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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.


 

DISSENTBY: JOHNSON

 

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 the property owner's restrictions on speech are "reasonable," and this in turn depends on whether the speech interferes with any important property right (such as privacy, exclusive possession, freedom from interference or obstruction, etc.) which is worth preserving. As stated in In re Hoffman, 434 P. 2d 353 (Cal. 1967), the courts will not curtail First Amendment freedoms "to protect an interest that is nonexistent...." Id. at 356 (emphasis supplied).

The doctrines evolved by the courts are contained in the following proposition: When private property, which is an appropriate forum for communication, is "opened up" to general use by the public them the "private" owner of that property "waives" his traditional property rights to privacy and exclusivity of use, and cannot abridge the speech rights of individuals seeking to use his "forum" for the expression of views. Under certain circumstances (although perhaps not in the broadcast area), the private owner may entirely close his property to the public; but if he opens it at all, he demonstrates that he has no real property interest of "privacy," and he cannot therefore close it selectively to specific persons or particular views.

 

A. Existence of a "Forum"

In Marsh v. Alabama, 326 U.S. 501 (1946), a person seeking to distribute religious literature on the streets of a privately owned "company town" was prosecuted for trespass at the instance of the company owners. The Court reversed, finding that the privately owned town in fact performed a "public function" similar to that of any town, whether private or publicly owned, and stated:

Ownership does not mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it...

... Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such a manner as the channels of communication remain free. [*266] Id. at 506, 507. Although the Court felt the private corporation could entirely "close the sidewalk" to the public, Marsh v. Alabama, supra at 505 n. 2, the corporation could not "discriminate" against certain religious views once it had generally opened the sidewalk up to the public. Id. at 507.

Many other cases have followed the doctrine of Marsh v. Alabama, holding that in certain circumstances private property "may, at least for First Amendment purposes, be treated as though it were publicly held." Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 316 (1968). See, e.g., Tanner v. Lloyd Corp., 308 F.Supp. 128 (D. Ore. 1970); Hillside Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash. 1969); In re Lane, 457 P. 2d 561 (Cal. 1969); In re Hoffman, 434 P. 2d 353 (Cal. 1967); Schwartz-Torrance Inc. Corp. v Bakery & Con. Wkrs. U., 394 P. 2d 921 (Cal. 1964); Amalgamated Cloth. Wkrs. v. Wonderland Shop. Ctr., 122 N.E. 785 (Mich. 1963) (affirmance by equally divided court). For other cases in which the court found the existence of a "public forum" for communication of views, see, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) (public school); Wolin v. Port of New York Authority, 392 F. 2d 83 (2d Cir. 1968) (bus terminal); Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969) (public high school newspaper); Kissinger v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y. 1967) (public subway walls); Wirta v. Alameda-Contra Costa Transit District, 343 P. 2d 982 (Cal. 1967) (public busses); Danskin v. San Diego Unified School Dist., 171 P.2d 885 (1946) (public school buildings); People v. St. Clair, 56 Misc. 2d 326, 288 N.Y.S. 2d 388 (Crim. Ct. 1968) (public subway platform).

In sum, these cases all stand for the proposition that where property, publicly or privately owned, is "opened up" for general use by the public, whether or not that use directly involves speech activities, then the facility cannot be closed to speech unless its exercise directly and substantially interferes with the facility's primary use -- for example, as a shopping center, bus station, railway terminal, subway, or school.

In the case before us involving WTOP-AM's rejection of BEM's advertisements, there seems little question that the frequency controlled by WTOP-AM is a "forum" for the communication of ideas. Indeed, that appears to be its exclusive purpose, whether those ideas be political, commercial or entertainment. And there is also no question that WTOP-AM has "opened up" the use of that frequency to the general public -- by making commercial advertising time available to the general public on a first-come, pay-as-you-go basis. See, e.g., Kissinger v. New York City Transit Authority, supra; Zucker v. Panitz, supra; Hillside Community Church, Inc. v. City of Tacoma, supra; and Wirta v. Alameda-Contra Costa Transit District, supra, all cases in which the owner of private or public property opened up his facility for the display of private commercial advertisements. In each case, the court found that a "public forum" for the communication of views was present. Whether or not WTOP-AM's opening of its forum for the communication of private commercial views constitutes an "opening up" for non-commercial (but also paid) views, will be considered below.

 

[*267] B. "Reasonable" Use of Forum

Every licensee must retain some power to reject programming -- if only when if fails to meet certain quality standards, or violates federal law (lotteries, obscenity, etc.). But just as clearly the licensee, as a trustee for the public, does not possess unlimited power to monopolize the use of the airwaves. The essential question, therefore, is whether the use of advertising "space" or the broadcast spectrum by BEM is "reasonable" and consistent with other uses of that spectrum by the licensee.

The Commission and the courts must begin to draw guidelines for "reasonable" access to the broadcast frequencies, seeking to ensure that the electronic media of twentieth century communication are as open to the public as the soap boxes, public parks, and town hall meetings of the last century. Cf. Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 21-32. On the one hand, "[the] rights of free speech... do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." Cox v. Louisiana, 379 U.S. 536, 554 (1964) (Goldberg, J.). But on the other hand, "the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment." Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 390 (1969).

The FCC and the courts have already begun to develop variants of the access doctrines latent in Red Lion. The fairness, personal attack, and equal time doctrines all curtail the licensee's discretion to reject programming. So does the requirement that the licensee ascertain community needs and interests and devote "some significant proportion of [its]... programming" to them. City of Camden, 18 F.C.C. 2d 412, 421 (1969). In light of the "state action" discussion above there may well be limits on the ability of a licensee to censor out of a prepared program, during broadcast, the remarks of an invited guest. See Letter to Cong. Richard L. Ottinger [Judy Collins incident], FCC Public Notice No. 47876, April 20, 1970 (dissenting opinion). In the case here before us, BEM is willing to pay the "going commercial rate" to gain access to WTOP-AM's facilities. Therefore, unlike fairness doctrine cases, a requirement of access imposed on WTOP-AM with respect to this anti-war announcement would impose no financial burden on the station. This is an extremely important point. Compare Letter to Mr. Donald A. Jelinek, FCC 70-595, (June 4, 1970) (dissenting opinion at pp. 21-22) (free public service announcements would impose no financial burden on licensee). So long as the party seeking access to a broadcast facility is willing to pay the going rate, we need not face the equal protection question posed by persons financially unable to pay for their "privilege" of electronic speech.

The state and federal courts have, during the past few years, addressed precisely the same question before this Commission -- although in the somewhat different context of spacial forums (parks, streets, train terminals, etc.), and not electronic forums. In every case involving persons who sought only to use the advertising facilities provided to commercial advertisers, the courts decisively ruled that the owner of [*268] the property in question could not admit commercial advertisements and exclude political ones.

The germinal case in this area was decided by the California Supreme Court in 1967. In Wirta v. Alameda-Contra Costa Transit Dist., 434 P. 2d 982 (Cal. 1967), the members of Women for Peace brought suit against a public Transit District, operating the municipal bus service, and a private advertising company which serviced the Transit District's buses. The buses contained advertising space above the passengers' seats, and the Transit District leased that space to the advertising company which, in turn, re-leased it to private commercial advertisers. (The parallel with FCC licensing of public property to private licensees who re-lease that frequency space to commercial advertisers is obvious.) In 1964, Women for Peace requested that it be allowed to place the following advertisement in defendants' coaches, at the standard rate:

 

"Mankind must put an end to war or war will put an end to mankind."

 

President John F. Kennedy.

Writ to President Johnson: Negotiate Vietnam.

Women for Peace, P.O. Box 944, Berkeley."

 

Defendants refused to accept the advertisement, on the ground that the advertisement conflicted with the District's advertising policy:

The... District... accepts only commercial advertising for the sale of goods and services, except that political advertising will be accepted in connection with and at the time of a duly called election being held within the boundaries of the District, and further subject to the conditions that... space be made equally available to opposing candidates or sides of a ballot measure.

 

The advertisement in question was rejected on the ground that "controversial subjects" were not consistent with this policy. (Again, the parallels with WTOP-AM's policy, as well as the Commission's equal time doctrine, are obvious.)

The court first asserted that the content of the advertisement was "undeniably protected by the First Amendment," despite its status as a paid message. 434 P. 2d at 984. It then observed that the advertisements in question could not conceivably interfere with the District's primary function of providing transportation. 434 P. 2d at 985. And the court then defined the problem as one "in which a governmental agency [the parallel to WTOP-AM has been made in the previous section] has refused to accept an advertisement expressing ideas admittedly protected by the First Amendment for display in a forum which the agency has deemed suitable for the expression of ideas through the medium of paid advertisements." 434 P. 2d at 985. The court concluded:

[Defendants,] having opened a forum for the expression of ideas by providing facilities for advertisements on its buses, cannot for reasons of administrative convenience decline to accept advertisements expressing opinions and beliefs within the ambit of First Amendment protection.

434 P. 2d at 985 (emphasis supplied). The "vice" of the district's censorship lay in choosing "between classes of ideas..., sanctioning the expression of only those selected, and banning all others." This the court described as "a most pervasive form of censorship." 434 P. 2d at 986.

[*269] The court also expressed itself with absolute bluntness on the perversity of elevating commercial speech to a status more important than political speech. "[In] the totality of man's communicable knowledge," the court said, "that which bears no relationship to material value preponderates." 434 P. 2d at 986. The court observed:

A cigarette company is permitted to advertise the desirability of smoking its brand, but a cancer society is not entitled to caution by advertisements that cigarette smoking is injurious to health. A theater may advertise a motion picture that portrays sex and violence, but the Legion of Decency has no right to post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement or existing air pollution statutes. 434 P.2d at 986-87.

Finally, the court relied upon a companion case, In re Hoffman, 434 P. 2d 353 (Cal. 1967), to state the controlling issue before it: "the test is not whether petitioners' use of the station was a railway use, but whether it interfered with that use." 434 P. 2d at 356 (emphasis supplied). Because the bus company was unable to show that presentation of political commercials interfered with any legitimate function of its transportation function, its refusal to accept political advertising was impermissible.

The analogies to WTOP-AM are almost exact. WTOP-AM is, for purposes of the First Amendment, an "agent" of the state -- just as was the private advertising agency leasing "public property" from the transit authority. WTOP-AM rejected BEM's advertisement, also on the ground that it accepted only "commercial" advertising. There was no evidence that acceptance of the advertisement would "interfere" with WTOP-AM's normal function of presenting advertising space to sponsors and entertainment programming to listeners. One must conclude, therefore, that WTOP-AM cannot reject BEM's advertisements any more than the transit authority could reject those of the Women for Peace.

In Kissinger v. New York City Transit Authority, 274 F. Supp. 328 (S.D.N.Y. 1967), the court reached precisely the same result as in Wirta, and for identical reasons. There too an anti-war group wanted to place an advertisement on the walls of the subway; a private advertising corporation, operating under contract to the city, refused, due to the "controversial" nature of the views expressed.

The Transit Authority made two arguments. First, they argued that they only accepted commercial advertisements, public service announcements, and political advertising during elections -- and that acceptance of these was not a generalized waiver to include political advertisements. The Court quickly rejected this argument, stating that the Authority and the Advertising Company "cannot accept some posters and refuse the plaintiffs' for reasons that conflict with the First Amendment guarantee of the right to freedom of speech." 274 F. Supp. at 442. Second, the Transit Authority argued that the posters were inflammatory, would be displayed to a "captive audience," and might cause disorder and irritation. Again the court swiftly disposed of this argument. Citing Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949), the court said:

[*270] [A] function of free speech... is to invite dispute... Speech is often provocative and challenging. It may... have profound unsettling effects... That is why freedom of speech is... protected against censorship...

 

The parallel with the case involving WTOP-AM again is obvious.

In Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969), a group of high school students brought an action for declaratory and injunctive relief to compel a high school newspaper to accept a paid advertisement in opposition to the Vietnam war. The defendant school authority argued that the paper's policy was to accept "only purely commercial advertising" and to reject all advertising (even in support of student government nominees) which was politically oriented. Citing Wirta, the court ruled in the plaintiff's favor:

Here, the school paper appears to have been open to free expression of ideas in the news and editorial columns as well as in letters to the editor. It is patently unfair in light of the free speech doctrine to close to the students the forum which they deem effective to present their ideas.

299 F. Supp. at 105. The court could see no disruption of the newspaper's normal function that could conceivably result from the antiwar advertisements.

Finally, in Hillside Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash. 1969), a church group sought to place "end the war in Vietnam" posters on transit buses operated by the city of Takoma, Washington, where advertising space was under the control of a private lessee advertising agency. Citing Wirta and Kissinger, the court ruled that "[Once] a municipality or public body enters the field of advertising, therefore, the law requires that a showing of a 'clear and present' danger must be made in order to limit such advertising without conflicting with guarantees of freedom of speech under the First and Fourteenth Amendments." 455 P. 2d at 354. The court found the rejection to be "clear acts of censorship" in violation of plaintiff's first amendment rights.

The licensee has argued that subjects of the type contained in the BEM advertisements "require a more in-depth analysis than can be provided in a 10, 20, 30, or 60 second announcement." It seeks to use this pathetically weak justification to overcome the Supreme Court's "clear and present danger" test, see Hillside, supra, and the First Amendment to the Constitution. This reasoning must be rejected out of hand. Once WTOP-AM has opened its forum up to 10, 20, 30, and 60 second commercial spots, it cannot withhold similar time periods from persons seeking to fill them with political speech. It borders on arrogance for WTOP-AM to assert that $4-5,000 automobiles which pollute the air and endanger human life may be sold to an unsuspecting public in 30 second spot announcements, but that the simple message, "End the War in Vietnam," cannot be communicated in a short announcement. Neither the government, nor a licensee, must be permitted to arrogate to itself the totalitarian role of deciding, for the people wishing to speak, how they will be permitted to present their thoughts. Similarly harsh and unjustifiable restrictions have been struck down in many other related cases, and I need not detail their reasoning here. See, e.g., Wolen v. Port of New York Authority, 392 F. 2d 83 (2d Cir. 1968); Tanner v. Lloyd Corp., 308 F. Supp. 128 (D. Ore, [*271] 1970); In re Lane, 457 P. 2d 561 (Cal. 1969); People v. St. Clair, 288 N.Y.S. 2d 388 (Crim. Ct. 1968); In re Hoffman, 434 P. 2d 353 (Cal. 1967); Schwartz-Torrance Inv. Corp. v. Bakery & Con. Wkrs. U., 394 P. 2d 921 (Cal. 1964).

The argument has been made that if WTOP-AM is forced to accept political advertisements, then commercial space will become limited. These arguments have also been considered by the courts, and summarily rejected. In Kissinger v. New York City Transit Authority, 274 F. Supp. 328 (S.D.N.Y. 1967), the court remarked:

Defendants also argue that if they accept the posters for display, they will have to accept other posters relating to [political issues]... with the result that commercial advertising will become curtailed and the subways will become a political and ideological battlefield. Even if the Authority and the Advertising Company are required to accept the posters for display, however, it does not follow that others must be accepted... [The] Authority and the Advertising Company could impose reasonable regulations on the display of plaintiffs' posters and others of a similar nature as to the number to be displayed and the time and place for their display.

 

See also, Farmer v. Moses, 232 F. Supp. 154 (S.D.N.Y. 1964); Wirta v. Alameda-Contra Costa Transit Dist., 434 P. 2d 982 (Cal. 1967). Access to WTOP-AM's facilities for a "reasonable" number of political advertisements need not open the floodgates to a limitless political battleground -- although in many respects this might be preferable to the existing commercial wasteland we see spread out before us today. Nothing would prevent the licensee or the Commission from adopting "reasonable" limitations on the number of both commercial and political advertisements to be broadcast.

Perhaps not surprisingly, the Commission has adopted precisely such an approach in prior cases. In United Broadcasting Co. (WHKG), 10 F.C.C. 515 (1945), for example, a labor union filed a complaint against a licensee for refusing to sell the union time to solicit memberships and discuss controversial subjects (such as "race, religion, and politics"). The Commission designated the station's license renewal for hearing to determine "the duties of a licensee... to maintain an overall program balance by providing time on a non-discriminatory basis for discussion of public controversial issues and for the solicitation of memberships for nonprofit organizations." Id. at 517 (emphasis supplied). During the hearing, it developed that the station's policies were governed by the Code of the National Association of Broadcasters. The Code provided that "no time shall be sold for the presentation of public controversial issues, with the exception of political broadcasts..., and that solicitation of memberships in organizations, whether on paid or free time, should not be permitted except for charitable organizations, such as the American Red Cross...." Id. at 516. Following the hearing, both parties filed a joint motion, stating that the licensee had adopted a new policy, and asking for dismissal of the proceedings. The new policy stated, in pertinent part:

(a)... Station WHKC [will]... consider each request for time solely on its individual merits without discriminations and without prejudice because of the identity of the personality of the individual, corporation, or organization desiring such time.

[*272] (b) Requests... will... be considered in the light of the contribution which their use of time would make toward a well-balanced program schedule...

(c) Station WHKC will make time available, primarily on a sustaining basis, but also on a commercial basis, for the full and free discussion of issues of public importance, including controversial issues, and dramatizations thereof... [There] will be no discrimination between business concerns and nonprofit organizations... Nonprofit organizations will have the right to purchase time for solicitation of memberships.

* * *

(e) The censorship of scripts is an evil repugnant to the American tradition of free speech and a free press, whether enforced by a Government agency or by a private radio station licensee... Station WHKC will not censor scripts, or delete any matter contained in them...

(f) The station will see that its broadcasts on controversial issues... maintain a fair balance among the various points of view..., both sustaining and commercial alike.

The parties believe that the above statement of policy properly sets forth the duties of a licensee under the Communications Act of 1934...

United Broadcasting Co. (WHKC), supra at 516-17 (emphasis supplied).

The Commission, on the basis of this newly adopted policy statement, dismissed the proceedings. Stating that the policy was "fair and nondiscriminatory," id. at 518, we said:

The Commission... is of the opinion that the operation of any station under the extreme principles that no time shall be sold for the discussion of controversial public issues and that only charitable organizations and certain commercial interests may solicit memberships is inconsistent with the concept of public interest established by the Communications Act as the criterion of radio regulations... The Commission recognizes that good program balance may not permit the sale or donation of time to all who may seek it for such purposes and that difficult problems calling for careful judgment on the part of station management may be involved in deciding among applicants for time when all cannot be accommodated. However, competent management should be able to meet such problems in the public interest and with fairness to all concerned. The fact that it places an arduous task on management should not be made a reason for evading the issue by a strict rule against the sale of time for any programs of the type mentioned.

Id. at 518 (emphasis supplied).

The point is simply that the Commission has previously ruled that this policy comports with the "duties" of a licensee, and that refusals to sell time for the discussion of controversial issues of public importance would violate the 1934 Communications Act. The Commission clearly stated that a "strict rule" against the sale of such time would be "extreme," and that "competent management" should be able to preserve balance and fairness between applicants. BEM asks for no more here. That this Commission has retrogressed in the 25 years since its WHKC opinion is a sad commentary indeed.

IV. SECTION 3 (H) AND "COMMON CARRIERS"

Section 3(h) of the 1934 Communications Act provides, in rather uninformative fashion:

"Common carrier" or "carrier" means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy...; but a person engaged in radio broadcasting shall not insofar as such person is so engaged, be deemed a common carrier. [*273] 47 U.S.C. 153(h) (1964) (emphasis supplied). The majority has seized upon this general language to argue that a licensee has the power categorically to reject all requests by politically-oriented groups to purchase time. According to the majority, "[if] the licensee were deemed to be a common carrier,... the result would be not only chaotic but a wholly different broadcasting system which Congress has not chosen to adopt." There are a number of reasons why this argument is faulty.

First, it is interesting to note that the Commission itself has rejected this argument in prior cases. In United Broadcasting Co. (WHKG), 10 F.C.C. 515 (1945), for example, discussed above, the Commission clearly stated that Section 3(h) of the Act in no way interfered with the "duty" of licensees to make a reasonable amount of time available for purchase or on a sustaining basis to persons wishing to discuss issues of controversy and public importance:

It is recognized, of course, that the physical limitations on the amount of spectrum space available for radio broadcasting and the large demands upon radio stations for use of time make it impossible for every person desiring to use the facilities of a station to be granted this privilege. Under section 3(h) of the act, broadcast stations are expressly declared not to be common carriers. These facts, however, in no way impinge upon the duty of each station licensee to be sensitive to the problems of public concern in the community and to make sufficient time available, on a nondiscriminatory basis, for full discussion thereof, without any type of censorship which would undertake to impose the views of the licensee upon the material to be broadcast. The spirit of the Communications Act of 1934 requires radio to be an instrument of free speech, subject only to the general statutory provisions imposing upon the licensee the responsibility of operating its station in the public interest.

Id. at 517-18 (emphasis supplied).

Second, it seems clear, at least from the cited passage, that Section 3(h), whatever its function, was not designed to permit licensees flatly to reject advertisements for non-commercial or controversial causes. It seems likely that Congress, in enacting Section 3(h), intended only to make the rather detailed and complicated "Common Carrier" provisions in Title II of the 1934 Act inapplicable to broadcasting. A right of reasonable access, sought here by BEM, would certainly be consistent with the principles enunciated in United Broadcasting Co. (WHKC), supra, without involving Title II of the Act. Obviously, even under the access principles sought by BEM a licensee would not be forced to take everyone who sought air time. After all, a licensee may not have enough airtime or frequency space available to accommodate all those wishing to advertise. But it does not follow, either, that a licensee can exclude everyone who seeks access. There are many ways of permitting reasonable access by non-commercial advertisers without having to accept them all. Licensees, for example, might decide to accept 50% commercial and 50% non-commercial advertising. In each category, some might be turned away -- for any number of reasons. But the broadcaster would still be obliged to maintain an adequate "balance" between viewpoints for purposes of the fairness doctrine. And we have already ruled that "competent management should be able to meet such problems in the public interest." United Broadcasting Co. (WHKC), 10 F.C.C. 515, 518 (1945). This principle [*274] was underscored by the court in Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966), when it said:

The argument that a broadcaster is a not a public utility is beside the point. True it is not a public utility in the same sense as strictly regulated common carriers or purveyors of power, but neither is it a purely private enterprise like a newspaper or an automobile agency.

Id. at 1003.

A third defect in the majority's reasoning is that the Commission itself has, on several occasions, limited the discretion of licensees to accept or reject persons wishing to use their facility to express views. In Letter to Nicholas Zapple, FCC 70-598 (1970), for example, we ruled that when a spokesman for a political candidate appears in support of that candidate over a radio or television station, then, even though the equal time requirements of Section 315(a) of the Communications Act are inapplicable, the licensee must nevertheless give equal opportunities to supporters of the opposing candidate. Such opposing supporters would not only be the "appropriate" and "logical" persons to reply, but as we stated, "it would not be reasonable" for a licensee to refuse such a spokesman time. In 1968, on another occasion, we stated that under certain circumstances the fairness doctrine would require a licensee to put on one particular person -- where "[there] is a clear and appropriate spokesman to present the other side of the attack issue -- the person or group attacked." Memorandum Opinion and Order, 12 F.C.C. 2d 250, 252-53 (1968).

The point is simply that these requirements do not violate Section 3(h) of the Act, even if they do require a licensee to accept the programming offered by a specific person. A system of reasonable access is perfectly consistent with Section 3(h) of the Act. Not only that, it is required by the First Amendment under the principles described above. The principles and policies of the First Amendment do not dictate the amount of non-commercial advertising licensees must accept. They require only that licensees must accept some non-commercial advertising, and that the amount accepted must be reasonable.

CONCLUSION

In sum, BEM's advertisements are protected speech under the First Amendment; WTOP-AM's actions in rejecting the advertisements subject it, under concepts of state action, to the restraints and policies of that Amendment; WTOP-AM has presented no reasonable justification for its discrimination between commercial and non-commercial advertising; and Section 3(h) of the Communications Act is perfectly consistent with procedures permitting a right of reasonable access to the broadcasting media for political advertisements.

Accordingly, I would grant the petitioners' request and enforce their demand for access to the public facilities guarded so zealously by the licensee. This the majority has refused to do. I dissent.

 


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