Public Interest Briefs

Congressional Ban Against Editorializing by Public Broadcasters Ruled Unconstitutional

Center attorneys won a major legal victory in August when the United States District Court in Los Angeles declared unconstitutional Section 399 of the Public Broadcasting Act prohibiting noncommercial television and radio stations from editorializing. Judge Malcolm M. Lucas held that the ban, which applied to the 400 public television and radio stations around the country receiving federal funds from the Corporation for Public Broadcasting (CPB), violated the First Amendment guarantees of freedom of speech and press. The Center represented the California League of Women Voters, the Pacifica Foundation, and Los Angeles Congressman Henry Waxman in the lawsuit.

In order to remove the threat of governmental interference in programming decisions, the Public Broadcasting Act established the CPB, a nonprofit, private corporation, to oversee distribution of federal funds for public broadcasting. Despite the independence from close government supervision or influence achieved by using CPB to distribute federal funds, Section 399 of the Act prohibited public broadcasting stations from “engaging in editorializing.” As a result, those public broadcasting stations could not express their own editorial views on matters of public interest, a right long exercised by commercial stations.

The Center filed the challenge to the editorializing prohibition on April 30, 1979. When the Center filed the suit, the United States Justice Department, acting as the attorney for the Federal Communications Commission, agreed that the ban on editorializing violated the First Amendment. United States Attorney General Benjamin R. Civiletti sent a letter to Congress and to the FCC stating that the Department had decided not to defend the lawsuit. Civiletti’s letter adopted all of the Center’s arguments and concluded that no reasonable arguments could be advanced to defend the statute. (Upon learning of the Justice Department’s refusal, the United States Senate sought to defend the statute.) Then, in 1981, with the change of Administrations in Washington, D.C., the Justice Department did an about face. Under Attorney General William French Smith, the federal government vowed to enforce the ban on editorializing and vigorously defended the statute’s constitutionality in court.

In defending the statute, the government took the position that the ban on editorializing protected the public stations from being unduly influenced by their major funding source, the United States Government. But the District Court agreed with the Center’s contention that the independence of the CPB sufficiently insulated public broadcasters from government influence or censorship of all editorial opinions by noncommercial broadcasters on controversial public issues.

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