company town's discrimination involved state inaction sufficient to invoke the
Constitution:
[*259] [Mere] acquiescence
by the State in the corporation's use of its property... would still have been
performance of a public function and discrimination would certainly have been
illegal... And certainly the
corporation can no more deprive people of freedom of press and religion than it
can discriminate against Commerce...
[The] circumstance that the property rights to the premises where the
deprivation of liberty... took place, were held by others than the public, is
not sufficient to justify the State's permitting a corporation to govern a
community of citizens so as to restrict their fundamental liberties...
Id. at 507 & n. 4, 509 (emphasis supplied). Presumably because the corporation was
licensed by the state, and because the corporation performed a "public
function" similar to that of any municipality, state abdication of
authority comprised state action. To be
sure, there was technical "state action" present in Marsh, in that
the state was asked to enforce its trespass laws against an individual invading
private property. But this element
could not have been controlling. If,
for example, the company had sent its corporate officers out to the town's
border to prevent Marsh from setting foot on corporation property, and if Marsh
instead had asked for a court injunction to restrain the officers' actions and
permit his entry to the corporation's land, the result could have been no
different. Compare Tanner v. Lloyd
Corp., 308 F. Supp. 128, 130 (D. Ore. 1970) (action to compel entry to shopping
center).
In Burton v. Wilmington
Parking Authority, 365 U.S. 715 (1961), the Court found that discrimination by
a privately owned restaurant that had leased its facilities from the state
comprised state action. Again, the
Court stressed the element of inaction as supplying a necessary link between
private conduct and the Constitution:
[In] its lease
with [the restaurant] the [State Parking] Authority could have affirmatively
required [the restaurant]... to discharge the responsibilities under the
Fourteenth Amendment imposed upon the private enterprise as a consequence of
state participation. But no State may
effectively abdicate its responsibilities by either ignoring them or by merely
failing to discharge them whatever the motive may be... By its inaction, the Authority, and through
it the State, has not only made itself a party to the refusal of service, but
has elected to place its power, property and prestige behind the admitted
discrimination.
Id. at 725
(emphasis supplied). Other cases are in
accord. See, e.g., Evans v. Newton, 382
U.S. 296 (1966); Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321
U.S. 649 (1944).
There is, in the
case before us, a clear and direct analogy.
The government has "delegated" to WTOP-AM the use of valuable
public property. Although Congress has
exercised its power to prevent licensee censorship in other areas, stating in
Section 315(a) that the "licensee shall have no power of censorship over
the material broadcast under the provisions of this section," and although
the exercise of this power to prevent private censorship seems clearly
permissible under the Constitution, cf. United States v. Price, 383 U.S. 787
(1966); United States v. Guest, 383 U.S. 745 (1966); Katzenbach v. Morgan, 384
U.S. 641 (1966), Congress apparently has not barred various forms of licensee
censorship by specific legislation. By
failing clearly to prohibit licensee censorship, Congress and the Commission
have thus "permitted" a form of private censorship which appears
inconsistent with the First Amendment.
[*260] H.
State "Enforcement" of the First Amendment
The division
between state and private action is by no means distinct, for the decision to
inject the restraints of the Constitution into ostensibly private actions is
fundamentally one of policy. A number
of commentators, therefore, at least in the Fourteenth Amendment area of racial
discrimination, have argued that where important or "preferred"
rights are involved, the state cannot tolerate private discrimination or
abridgement of those rights. Otherwise,
the purposes of the Fourteenth Amendment would be thwarted. Accordingly, they have suggested that the
state implicates itself in private action when it fails affirmatively to enact
legislation barring private discrimination.
See, e.g., Black, Foreword: "State Action," Equal Protection,
and California's Proposition 14, 81 Have.
L. Rev. 69, 73-74 (1967); Silard, A Constitutional Forecast: Demise of
the "State Action" Limit on the Equal Protection Guarantee, 66 Colum.
L. Rev. 855 (1966); Henkin, Shelley v. Kraemer, Notes for a Revised Opinion,
110 U. Pa. L. Rev. 473, 481-85 (1962). Thus, according to this view, there is
unconstitutional state action whenever the state fails to eliminate private
discrimination. According to this
theory, the technical requirements of "state action" may be found,
via Shelley v. Kraemer, in any court action.
The only relevant question is where to draw the line between permissible
and impermissible state action -- since the limitless scope of Shelley would
apply state action to all judicial cases.
According to proponents of this view, the state has the obligation to
legislate against private discrimination until that legislation begins to
abridge other important, countervailing individual rights, such as liberty,
property, and privacy. See, e.g.,
Black, supra, at 100-103. What this
means, therefore, is that a state court could still enforce certain kinds of
private discrimination, even though the state itself could not discriminate in
such a manner. "The state court,
for instance, could constitutionally probate a will leaving the deceased's
property to the Catholic Church, even though the state could not
constitutionally make a comparable disposition of its own funds." Edwards
v. Habib, 397 F.2d 687, 692 n. 13 (d.c. c/ir. 1968) (dictum). "The state, through its police or
courts, could aid an individual in his quest to keep Negroes from a dinner
party in his home even though it could not keep Negroes from a courthouse cafeteria
or even from a privately owned hotel solely on account of their case."
Edwards v. Habib, supra, at 693 (dictum).
The point here is that in either case state action would exist; however,
that action would be constitutional, or unconstitutional, depending on a
balance of various important rights: liberty, property and privacy, balanced
against freedom from racial discrimination.
As yet, this
theory has not been frequently applied to discriminatory state action under the
First Amendment. This may in part be
historical accident, but it may also result from differences in the language of
the First and Fourteenth Amendments. On
the other hand, as the court in Edwards v. Habib, 397 F. 2d 687, 693-94 (D.C.
Cir. 1968), points out, the Supreme Court in New York Times Co. v. Sullivan,
376 U.S. 254, 265 (1964), has extended the protection of the First Amendment to
the New York Times against action by a private individual for libel. The fact that neither Congress nor the State
had [*261] made a law prohibiting libel was apparently deemed
irrelevant. The Supreme Court,
therefore, has found sufficient "state action" simply in a state
court adjudication of the rights of two private parties.
The California
Supreme Court has apparently adopted this position explicitly. In re Hoffman, 434 P. 2d 353 (Cal. 1967),
involved a trespass conviction of persons seeking to distribute anti-war
leaflets on the property of a privately-owned railroad terminal. Citing New York Times Co. v. Sullivan and
Marsh v. Alabama, the Court apparently felt that state action was inherent in
its own decision, no matter what the result, whenever it was required to
resolve the competing claims of private individuals:
If the state curtails First
Amendment freedoms to protect an interest that is nonexistent, whether claimed
on behalf of the government or on behalf of a private individual, if violates
the First and Fourteenth Amendments.
The "curtailment" of First
Amendment freedoms by the state could only have been a reference to sanctions
imposed by the court on the persons distributing the leaflets. State action, in other words, was assumed to
exist in the court's decision alone.
The only critical question was striking an appropriately weighted
balance between speech and other freedoms.
This balancing process was simplified for the court in Hoffman because
the rights of privacy and liberty that normally inhere in property ownership
were apparently "nonexistent." Once the owners of the railway
terminal had "opened up" their property to the general public, they
had (for profit) obviously given up any "privacy" they might
otherwise have had. Although the
station owners might have reclaimed their privacy by closing the terminal to
the public, they could not, at the same time, open it to the public for some
purposes, but exclude others on the alleged need for privacy.
Many courts and
legal scholars have pointed out the need for affirmative action by the
government to protect the rights guaranteed by the First Amendment. In Associated Press v. United States, 326
U.S. 1 (1945), the Supreme Court wrote:
It would be
strange indeed, however, if the grave concern for freedom of the press which
prompted adoption of the first Amendment should be read as a command that the
government was without power to protect that freedom... Surely a command that the government itself
shall not impede the free flow of ideas does not afford non-government
combinations a refuge if they impose restraints upon that constitutionally
guaranteed freedom... Freedom to
publish is guaranteed by the Constitution, but freedom to combine to keep
others from publishing is not. Freedom
of the press from governmental interference under the First Amendment does not
sanction repression of that freedom by private interests.
Id. at 20.
And Justice Fortas has remarked, "The courts may not and must not permit
either public or private action that censors the press." Time, Inc. v.
Hill, 385 U.S. 374, 420 (1967) (dissenting, joined by Warren, C.J., and Clark,
J.).
In First America
& Dev. Corp. v. Daytona Beach News-Journal Corp., 196 So. 2d 97, 99 (Fla.
1966) the court observed:
Freedom of the press was never
intended to be a special privilege extended to its publishers. On the contrary, it was conceived by the
writers of the Constitution and of the Bill of Rights to be a right of the people
in a democracy to unrestricted information and presentation of views on
government for which [*262] the press was a tailor-made medium of
dissemination. Freedom of the press,
therefore, is a people's personal right rather than a property right...
Other courts have concurred. "Those [constitutional] guarantees are
not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press
assures the maintenance of our political system and an open society."
Time, Inc. v. Hill, 385 U.S. 374, 389 (1967). "[Freedom] of the press is a
right which belongs to the public; it is not the private preserve of those who
possess the implements of publishing." State v. Buchanan, 436 P. 2d 729,
731 (Ore. 1968). "It is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount." Red Lion Broadcasting Co.,
Inc. v. FCC, 395 U.S. 367, 390 (1969).
There is, in
fact, a strong argument that Congress, through the Communications Act of 1934,
enforced the First Amendment in the area of broadcasting by applying its
restraints to private licensees.
According to this view, Congress intended licensees to operate in the
public interest, convenience and necessity, and this necessarily entailed
patterns of operation consistent with First Amendment prohibitions on
censorship. Indeed, at one time the
Commission itself apparently adopted this view. In United Broadcasting Co. (WHKD), 10 F.C.C. 515 (1945), for
example, the Commission said: "The spirit of the Communications Act of
1934 requires radio to be an instrument of free speech," and it warned
against "any type of censorship which would undertake to impose the views
of the licensee on the material to be broadcast." Id. at 517-18. If the
Communications Act does apply the First Amendment to broadcasters, then the
search for state action becomes unnecessary.
Yet what has
happened to that free and open "marketplace of ideas" since the
founding of our country? As R. H. S.
Crossman has seen, a new political, economic and social revolution "has
concentrated coercive power and thought control in a few hands." Power has
shifted from those who control the "means of production" to
"those who control the media of mass communication and the means to
destruction (propaganda and the armed forces)." R. H. S. Crossman, The
Politics of Socialism 44 (1965).
Another commentator has noted, "it is not that the mass
communication industry is pushing certain ideas and rejecting others but rather
that it is using the free speech and free press guarantees to avoid opinions
instead of acting as a sounding board for their expression." Barron,
Access to the Press -- A New First Amendment Right, 80 Harv. L. Rev. 1641, 1646
(1967). And V. O. Key has warned:
[Attention] to
the economic aspects of the communications industries serves to emphasize the
fact that they consist of commercial enterprises, not public service
institutions... They sell advertising
in one form or another, and they bait it principally with entertainment. Only incidentally do they collect and
disseminate political intelligence...
[Newspaper] publishers are essentially people who sell white space on
newsprint to advertisers...
V. O. Key, Public Opinion and American Democracy
378-79 (1961).
The growing
concentration of power over the media of communication into private corporate
hands will require new concepts of "state action" if freedom of
speech is to be preserved. Private
corporate censorship [*263] by radio and television licensees must
become a thing of the past if dissent and diversity of views in this country is
to flourish. See generally Letter to
Hon. Richard L. Ottinger [Judy Collins incident], FCC Public Notice No. 47876,
April 20, 1970 (dissenting opinion); Johnson, Public Channels and Private
Censors, The Nation, March 23, 1970, p. 329.
There is, therefore, a direct legal and social connection between the
power of the mass media, whose owners stand like a colossus astride the
channels of communications, and the state action requirement that the First
Amendment's protection does not become operative until speech is abridged by a
government-involved entity. Marsh v.
Alabama, 326 U.S. 501 (1946), is perhaps the opening wedge. It holds that private corporations must not
be unleashed to abridge personal freedoms at will. A. J. Berle, in commenting on Marsh v. Alabama, has stated this
important principle with great perceptivity:
The emerging principle appears to be
that the corporation... is as subject to constitutional limitations which limit
action as is the state itself... The
preconditions of application are two: the undeniable fact that the corporation
was created by the state and the existence of sufficient economic power
concentrated in this vehicle to invade the constitutional right of an
individual to a material degree. This
is new as a rule of law, but it is typically American in tradition... The principle is logical because... the
modern state has set up, and come to rely on, the corporate system to carry out
functions for which in modern life by community demand the government is held
ultimately responsible. It is unlimited
because it follows corporate power whenever that power actually exists... Instead of nationalizing the enterprise,
this doctrine "constitutionalizes" the operation. Berle, Corporate Activity -- Protection of
Personal Rights From Invasion Through Economic Power, 100 U. Pa. L. Rev. 933,
942-43 (1952); see also, St. Antoine, Color Blindness But Not Myopia: A New
Look at State Action, Equal Protection and 'Private' Racial Discrimination, 59
Mich. L. Rev. 993 (1961); Miller, The Constitutional Law of the 'Security
State.' 10 Stan. L. Rev. 620, 661-66 (1958).
There are only a
limited number of ways in which a person can obtain access to the mass media of
communication: (i) buy a radio or television station; (ii) buy commercial space
for promotion of goods and services; (iii) develop a situation worthy of news
coverage (e.g., demonstrations, street marches, etc.); (iv) obtain the sympathy
of an editorial staff member who will present one's views by "proxy";
(v) obtain rebuttal time under the fairness, personal attack, or equal time
doctrines; or (vi) purchase time for non-commercial speech. Yet in every case, access to the most
important media of communication our century have seen is severely limited.
Thus, (i) the
Commission has already taken steps to make access through ownership even more
difficult than it already is. See
Policy Statement on Comparative Hearings Involving Regular Renewal Applicants,
35 Fed. Reg. 822 (1970); Petitions by B.E.S.T., 21 F.C.C. 2d 355 (1970),
reconsideration denied, FCC 70-738 (July 21, 1970). (ii) Commercial space for goods and services both excludes those
with purely political or social speech, and abdicates the bulk of radio and
television "access time" to monolithic commercial and corporate
enterprises. (iii) Demonstrations and
street marches soon fade in newsworthiness, and people wishing to reach the
bulk of the American [*264] people must increasingly resort to the
tactics of extremism to capture the largess of the television eye. (iv) The
sympathy of a radio or television station's editorial staff is often difficult
to obtain, and is perhaps nonexistent in those communities with few radio or
television outlets. And (v), the
Commission has been reluctant to apply the fairness doctrine evenhandedly to
those with minority or dissenting views.
See, e.g., Letter to Mr. Donald A. Jelinek, FCC 70-595 (June 4, 1970)
(anti-military recruitment announcements); Letter to Mrs. Dorothy Healey, FCC
70-658 (June 24, 1970) (attack on member of Communist Party for
"unpatriotic" views).
Only (vi),
therefore the ability to purchase time at going commercial rates, can offer
many Americans any opportunity for electronic speech. Although the First Amendment was not enacted to sanctify the
views held by the corporate owners of the mass media, government inattention
and failure to "enforce" the First Amendment has had that
effect. Accordingly,
"non-commercial access" may be required under the First Amendment to
preserve or create a true "marketplace of ideas" in the electronic
media. Both commentators and courts
have recognized this proposition. See,
e.g., Silver, Free Speech on Private Property, 19 Cleveland State L. Rev. 372
(1970); Barron, An Emerging First Amendment Right of Access to the Media?, 37
Geo. Wash. L. Rev. 487 (1969); Horning, The First Amendment Right to a Public
Forum, 1969 Duke L. Rev. 931; Barron, Access to the Press -- A New First
Amendment Right, 80 Harv. L. Rev. 1641, 1644-50 (1967); Gorlick, Right to a
Forum, 71 Dick. L. Rev. 273 (1967); Note, The Listener's Right to Hear in
Broadcasting, 22 Stan. L. Rev. 863 (1970); Note, Resolving the Free Speech --
Free Press Dichotomy: Access to the Press Through Advertising, 22 U. Fla. L.
Rev. 293, 304 (1969).
I conclude,
therefore, from the foregoing discussion, that BEM's advertisements are
constitutionally protected speech under the First Amendment, and that WTOP-AM's
action in refusing that proffered speech is sufficiently involved with the
state to invoke the restraints of the Constitution. I have engaged in this detailed treatment of "state
action" for one principle reason: to lay conclusively to rest any argument
that licensees have the freedom to censor at will, unrestrained by the First
Amendment. They do not. Radio and television licensees, when they
act vis-a-vis the people, must be treated, for purposes of the Constitution, as
if they were agents of the government.
Broadcast licensees have no more absolute right to impose bans on speech
over their facilities than do groundskeepers in public parks. In all cases involving demands for
"access" to the mass media, the only question is whether the
broadcaster's restrictions and limitations are reasonable. A licensee may obviously impose reasonable
"time, place and manner" restrictions upon the use of his facility;
but he can no more absolutely ban certain kinds of speech or types of speakers
than the government can ban citizens from public parks and streets. Cf.
Hague v. CIO, 307 U.S. 296 (1939).
[*265] Over the past few years, the courts have dealt with a number of cases in which persons wished to exercise speech freedoms in conjunction with public or private property -- for example, public streets and parks, train stations, bus terminals, schools, and so forth. In most of these cases, the court has first established the existence of state action (or disposed of it as unimportant). Then, the court has asked two types of questions: first, is the property in issue an appropriate forum for the communication of views; and second, has the person owning or controlling that forum "discriminated" between individuals or particular views in a manner which is inconsistent with the Constitution. The answer to the first question normally depends on whether the property has "traditionally" been used as a forum for communication, as in Hague v. CIO, supra, or whether the property has been "opened up" to the general public in such a manner that speech on that property would be a normal activity. The answer to the second question has generally turned on whether