FCC v. League of Women Voters of California - Oral Argument

ORAL ARGUMENT OF SAMUEL A. ALITO, JR., ESQ., ON BEHALF OF APPELLANT

Chief Justice Burger: Mr. Alito, I think you may proceed when you are ready.

Mr. Alito: Mr. Chief Justice, and may it please the Court:

This case concerns the constitutionality of 47 U.S.C. Section 399 which prohibits editorializing by those public television and radio stations that receive federal subsidies from the Corporation for Public Broadcasting.

This case is a direct appeal from a decision by the United States District Court for the Central District of California which invalidated Section 399.

Appellees have raised a question about this Court's jurisdiction over the case, and the Court has postponed further consideration of the jurisdictional issue to the hearing on the merits.

We have fully briefed the jurisdictional issue, and therefore, unless the Court has some questions on that matter, I will move directly to the merits of the case.

Unidentified Justice: I do have a question, actually, Counsel.

Did you cite the Griggs decision of last term in connection with this, interpreting Rule 4(a)(4)?

Mr. Alito: Yes.

That, of course, is one of the principal bases upon which Appellees rely.

But of course, the appellate rules do not govern appeals to this Court, and there is a provision in 4(a)(4) which is noticeably absent from this Court's rules, and that provision says that a notice of appeal filed while certain post-trial motions are pending is a nullity.

There is no such provision in this Court's rules.

As I understand it, the rule prior to the 1980 amendment of the appellate rules which added that provision was that a notice of appeal filed under those circumstances would be valid, and therefore, I would believe that the absence of such a rule in this Court's rules means that our notice of appeal here is valid.

I would also point out that I think there is a question whether Rule 4(a)(4) applies to interlocutory appeals, even to the courts of appeals.

But in any event, as I said, that rule does not apply to appeals to this Court.

Unidentified Justice: But certainly the Griggs result creates a trap for the unwary, doesn't it?

Mr. Alito: It creates a trap for the unwary, and when there is no provision in the governing rules pointing that trap out, it is all the more dangerous and unfair.

There is nothing in this Court's rules that say that a notice of appeal filed while a motion for reconsideration is pending is a nullity, and I think that to reach that result in this case would frustrate the intent of Section 1252 under which we appealed, which of course is to allow a speedy and authoritative disposition of questions involving the constitutionality of acts of Congress.

If that had to wait while a collateral matter like attorneys' fees was decided, I think Congress' intent would be frustrated.

For example, here nearly a year went by while the attorneys' fees question was being decided by the District Court.

Moving to the merits of the case, Section 399 has two separate provisions.

The first provision which is directly attacked here today of course provides, as I said, that stations receiving federal funds from the Corporation for Public Broadcasting may not engage in editorializing.

In fact, every public television station at last count, and virtually every full service public radio station receives such funds.

The term editorializing has been authoritatively construed by the FCC, consistent with the legislative history, to mean only the official endorsement of views by station management, and therefore, Section 399 does not prohibit the discussion of any topic or the expression of any viewpoint.

Station employees, journalists, commentators, public officials and everybody else can express their views on any subject.

The only thing that cannot be said is this editorial represents the position of station management, or something to that effect.

And of course, a station can say even that if only it is willing to give up federal funds.

If these funds are as insubstantial as Appellees and the district court suggest, then that should not represent a major sacrifice.

There is a second provision of 399 that is not directly challenged here today, but we believe it is nevertheless very much at issue, and that provision prohibits public stations from supporting or opposing candidates for office.

Now, Appellees originally challenged that provision as well and advanced almost the same arguments they now advance in this court in attacking the first provision of Section 399.

But they abandoned that appeal with Pacifica saying that at least for the present it has no intention of supporting or opposing candidates.

Unidentified Justice: Mr. Alito, you sat they abandoned that appeal.

Do you mean they abandoned that prong of their attack in the district court?

Mr. Alito: Yes, I misspoke, Justice Rehnquist.

They amended their complaint.

But the argument that they have made in this Court that Section 399 can survive only if it is the most narrowly drawn statute designed to serve a compelling governmental interest would surely call for the invalidation of the second provision of Section 399 as well if it calls for the invalidation of the first.

And indeed, that argument is so broad that it calls into question virtually all of the special rules that apply to public stations as well as rules like the fairness doctrine that apply to all broadcasters.

Appellees play a kind of hide and seek game with this regulatory structure.

They deploy, as they said, a First Amendment argument that seems to require that most of it be swept away, yet at the same time they rely on these regulations, including the second provision of Section 399 to show that the provision on editorializing is unnecessary.

Unidentified Justice: Well, the standard which you attribute to Appellee as the narrowest possibly tailored is really the standard that applies to the government as regulator, isn't it, not to the government as expending public funds.

Mr. Alito: I'm not sure I understand your question, Justice Rehnquist.

Unidentified Justice: Well, we have held, for instance, in cases like Regan v. Taxation with Representation, United States Postal Service v. Greenberg and cases like that that where the government isn't acting as lawgiver in the sense of regulating private individuals, but instead, deciding how it is going to put its property to use or how it is going to spend its money, the standards are a good deal more lenient.

Mr. Alito: It certainly is, and that is our second argument in this case.

Section 399 does not prohibit a public station from editorializing.

It simply says that if it wants to do so, it can't receive funds from the Corporation for Public Broadcasting.

Unidentified Justice: Did the government make that spending power argument below?

Mr. Alito: We did not couch it in those terms, but we certainly pointed out and relied upon the fact of government funding, and the district court addressed that question, and I don't really think that the spending power raises a different question.

It's just an aspect of the same larger question, whether Section 399 violates the First Amendment, and I think that is the same question whether the affirmative basis for Congress' action is the spending power or the commerce power.

Unidentified Justice: But if you say that, you can't also be arguing, well, all they have to do is give up the money, and they can... because your argument really would extend a blanket prohibition against editorializing by public stations.

Mr. Alito: We are making two arguments, Justice Stevens.

We believe that Section 399 was constitutional as originally enacted in 1967, and we believe it is all the more constitutional as amended in 1981.

In fact, I think the effect of the amendment in practical terms was very slight since substantially all stations receive these funds, and it was Congress' belief in 1967 that they would receive those funds.

Unidentified Justice: I think your basic argument would really apply not merely to public television but to all licensed television, wouldn't it?

Mr. Alito: No, not at all, Justice Stevens.

Nothing in our submission has any implications for commercial broadcasting.

The heart of our argument is that public broadcasting is very different in many ways from commercial broadcasting.

It was created for a different purpose, and it is dominated by government entanglements that have no parallel whatsoever in the world of public broadcast... of commercial broadcasting.

And it is that which supports the constitutionality.

Unidentified Justice: Well, there is this parallel, that in both areas the government has the power to say you cannot continue to broadcast.

I mean, because even in the private sector they have the licensing power.

Mr. Alito: Well, that is certainly true, and the government has considerable power over all broadcasting that it doesn't possess with respect to the print media.

I think this Court's cases have recognized that the government's power with respect to all broadcasting permits restrictions on the right to editorialize.

The right to editorialize is also the right not to editorialize, as the Court said in Miami Herald Company v. Tornillo, but commercial broadcasters are encouraged to editorialize, and they have to give up time for reply under certain circumstances when they make an attack on an individual or a group or they support or oppose a candidate.

That is a restriction on editorializing that would not be tolerated in the print media.

The question here is whether a further restriction on editorializing that Section 399 puts into effect is justified by the special characteristics of public broadcasting.

Let me turn to those special characteristics.

First of all, there is the matter of funding.

Sixty-seven percent of the income of public radio comes from direct government subsidies, and approximately 60 percent of the income of public television--

Unidentified Justice: We will resume there at 1:00 o'clock.

Chief Justice Burger: Mr. Alito, you may proceed when you are ready.

ORAL ARGUMENT OF SAMUEL A. ALITO, JR., ESQ., ON BEHALF OF APPELLANT -- Resumed

Mr. Alito: Mr. Chief Justice, and may it please the Court:

Before lunch I was beginning to talk about the enormous differences between public broadcasting which is involved here, and the commercial sphere of the industry, with which this Court is perhaps more familiar due to its prior decision.

Appellee has tried to... the Appellees have tried to suggest in this case that public stations are generally just like commercial stations: they are free to do and say whatever they want with the sole exception of the ill-motivated restriction contained in Section 399, and that is simply not true.

Public stations are subject to many special restrictions designed to ensure that they remain true to their intended purpose and fulfill their public mission.

For example, they may not be profit-making institutions.

They can only be licensed to units of government and non-profit groups.

They may not sell air time even for political or public affairs programming.

They may not accept advertising, even political advertising.

They have... they are subject to special equal employment opportunity rules, special accounting rules, special open meeting requirements.

They have to have community advisory boards to review their programming and see if they are serving the needs of the entire community.

Now, before lunch, before lunch I started to talk about the matter of funding, and of course, that is critical here.

I pointed out that fully 60 percent of the income of public broadcasting comes from direct government grants, and that is really only the beginning.

Virtually every public television station facility in this country was built with substantial federal funds, and many of public broadcasting's most popular shows, such as Sesame Street, are financed with federal dollars and are supplied to these stations at no cost or less than cost.

And then, of course, there are the huge tax subsidies that these stations receive by virtue of their tax-exempt status.

Appellees have attempted to disparage the significance of the federal contribution to public stations, but on this point I think I will let the Corporation for Public Broadcasting speak for itself.

In its latest annual report, it says flatly, general tax revenues are the linchpin of a viable American Public Broadcasting Service.

And then there is the question of ownership.

Two-thirds of these stations are actually owned outright by units of government or by government instrumentalities.

Unidentified Justice: You don't mean the United States government, though--

Mr. Alito: Not by the federal government, but by state and local governments, and typically, by boards or authorities that state government sets up to run these stations.

Let me take just one example, the example of Alabama, just because it is--

Unidentified Justice: --Well, Mr. Alito, are you suggesting that a state operated public broadcasting system or station is subject to more federal regulation under the Constitution than a privately owned... well, there can't be a privately owned one, can there?

You say there can't be a privately... say, is a state operated station subject to more regulation under the Constitution than a station owned by a nonprofit private corporation?

Mr. Alito: --Section 399 does not draw that sort of distinction, but our argument is that Congress was legislating against the backdrop of the type of public broadcasting system it intended to create, and it envisioned the fact that many of these stations were going to be governmentally owned.

Unidentified Justice: But what if, say, the State of Alabama or the City of Birmingham, whatever the other, say we would like our station to editorialize?

Mr. Alito: Well, I think the Congress in regulating broadcasting can take into account the kinds of abuses that may develop when a publicly owned station using public funds, even state or local funds, engages in editorializing and supporting or opposing candidates.

I think that creates the possibility of grave abuses that are not present, certainly in the area of commercial broadcasting.

It creates the danger that the station will be used as an outlet for government propagandizing, and I think that one of the things the First Amendment tries to prevent is government at any level drowning out private voices in the media of communication.

It creates the possibility that people will go into public broadcasting not because they are primarily concerned with excellence and diversity in broadcasting, which was the purpose for the Public Broadcasting Act, but because they are interested in pushing a particular partisan or ideological message.

That's the--

Unidentified Justice: Do they allow debates on local controversial issues if the city municipal corporation owns the station?

Mr. Alito: --Absolutely.

They are allowed to broadcast any view on any issue, and anybody can speak in an individual capacity or representing any group save one, and that is the management of the station.

Unidentified Justice: Well, how does that avoid ideology then?

Mr. Alito: Because it avoids the labeling by the station of a particular view as official.

Unidentified Justice: You mean they carry the Red Lion concept way beyond what it... the way it regulates private profit stations.

Mr. Alito: It does carry the reasoning of Red Lion a step further, and it does that because these are public stations.

They are not financed with private advertising dollars; they are financed in large measure by money that is supplied by the taxpayers, and it would in many ways be fundamentally unfair if public money were used to propagate a single, narrow set of partisan or ideological views.

Unidentified Justice: Mr. Alito, would you make the same argument for a newspaper if it received some kind of public subsidy?

Mr. Alito: If newspapers received subsidies of this order, I suppose some of the same arguments could be made, but that is a difficult question to answer because it presupposes a world of publishing that is alien to what we have always known.

The federal government does not subsidize the print media in any way that resembles the subsidies that are given to public--

Unidentified Justice: It perhaps may subsidize them indirectly through tax benefits of some kind or deductions.

Mr. Alito: --It, it is--

Unidentified Justice: Postage rates.

Mr. Alito: --Well, I know Appellees have relied on postage rates.

I seriously question whether those are subsidies of any sort, and in any event--

Unidentified Justice: Well, you mean they are not consequential?

The weekly news magazines couldn't function if they didn't get the special rates, stay in business.

Mr. Alito: --Well, that is true, Mr. Chief Justice, but they operate in a very different way from the subsidies here.

They allow... they are not in intended to subsidize the publication.

They are intended to make it--

Unidentified Justice: It is an indirect subsidy.

Mr. Alito: --Their purpose is to make it less expensive for an individual to receive the publication of his choice, and if I like Popular Mechanics and I don't like Field and Stream, I can't complain because my neighbor gets Field and Stream at a slightly lower price because I get the same break on Popular Mechanics.

But here, most communities have a single public television station and a single public radio station, and therefore, if my tax money is used to subsidize a station that continually espouses causes that I disagree with and candidacies that I oppose, then I am going to take objection.

Unidentified Justice: Well, in many communities there is only one newspaper.

Mr. Alito: Well, that is not due to the fact of government regulation in any sense, and not due to the fact of government subsidy.

This Court has relied on the scarcity of broadcast frequencies to justify restrictions.

Unidentified Justice: Well, isn't that changing?

Aren't there far more frequencies available today than in the past?

Mr. Alito: There are, Justice O'Connor, but I think there is still a scarcity with respect to the most valuable frequencies, VHF television stations, for example, in the most desirable markets.

And I think in any event that is a judgment for Congress to make.

Congress certainly has not abandoned the scheme of licensing broadcasters in the public interest which rests upon an idea of frequency scarcity.

Unidentified Justice: The government doesn't have to rely only on the Red Lion, does it?

I mean, it can rely also on the right of any contributor to attach strings to its contributions.

Mr. Alito: Absolutely, Justice Rehnquist, and let me turn then to that point.

As I said, Section 399 does not prohibit a station from editorializing.

It simply says if you want to editorialize, you have to do it with private money.

Congress has frequently enacted statutes like this which condition the receipt--

Unidentified Justice: Well, would your position then be that as long as the station isn't using the public money for the editorializing aspect, that it is all right?

Mr. Alito: --No, Justice O'Connor.

I think that that is artificial economics.

Federal support assists every aspect of station operations, and as the sentence I read from the Corporation for Public Broadcasting report indicates, in many instances it is absolutely vital for the continued existence of public stations in their present form.

Therefore, if there were no such support, in many cases there would be no antenna, there would be no studio, there would be no employees, and it would not really make very much difference if the station could draw from private funds, the small, direct incremental amount necessary to broadcast the editorial.

If funded public stations were permitted to editorialize, given the nature of funding for public broadcasting, the federal government would necessarily be subsidizing that editorializing, and that is one of the chief things that Congress sought to prevent.

Now, Appellees' argument is that Section 399 is unconstitutional because it attaches an unconstitutional condition to the receipt of federal money, and they rely on cases like Speiser v. Randall and Perry v. Sindermann, and Sherbert v. Verner, but those cases I think are clearly distinguishable from this one on at least three major grounds.

First of all, this Section 399 is not in any way content-related.

It does not prevent anybody from expressing any view or discussing any topic.

An argument very similar to Appellees' was made to this Court in FCC v. National Citizens Committee for Broadcasting in which the Court considered the constitutionality of regulations that prohibited newspapers from getting broadcast licenses in the same market, and the Court unanimously rejected on the ground that the regulations there were not content-related.

And that distinguished Speiser in that line of authority.

And I think this--

Unidentified Justice: I am puzzled but this argument.

It seems to me the very test of what can't be broadcast is a content... is defined in terms of content: that you can't give editorial.

Mr. Alito: --I don't believe that's true, Justice Stevens.

I think a measure is content-related, as I said, if it restrictions the expression of any view or the discussion of a topic, and Section 399 does not do that It simply says you cannot editorialize.

It concerns the packaging of expressing rather than its content.

Unidentified Justice: But you surely couldn't tell whether the program you listen to were an editorial or not without listening to its content, could you?

Mr. Alito: Well, I think that that is true, but it is not content-related in the senses that I believe this Court has pointed out in its opinion, in its opinions.

The Speiser line of authority is distinguishable in any event, I think, on two other grounds.

First of all, Section 399, as I said, prevents the use of federal money to subsidize editorializing, given the nature of the funding that public broadcasting receives, and in Speiser and those other cases there was no real question of subsidy.

In Speiser, for example, taxpayers were denied a property tax exemption that was given to honorably discharged veterans, and they were denied that on the ground that they refused to sign a loyalty oath.

Well, you certainly couldn't say that the property tax exemption, if it had been given, would be subsidizing their refusal to sign the loyalty oath, and I think that is true of the other cases upon which Appellees have relied.

And finally, the restriction here is closely related to the purposes for Congress' funding.

It is not simply an extraneous limitation that is tacked on.

It helps to ensure that public broadcasting remains true to its intended purpose.

It helps to preserve the public, nonpartisan character that is essential for public broadcasting.

And--

Unidentified Justice: How can you say that, Mr. Alito, when apart from funding, the broadcaster may editorialize?

Mr. Alito: --I am not sure that I understand the thrust of your question, Justice Blackmun.

If a station does not receive funding, it is not covered by the statute.

In fact, every station, with a few exceptions in the field of radio, does receive that funding, and thus, the statute--

Unidentified Justice: But it might be funded by state funds or otherwise.

Mr. Alito: --Well, the pattern is that these stations receive funds from a diversity of public sources.

They receive about 25 percent of their funds--

Unidentified Justice: Are there any which do not receive federal funding?

Mr. Alito: --We don't know whether there are any that do not receive federal funding.

We know that all public television stations receive Corporation for Public Broadcasting grants, and then 90 percent of the public radio stations that are qualified for those grants... and that is generally the professional, full-service stations.

Unidentified Justice: I am frank to say what I am bothered about with your case is that it is a complete ban on editorializing in an area that is at the core of the First Amendment, and I think therefore it is a little different from, say, Harris v. McRae.

Is the rationale behind this statute much the same in your view as behind the statute that forbids USIA broadcasts, which go to all... many other countries, but they cannot... the same material cannot be broadcast in this country?

Mr. Alito: That is certainly one of the principal bases for this statute, to prevent the use of these stations for government propagandizing.

And I think it is naive to believe that a medium that gets fully 60 percent of its income from government sources could take editorial positions and support or oppose candidates without taking into account the wishes of those who control the purse strings.

And in the case of those stations that are owned outright by local government, I think that the argument has all the more force.

Unidentified Justice: When you make that statement, you are speaking of political propagandizing, or just USIA, Voice of America type of thing?

Mr. Alito: I think the statute is concerned with political influence of all types, whether it comes from the federal government or from state and local government.

When Congress enacted Section 399, it received some very compelling testimony by people who operated municipal broadcasting stations.

For example, the director of the New York City station said we don't take any editorial positions because if we did, they would have to be the positions of the mayor, and therefore, we take none.

And I think that is one of the purposes of Section 399, to prevent the use of these stations which were intended to be a community resource, to provide excellent broadcasting, from being used for narrow partisan purposes.

And it prevents them from posing an inviting target for narrow partisan and ideological groups.

Unidentified Justice: Mr. Alito, do you think a station would be free to retain a prominent commentator who appeared regularly on the station advancing political views?

Mr. Alito: I think it certainly would.

Editorializing has been defined to mean the official expression of views by management, and if a public station wanted to have their equivalent of Eric Sevareid or David Brinkley, I see no reason why they couldn't do that.

Unidentified Justice: Do you think it would have any less influence doing it that way?

Mr. Alito: I think that it would contribute equally to public debate.

I do think that it lacks some of the abusive features that official editorializing has.

I would draw a rough analogy here to the establishment clause of the First Amendment.

The establishment clause doesn't interfere with anybody's practice of religion, but it says that Congress cannot proclaim one religion as the official religion, and that is essentially what Section 399 does.

It doesn't interfere with any expression of views, but it just says that a public station using public money cannot put its official stamp of approval on any particular view or candidate.

Unidentified Justice: Is your response to Justice Powell then that in your view or... it must be your view that these national commentators are totally unbiased and nonpolitical.

Mr. Alito: No, I don't take that position at all, but they are--

Unidentified Justice: Well, I thought you said that that would be proper to use some of these shows that appear on the three networks, the three commercial networks.

Mr. Alito: --Congress in no way wanted to prevent the lively discussion of public issues and the expression of every contrasting viewpoint.

It just did not want an official expression of view on behalf of station management.

Unidentified Justice: Well, Congress really shut one door and left about five doors open, didn't it, for anybody, any station that wants to put on various partisan views.

Ao long as they are not the partisan views of management, they can be put on.

Mr. Alito: Well, of course, they are subject to the fairness doctrine like all other broadcasters.

Unidentified Justice: But which isn't... the fairness doctrine isn't attacked here, as I understand it.

Mr. Alito: No, it's not, but I'm saying the fairness doctrine provides a protection against slanted broadcasting.

Unidentified Justice: So far.

Mr. Alito: Congress drew a line where a line could be drawn between editorializing and other public affairs presentations.

And I do think that in the case of editorializing, there is a special feature that lends itself to abuse because public money is being used to stamp an official viewpoint as that of station management, and I think that's what Congress intended to prevent.

Unidentified Justice: Well, what if it appeared that this management of one of these public stations was over a period of time, it was demonstrated that he selected, he or she selected commentators whose view was all one way, either on domestic tax policy or economic policy or foreign policy?

What about that?

Mr. Alito: I think that's a fairness doctrine question, and fairness doctrine compliance.

Unidentified Justice: Only the fairness doctrine would be a limitation on them, that they would have to, if they could find one, find a commentator the other day.

Mr. Alito: They have to present an adequate coverage of all issues of public importance in a fair presentation of contrasting views on those issues.

Unidentified Justice: Is it your position that... I take it it must be... that the fairness doctrine is not sufficient protection?

Mr. Alito: It is not sufficient protection in this sphere.

Unidentified Justice: And why?

Mr. Alito: Well, first of all, I have trouble with the idea of balanced editorializing.

Presumably a station cannot take a pro and con position on an issue.

It has to... editorializing is necessarily one-sided, and precisely for the reasons that Appellees say it is important for them to editorialize, the right of a private citizen to give a reply, which incidentally is not guaranteed except in narrower circumstances under the fairness doctrine, is not a complete answer to that.

Unidentified Justice: Mr. Woocher?

ORAL ARGUMENT OF FREDERIC D. WOOCHER, ESQ., ON BEHALF OF APPELLEES

Mr. Woocher: Mr. Chief Justice, and may it please the Court:

At issue in this case is a statute that very straightforwardly and unabashedly suppresses speech of the highest order in our constitutional framework.

If this statute were directed at the Washington Post or presumably even at CBS TV instead of at Pacifica Foundation, there would be no doubt of its unconstitutionality.

Indeed, in Mills v. Alabama, this Court said with respect to a similar ban on editorials that it was difficult to conceive of a more obvious and flagrant violation of the First Amendment.

Yet here the government is saying that the same ban on editorializing can constitutionally be applied against Pacifica and other noncommercial broadcasters.

Unidentified Justice: Do you mean by that that the City of New York or the City of Chicago can own and control a public station and let the mayor of the town have special rights for broadcasting and have his views advocated over opposing views?

Mr. Woocher: As long as there is fairness is assured, which is assured by the fairness doctrine, yes, that would be no problem.

In fact, it would raise very substantial federalism issues if the federal government were permitted to suppress the viewpoints of the state or local governmental entities, particularly if their speech was directed at a federally related issue.

Now, in order to justify this distinction between this ban and those bans which would not be constitutional if applied in other contexts, the government jumps between two separate rationales.

They rely upon the presence of a government subsidy, and they also rely upon the scarcity rationale and the scarcity of broadcast frequencies.

But neither of these rationales, whether alone or in combination, can support their result.

For the notion that the government can use its federal funds and its federal subsidy as a justification for imposing a restriction on the use of private funds has never been accepted by this Court.

Unidentified Justice: Well, Mr. Woocher, you agree, I take it, that the government could say we are going to give you 35 percent of your operating funds, and you can't use any of those funds for editorializing.

Mr. Woocher: That's exactly right.

Unidentified Justice: Okay, now, supposing the government does that and they see that the station is just switching the government funds over to something else and pulling of some other funds and using the private funds to editorialize, and the government says, well, we are trying to have some... we want to discourage editorializing.

The way we are allotting the money isn't doing any good.

So then the government says let's make it mean something.

So we say, we will give you 35 percent if you won't editorialize.

Now, what is so different about that?

Mr. Woocher: Well, there are two things.

One, if the government's express purpose were to discourage editorializing with private funds, that would raise constitutional problems, even if they only imposed the restriction on the use of the federal funds.

But moreover, the notion of segregability--

Unidentified Justice: Well, I think that answer is inconsistent with our opinion in Regan last year, Regan v. Taxation without Representation.

Mr. Woocher: --I believe the Regan decision laid forth two simple principles: one, that the government may refuse to expend its funds on a person's exercise of a constitutional principle, but even in that context, the Regan decision made clear that if the government did so with an intent to suppress dangerous views, that that would raise constitutional problems.

Unidentified Justice: Yes, but I don't see this case as involving any suppression of "dangerous views" at all.

No particular views are suppressed.

The station is just told it cannot adopt an editorial policy, whatever that policy might be.

Mr. Woocher: The station is told that it cannot express its views on controversial issues of public importance.

That's what the statute requires.

In Consolidated Edison, for example, this Court held that a restriction that imposes such a restraint on the discussion of an entire topic is just as constitutionally infirm as one which prohibits--

Unidentified Justice: But that wasn't a spending power case.

You are treating this... Consolidated Edison wasn't a spending power case.

You are treating this as if the government had said to all private stations, whether they get government funding or not, all public stations, you can't do this.

The government didn't say that.

It is saying only the ones that get government can't do this.

Mr. Woocher: --And it is saying you cannot do it even with your own private funds.

I think that is the distinction between this case and TWR, as... in that opinion there were two principles.

One is that the government may refuse to exercise... may refuse to subsidize the exercise of a constitutional right, but the second principle was the reaffirmation of the longstanding prohibition against unconstitutional conditions.

Unidentified Justice: Well, I agree that certainly Regan did not cover the situation, the distinction you make because it was not present in Regan.

But what you are saying is that though the government may do something in an ineffectual way that doesn't have any result because the people just switched the funds, it can't do it in an effectual way.

Mr. Woocher: I think that the government may not suppress speech that is paid for with private funds.

Now, the notion of segregability is one that has been consistently accepted not only by Congress but by this Court's jurisprudence, in the establishment clause area, for example.

It is accepted that the government may spend money which goes to a religious institution, and presumably that religious institution may use that money to free up some other money and therefore expend that.

Congress does it all the time when they impose categorical grants.

And in fact, the government has argued in the Grove City case that it is appropriate to segregate funds.

Unidentified Justice: That is the government's own choice there.

The government is saying we will do this, and if you want to switch funds, that's okay.

Here the government has said we don't want to risk your switching funds.

Why shouldn't that be a decision of Congress rather than the courts?

Mr. Woocher: Because in doing that they have placed a prohibition on wholly private funds, and it is not a question--

Unidentified Justice: Mr. Woocher, suppose a station just couldn't exist without public money, that it just would go out of business, and it is absolutely essential for the station to receive government money.

So if it is going to editorialize or do anything else, it has to have the testimony money.

Mr. Woocher: --The fact that the station needs the money so much just points out what a coercive influence it is on the station.

It is the same as the postal subsidy--

Unidentified Justice: Well, I think that certainly, I would think, would read against you, because if you are so dependent upon the sources of funds, if you could editorialize, you would be bound to express the financier's view.

Mr. Woocher: --Well, we have a situation here--

Unidentified Justice: That's part of the argument.

Mr. Woocher: --Even if that were the case, that is not the situation here.

The government does not... the federal government does not supply 60 percent of the funding, for example.

Pacifica Foundation, my client, who was prohibited from expressing its own views with its own privately supported, privately raised funds, cannot do so, and it gets only 20 percent of its funds from the federal government.

Unidentified Justice: Well, you are making an argument though, here in this Court and in your brief, that this is unconstitutional on its face.

Mr. Woocher: Both on its fascinated as applied.

Unidentified Justice: Well, I suppose all you really need to represent your client, to win for your client is to have it be held unconstitutional as applied to your client.

But why would you say that's necessarily true countrywide?

Mr. Woocher: Well, because the facts support it.

The facts are that the federal government supplies--

Unidentified Justice: Do you think there is no station that you can think of in the country that wouldn't be shut down if government money was cut off?

I guess that just isn't--

Mr. Woocher: --I don't think that's a relevant consideration, whether or not--

Unidentified Justice: --That isn't reality, Mr. Woocher.

Mr. Woocher: --I just don't think that's a relevant consideration, whether or not--

Unidentified Justice: Well, I know you must... now you have to say that, but I was just... so that was your answer to my original question, that it is just irrelevant that the station would shut down without the money.

Mr. Woocher: --Right, because as the Chief Justice pointed out, many of the newspapers, many of the magazines that receive postal subsidies would shut down without the government money.

Many institutions in our country would shut down without government money.

But if the government could apply the same rationale to all those institutions that receive any government funds, this would lead to a terrible parade of horribles.

It would allow them to coerce the forfeiture of their constitutional rights because the government holds out the carrot of its funds and says if you want to receive these funds which you need to survive, which in our society is increasingly the case, you can't get them unless you promise that you are not going to editorialize, unless you promise you will not--

Unidentified Justice: Unless you promise not to express our views.

Mr. Woocher: --I beg your pardon?

Unidentified Justice: Unless you promise not to express our views.

Mr. Woocher: Unless you promise not to express your own views.

Unidentified Justice: Well, surely you cannot have the government fund a broadcast station in this country to advance the views of that government, would you not agree with that?

Mr. Woocher: Well, certainly not, and that points up the distinction--

Unidentified Justice: You wouldn't agree with it, or you do agree with it?

Mr. Woocher: --Well, the government may choose to propagate its own views.

It may choose to buy air time to propagate its views, for example.

Unidentified Justice: Buy air, that's quite different, buying air time.

Why, then, do we forbid, does Congress forbid any broadcast of the USIA, the Voice of America, in the United States?

Mr. Woocher: Because that is a governmental entity.

Unidentified Justice: Yes.

Mr. Woocher: And it is a very different situation than we have here.

These are not governmental entities.

The noncommercial broadcaster--

Unidentified Justice: But they could not exist, in the hypothetical that Justice White gave you, some of them at least could not exist without the government's support, is that not true?

Mr. Woocher: --That is the case.

A welfare recipient might not be able to exist without the government's support.

There are a lot of people in society and a lot of institutions in society that cannot exist without the governmental support.

Unidentified Justice: Well, would the station which got 100 percent of its funds from the federal government not be a governmental entity?

Mr. Woocher: It could not... it might not be a governmental entity.

It would depend very much on the way it was set up.

Unidentified Justice: What would it be?

Mr. Woocher: It would be a 100 percent government funded private entity.

A welfare recipient is not a governmental entity, even though he may... he or she may receive all their funds from the government, and under the current regulatory structure, no noncommercial station is a federal governmental entity.

And that is a very important distinction because while the government may with certain limits impose restrictions no the use of its funds, and the effect may be that if a station is 100 percent government funded, the effect would be to prohibit editorializing... they cannot use the leverage of their government funds to suppress speech to support it wholly with private funds.

Unidentified Justice: Do you think that the statute forbidding the use of Voice of America broadcasts within the United States is unconstitutional?

Mr. Woocher: I don't believe that it's unconstitutional.

I believe the federal government probably has an opportunity to speak as well.

There are certain restrictions, as Mr. Alito pointed out, that the federal government should not be allowed to drown out all opposing voices.

But I don't think the First Amendment applies to the federal government in terms of restricting what it wants to do in terms of its own speech.

But it does restrict what a private entity can do with their speech and can do with their own private funded speech, and that is the essence of this case.

Now, the government--

Unidentified Justice: Let me just interrupt you, if I may.

You say that the First Amendment poses no restriction on what the government may do with its own speech.

So if the government decided to spend billions of dollars advancing the interests of the Republican Party, that would be permissible?

Mr. Woocher: --No, there may be limits--

Unidentified Justice: May be limits.

Mr. Woocher: --I misstated it.

There are limits on what the government might do, but the First Amendment applies in the context of the entire spectrum of--

Unidentified Justice: Well, aren't they limits imposed by the First Amendment?

Mr. Woocher: --I beg your pardon?

Unidentified Justice: Are they not limits imposed by the First Amendment?

Mr. Woocher: There may be limits imposed on the governmental speech by the First Amendment, but they are certainly not at issue in this case.

Unidentified Justice: You don't say it categorically.

You just think there may be?

Well you wouldn't say that if the government gave this money to these stations and said provided you put on editorials that we will send you in the mail, now, you know that wouldn't be permitted, would it?

Mr. Woocher: Of course not, because the government would be coercing--

Unidentified Justice: That's one answer to Justice Stevens.

Yes, you were arguing before that it would be permitted, if I heard your correctly.

Mr. Woocher: --I'm sorry.

I misspoke myself.

Unidentified Justice: Okay.

Mr. Woocher: Now, the government, when confronted with the difficulties in their government funding argument and the fact that in fact it is not simply a limitation placed on the use of federal funds, but is a limitation placed on the use of wholly private funds... and I might add that Pacifica Foundation could go out, solicit contributions solely for its editorializing, and that would be prohibited by this statute as well, but then the government shifts grounds and points to the scarcity rationale as a justification for imposing the restriction here that they concede could not be imposed on other recipients of government funds.

But the scarcity rationale gets them no further either.

Unidentified Justice: Well, isn't the scarcity rationale the distinction between the government's ability to regulate broadcasting and the government's ability to regulate a newspaper?

Mr. Woocher: That is the justification that would be used--

Unidentified Justice: Because there is no limit on how many pieces of paper you can print or distribute.

Mr. Woocher: --That's correct.

That's exactly right, and I thought until this day, until Mr. Alite suggested that perhaps you could place similar restrictions on newspapers to the extent they were government funded, that there was no permissible restriction like that.

And the only justification, therefore, for applying it to noncommercial broadcasters who receive government funds and not applying it to other written press that receive government funds must rest on the scarcity rationale.

But the whole notion of the scarcity rationale is to maximize the number and diversity of views that are heard over the airwaves.

That's why the fairness doctrine is a constitutional doctrine, because it doesn't prohibit the broadcaster from expressing its own views; it simply says that if you express your views, to make sure that the paramount right of the public to hear a diverse number of views, you have to give an opportunity for the presentation of other views.

But this statute--

Unidentified Justice: Mr. Woocher, are there any... does the record have any fats in it about your client, this station, its economics and how important the government funding is to it?

Mr. Woocher: --It does.

The record reveals, I believe, that there is... that Pacific received approximately 20 1/2 percent, 20.5 percent of its funds from federal sources.

Unidentified Justice: And is that about all there is?

Is that about the only fact about like that?

Mr. Woocher: I believe that's the case.

Unidentified Justice: And no basis for knowing that if the government funding was removed, that it would or wouldn't stay in existence.

It was in existence before it received any money, wasn't it?

Mr. Woocher: That's precise... that's exactly true.

It was founded in 1949.

It subsisted for over 20 years without a penny of federal aid.

Unidentified Justice: Right.

Mr. Woocher: Which shows that perhaps the federal aid is not necessary to their survival.

Unidentified Justice: Well, I am just wondering if the facts are in the record about Pacifica.

Mr. Woocher: The facts about Pacifica are known.

Unidentified Justice: In your view, would it be any different, would the rule of law you are advocating be any different if it is 80 percent funding instead of 20 percent?

Mr. Woocher: Not at all.

The only difference would be that it might be permissible to impose a restriction on the 80 percent, but on the 20 percent that would be still private funds, no.

Unidentified Justice: Well you would rather that there was such a difference than to lose this case, wouldn't you?

Mr. Woocher: I beg your pardon?

Unidentified Justice: You would rather have such a difference recognized than to lose this case for our client, I suppose.

Mr. Woocher: I suppose I would rather win this case for the client, but I think it would be a very equally poor precedent if it were to rely on the amount of the federal--

Unidentified Justice: That would be true, in your view.

Mr. Woocher: --That's correct.

I might add that Pacifica is by no means a typical in that regard, and there are many stations... it is not the case, as Mr. Alito said, that we do not know that there are some noncommercial broadcasters that don't receive federal funds.

There are approximately over 1000 radio stations out there that don't receive any funds from CPB, and many, many of them don't receive any federal funds at all.

Now, getting--

Unidentified Justice: Mr. Woocher, do you regard 399 as a content-based regulation?

Mr. Woocher: --It is certainly a content-based regulation, and I am mystified by the government suggesting that it is not content-based.

I think what they may be doing is confusing--

Unidentified Justice: That bears on the standard, the appropriate standard of review of which types do they gather, does it?

Mr. Woocher: --That's correct.

They may be confusing the notion of content-related or content-based with content neutrality.

All that the NCCB opinion, for example, stated was that was not a content-related statute at all because in that situation it was merely a structural regulation, a precondition about newspapers being able to own stations, collocation, issues like that.

In fact, the effect of that restriction there was to enhance the diversity of views that the public would be exposed to.

Speiser, on the other hand, talked about content neutrality, but this Court has recognized that a content neutral statute is very different from one that is content based.

Unidentified Justice: Does Pacifica publish commercial advertising?

Mr. Woocher: Pacifica does not publish commercial advertising?

Unidentified Justice: Is it because it is forbidden to?

Mr. Woocher: That is correct.

The only restriction that is placed on the content of the noncommercial broadcaster's programming.

Unidentified Justice: Well, only its program is restricted.

Mr. Woocher: Well, it's a very--

Unidentified Justice: It sounds to me like that is a... if editorializing is content based, so is that.

Mr. Woocher: --It is a very different sort of restriction, because as this court has recognized, first of all, commercial speech has always been entitled to less than full protection under the First Amendment.

Here we have speech that is being prohibited that is at the core of the First Amendment.

And second, the restriction on commercial advertising in fact does not prevent them from expressing those views over the air.

The only thing it prevents is them... prevents them from doing is receiving payment--

Unidentified Justice: What other kind of program restrictions are there besides forbidding commercial advertising?

Mr. Woocher: --That's it.

That is the only other kind of program restriction, and even that, as I say, is not a programming restriction.

Unidentified Justice: Except what might be imposed by the fairness doctrine.

Mr. Woocher: That's correct.

Unidentified Justice: Whatever those are.

Mr. Woocher: What would be imposed upon all broadcasters.

Unidentified Justice: Mr. Woocher, in reading Judge Lucas' opinion, I didn't get a clear idea of just what it was that Pacifica wanted to do by way of editorializing that it can't do under 399.

I mean, is it a 30 second thing once a day or a five minute thing every hour?

Does the record show?

Mr. Woocher: The record doesn't show how it would exercise that right.

Unidentified Justice: Does it show that it has exercised it in the past?

Mr. Woocher: The record does not show whether or not it has exercised it in the past, but as I say, that is really not relevant.

The issue is that this statute--

Unidentified Justice: If Pacifica was not going to do anything that would be barred by the statute, presumably there is no dispute.

Mr. Woocher: --Pacifica... there is in the record a statement by Pacifica that it fully intends to exercise its right to editorialize if Section 399 were declared unconstitutional.

That is very clear in the record.

And I think--

Unidentified Justice: But it has not editorialized up to now?

Mr. Woocher: --It has been prohibited from editorializing up to now.

Unidentified Justice: Well, yes.

I wasn't asking you why it hadn't.

I was just asking whether or not it had.

Mr. Woocher: That's correct.

It has not.

Unidentified Justice: And how long has it refrained from editorializing?

Mr. Woocher: The record doesn't reveal that, and I don't know.

It is at least since 1967 when the statute was enacted.

Unidentified Justice: So it has been not editorializing for 16 years.

Mr. Woocher: That's correct.

It has been under this--

Unidentified Justice: And thriving?

And thriving?

Mr. Woocher: --Financially, perhaps.

I don't think it has been thriving.

The... in fact--

Unidentified Justice: Well it is hard to thrive if you can't make any profit, isn't it?

Mr. Woocher: --That's correct.

It brought this case because it did not consider itself able to provide the services to its community that it wished to provide, and one of those services was editorials.

And I think the question of what type of editorial would it be likely to air is a relevant one.

Unidentified Justice: If it hasn't done it for 16 years, it probably doesn't know itself.

Mr. Woocher: It is probably the case that it doesn't.

But it does know that it wants to get involved in public affairs, and it does know that the right to editorialize is a very important privilege to the journalist, and it has had a very meaningful effect throughout the course of history.

Now, Pacifica, for example, may well wish to air an editorial in connection with a drug abuse program and say they wanted to say we do not think... we think that people should be very careful about getting started in drug abuse, they should be very careful about taking one step down that path, and they have some programming which this is done in connection with, but their editorial says we strongly urge our listeners not to get involved in any use of drugs.

Now, what conceivable threat does this pose to the government in this case?

Unidentified Justice: MR. Woocher, I suppose your client could use the government money to produce its own program about drug abuse.

Mr. Woocher: At this point I believe that's the case, that the grants are not restricted.

Unidentified Justice: And have 20 or 30 people who are hired as part of that production to express views about drug abuse.

Mr. Woocher: That's right, but that is very different from Pacifica itself--

Unidentified Justice: I understand it is different, but nevertheless, you can... you are not forbidden from influencing... exerting your influence in this area through producing your own shows, for example.

Mr. Woocher: --That's correct, except for the fairness doctrine obligations.

Unidentified Justice: Yes.

Suppose it had a series of documentaries, alleged documentaries, saying that after all these years of experiments with segregation, desegregation, that the conclusion had been reached that it was better for the races to be segregated, with the advent of new Asiatics coming in, the Asiatics should go to one school, and so forth?

What about that?

Do you think that would be all right?

Mr. Woocher: Certainly it would be all right.

I don't believe the government has any right to prevent anyone from speaking those views.

What the fairness doctrine requires is that there be an opportunity presented for the expression of a contrary viewpoint.

Now, the government--

Unidentified Justice: The only way they could deal with the fellow that advocated reversing the desegregation program in this country would be to have someone present the other side, the other point of view.

Mr. Woocher: --Or the FCC could determine in its regulatory framework, that if that broadcaster had somehow continually either violated the fairness doctrine or exposed this one view and was using its station for those purposes, they would be subject to the same licensing restrictions and same possibility of license revocation as a commercial station.

Unidentified Justice: Under the United Church of Christ case.

Mr. Woocher: I'm not familiar with the case, but under their power in granting licenses.

Unidentified Justice: Mr. Woocher, the government contends that there is some real danger that if a station is editorializing, that the government might be blamed for the views expressed.

They want to avoid that possibility.

How are these monies... what is the route that is followed in passing out these monies to these stations?

Who... nobody in the administration hands it out, does it?

Mr. Woocher: That's correct.

The money is appropriated by Congress to the Corporation for Public Broadcasting.

At that point the Corporation--

Unidentified Justice: And who is that?

Mr. Woocher: --That is a nonpartisan, private entity.

It is not a governmental entity.

It is a nonprofit corporation.

Its members are appointed in a nonpartisan fashion I believe by the President.

Unidentified Justice: And who else?

Who else has a hand in it, do you know?

Mr. Woocher: Congress may have a hand, but Congress I believe may have the right of... yes, Congress does have the right of confirmation.

So they are appointed--

Unidentified Justice: But it is the President who appoints them?

Mr. Woocher: --Yes, I believe so.

Unidentified Justice: And are they staggered terms?

Mr. Woocher: They are a staggered term, that's correct.

And there are requirements as to the number of each person's... it can be any political party.

CPB then takes that money and combines it with private donations that they receive.

For example, last year they received $150 million from the--

Unidentified Justice: Who makes the decisions in PBS?

Mr. Woocher: --Well, there's a very important difference between PBS and CPB.

Unidentified Justice: All right, CPB, that's what I meant.

Mr. Woocher: CPB has statutory structures as to how much of their money they can allocate.

The best--

Unidentified Justice: How do they decide who does it inside?

Mr. Woocher: --The CPB Board.

Unidentified Justice: You mean the entire Board votes on every grant?

Mr. Woocher: No, no, no.

As I say, Congress sets up structures.

It is a very much an objective, nondiscretionary process.

Unidentified Justice: Yes, but who is... if the public... if your client gets some money, who makes the decision whether it is going to get it?

I mean, what people?

Mr. Woocher: The amount of money that they get is established in terms of a proportionate amount by Congress.

CPB then puts it through an objective, nondiscretionary formula that trickles the money out to the stations.

It is an automatic process.

If the station editorialized, it couldn't possibly affect the amount of money they got.

Unidentified Justice: Well, how do you ever get on the list, just by being a public broadcasting company?

Mr. Woocher: That's right.

There are some certain basic requirements, the CPB eligibility requirements.

Unidentified Justice: So nobody can... you don't have to be admitted to a favorite group.

You are there already and it is just... and you are going to be there until you get thrown out.

Mr. Woocher: That's correct, by the fact that you are a nonprofit organization of a certain size with a certain capacity, certain power, in terms of--

Unidentified Justice: And so I suppose part of your argument, as I understand it, there is very little chance of being influenced anyway.

Mr. Woocher: --As far as I can tell, there is absolutely no chance of being influenced in terms of any individual funding decisions.

Unidentified Justice: You don't think editorials criticizing funding decisions could ever have an impact on funding decisions?

Mr. Woocher: Not under the... there is no way that that could happen.

Unidentified Justice: No, not possible.

Mr. Woocher: Not to any particular station.

Unidentified Justice: Even persuasive editorials having such--

Mr. Woocher: Unfortunately not.

Now, the government has suggested that there is something special about an editorial which distinguishes it from, for example, the other programs that they might put out on drug abuse that you were referring to, Mr. Chief Justice.

They contended that it somehow lends itself especially to abuses, but the FCC rejected that argument, and for the past 40, 35 years, they have in fact stated just the opposite and have encouraged editorializing because they feel, and rightly so, that an editorial is the most straightforward and open expression of a station's viewpoint and doesn't lend itself to any kind of abuses that might be inherent in the programming aspect of it.

So not only do we have a situation where they are prohibited from expressing their views in a straightforward fashion, but that prohibition itself runs counter to the very principle that the government seeks to achieve by funding noncommercial broadcasting stations.

Unidentified Justice: --And your client, I take it, wouldn't object to, if it is going to editorialize, to give people an opportunity to state the contrary view.

Mr. Woocher: Not at all, not at all.

Unidentified Justice: In the hypothetical example, that means you would give time to somebody advocating drug abuse.

0 [Generallaughter.]

Mr. Woocher: If they could find someone responsible, yes.

Unidentified Justice: Isn't that a possible problem?

Mr. Woocher: Well, they have to have a responsible spokesperson for that viewpoint.

I think in conclusion I would just like to point out that this case really does involve more than just the rights of Pacifica Foundation and more than just the rights of noncommercial broadcasters because the government's argument does extend well beyond the confines of that context.

Indeed, it extends beyond the confines of commercial broadcasting.

What they are saying, the essence of what they are saying they can do is prescribe institutional neutrality.

They concede that it might be a different case if they were prohibiting one view or another, but they think that they can prescribe institutional neutrality on the theory that expressions of the institution's viewpoints are somehow incompatible with the intended mission in society of that institution.

I believe that that truly has alarming implications in this day and age where it is no longer the case that the single individual's voice can effectively provide a counterweight to government action.

It is increasingly the case that people have to rely on groups of individuals, on institutions, on educational institutions, on state and local governments to provide a voice in contrast to that of the federal government, and if the federal government through the coercive use of its funding which, as I say, is more and more pervasive, can require those institutions to give up the right to speak, even if it is not directed at a specific viewpoint, it would mean that there would be no effective voices left to counteract the government's voice if and when such a counteracting voice is needed.

And I believe that is the true implications of what is happening in this case.

Thank you.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

We will hear arguments next in Hoover v. Ronwin.