No. 96-779 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ARKANSAS EDUCATIONAL TELEVISION COMMISSION, PETITIONER v. RALPH P. FORBES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHT CIRCUIT BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED STATES AS AMICI CURIAE SUPPORTING PETITIONER WILLIAM E. KENNARD General Counsel CHRISTOPHER J. WRIGHT Deputy General Counsel DANIEL M. ARMSTRONG Associate General Counsel C. GREY PASH, JR.. Counsel Federal Communications Commission Washington, D.C. 20554 WALTER DELLINGER Acting Solicitor General LAWRENCE G. WALLACE Deputy Solicitor General JONATHAN E. NUECHTERLEIN Assistant to the Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether, when providing news-related program- ming to the communities they serve, broadcast sta- tions licensed to state and local governmental entities are subject to First Amendment limitations inapplica- ble to private commercial broadcasters. ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Interest of the Federal Communications Commission and the United States . . . . 1 Statement . . . . 2 Summary of argument . . . . 11 Argument . . . . 13 I. The First Amendment does not constrain the editorial choices of state-entitiy public broad- casters licensed to operate under the Commu nications Act . . . . 14 II. Even if "forum" analysis were applicable to the editorial decisions of state-entitiy broad- casters, petitioner's reasonable, viewpoint- neutral choice of debate participants still would have been constitutional . . . . 24 Conclusion . . . . 27 TABLE OF AUTHORITIES Cases: Accuracy in Media, Inc. v. FCC, 521 F.2d 288 (D.C. Cir. 1975), cert. denied, 425 U.S. 934 (1976) . . . . 7, 8 Alabama Educ. Television Comm'n, 50 F.C.C.2d 461 (1975) . . . . 4 American Independent Party, 62 F. C. C.2d 4, aff 'd mem. sub nom. McCarthy v. FCC, No. 76-1915 (D.C. Cir. Oct. 21, 1976), cert. denied, 430 U.S. 955 (1977) . . . . 6 Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967), cert. denied, 390 U.S. 920 (1968) . . . . 19 Block v. Meese, 793 F.2d 1303 (D.C. Cir.), cert. denied, 478 U.S. 1021 (1986) . . . . 18 Brown for President Comm., 75 F.C.C.2d 609 (1980) . . . . 6 Buckley v. Valeo, 424 U.S. 1 (1976) . . . . 26 (III) ---------------------------------------- Page Break ---------------------------------------- IV Cases-Continued: Page CBS, Inc. v. Democratic Nat'1 Comm., 412 U.S. 94 (1973) . . . . 14, 15, 19, 21 CBS, Inc. v. FCC, 453 U.S. 367 (1981) . . . . 5, 20 Carol Music, Inc., 37 F.C.C. 379 (1964) . . . . 4 Chandler v. Georgia Pub. Telecommunications Comm'n, 917 F.2d 486 (11th Cir. 1990), cert. denied, 502 U.S. 816 (1991) . . . . 11 Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert. denied, 429 U.S. 890 (1976) . . . . 5, 6 City of New York Municipal Broadcasting Sys., 56 F.C.C.2d 169 (1975) . . . . 8 Codification of Commission's Political Programming Policies, 7 F.C.C. Rcd 678 (1991), reconsideration granted in part, 7 F.C.C. Rcd 4611 (1992) . . . . 5, 6, 8 Commercial TV Stations, 98 F.C.C.2d 1076 (1984), reconsideration denied, 104 F.C.C.2d 358 (1986), aff `d in part sub nom. Action for Children's Tele- vision v. FCC, 821 F.2d 741 (D.C. Cir. 1987) . . . . 4 Commission Policy in Enforcing Section 312 (a) (71 of the Communications Act, 68 F.C.C.2d 1079 (1978) . . . . 8 Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985) . . . . 24, 25 Cosmopolitan Broadcasting Corp., 59 F.C.C.2d 558, reconsideration denied, 61 F.C.C.2d 257 (1976), rev'd, 581 F.2d 917 (D.C. Cir. 1978) . . . . 4 Cyril E. Sagan, 1 F.C.C. Rcd 10 (1986) . . . . 6 Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 116 S. Ct. 2374 (1996) . . . . 18, 25, 26 Deregulation of Radio, 84 F.C.C.2d 968, reconsider- ation granted in part, 87 F.C.C.2d 797 (1981), aff'd in part sub nom. Office of Communication of United Church of Christ v. FCC, 707 F.2d 1413 (D.C. Cir. 1983) . . . . 4 ---------------------------------------- Page Break ---------------------------------------- V Cases-Continued: Page En Banc Programming Inquiry, 44 F.C.C. 2303 (1960) . . . . 4 FCC v. League of Women Voters, 468 U.S. 364 (1984) . . . . 6, 7, 8, 14, 16, 21 FCC v. Midwest Video Corp., 440 U.S. 689 (1979) . . . . 15 FCC v. Pottsville Broadcasting Co., 309 U.S. 134. . . . 2 FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940) . . . . 3 Farmers Educ. & Corp. Union v. WDAY, Inc., 360 U.S. 525 (1959) . . . . 5 FOX Broadcasting Co., 11 F.C.C. Rcd 11,101 (1996) . . . . 6 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) . . . . 19 Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) . . . . 15 Henry Geller, 95 F.C.C.2d 1236 (1983), aff'd sub nom. League of Women Voters Educ. Fund v. FCC, 731 F.2d 995 (D.C. Cir. 1984) . . . . 6 International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) . . . . 17 Iowa State Univ. Broadcasting Corp., 9 F.C.C. Rcd 481 (1993), aff'd sub nom. Iowans for WOI-TV, Inc. V. FCC, No. 94-1014, 1995 WL 116251 (D.C. Cir. Feb. 24, 1995) (50 F.3d 1096 ('Table)) . . . . 7 Kennedy for President Comm. v. FCC, 636 F.2d 417 (D.C. Cir. 1980) . . . . 8 King Broadcasting Co. v. FCC, 860 F.2d 465 (D.C. Cir. 1988) . . . . 6 Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995) . . . . 16 Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) . . . . 17 ---------------------------------------- Page Break ---------------------------------------- VI Cases-Continued Page Marcus v. Iowa Pub, Television: 97 F.3d 1137 (1996), reh'g en banc granted, No. 96- 3645SIDM (8th Cir. Dec. 10, 1996) . . . . 22, 23 No. 96-3645SIDM (8th Cir. Dec. 10, 1996) . . . . 22 Mississippi Auth. for Educ. Television, 71 F.C.C.2d 1296 (1979) . . . . 8 Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033 (5th Cir. 1982), cert. denied, 460 U.S. 1023 (1983) . . . . 7, 8, 11 Office of Communication of United Church of Christ v. FCC: 359 F.2d 994 (D.C. Cir. 1966) . . . . 3 425 F.2d 543 (D.C. Cir. 1969) . . . . 3 Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) . . . . 15, 16, 24, 25, 26 Piarowski v. Illinois Community College, 759 F.2d 625 (7th Cir.), cert. denied, 474 U.S. 1007 (1985) . . . . 19 Polk County v. Dodson, 454 U.S. 312 (1981) . . . . 16 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) . . . . 2, 3, 12, 21 Rosenberger v. Rector & Visitors of Univ. of Virginia, 115 S. Ct. 2510 (1995) . . . . 12, 13, 15, 16, 17, 18, 22, 24, 25, 26 Rust v. Sullivan, 500 U.S. 173 (1991) . . . . 17 Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942) . . . . 2 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) . . . . 16, 21 Television Assignments, Sixth Report and Order, 41 F.C.C. 148 (1952) . . . . 7 Trustees of Univ. of Pennsylvania, 69 F.C.C.2d 1394 (1978) . . . . 4 Turner Broadcasting Sys., Inc. V. FCC, 512 U.S. 622 (1994) . . . . 8, 18 United States v. Kokinda, 497 U.S. 720 (1990) . . . . 17 WCHS-AM-TV Corp, 8 F.C.C.2d 608 (1967) . . . . 4 ---------------------------------------- Page Break ---------------------------------------- VII Cases-Continued Page West v. Atkins, 487 U.S. 42 (1988) . . . . 16 Widmar v. Vincent, 454 U.S. 263 (1981) . . . . 2, 16, 17, 18 Yale Broadcasting Co. v. FCC, 478 F.2d 594 (D.C. Cir.), cert. denied, 414 U.S. 914 (1973) . . . . 4 Constitution, statutes and regulation U.S. Const. Amend. I . . . . passim Communications Act of 1934, ch. 652, 48 Stat. 1064 . . . . 2 47 U.S.C. 151 et seq. . . . 1 47 U.S.C. 153(h) . . . . 4, 15 47 U.S.C. 153(10) (Supp. II 1996) . . . . 4, 15 47 U.S.C. 303 . . . . 3 47 U.S.C. 307(a) . . . . 3 47 U.S.C. 312(a)(7) . . . . 5, 8, 9, 20 47 U.S.C. 315(a) . . . . 5, 8, 9, 19, 20 47 U.S.C. 315(a)(l)-(4) . . . . 5 47 U.S.C. 399 . . . . 8 47 U.S.C. 399b . . . . 8 Educational Television Act of 1962, Pub. L. No. 87-447,76 Stat. 64 . . . . 7 Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 Stat. 365 . . . . 7 Radio Act of 1927, ch. 169,44 Stat. 1162 . . . . 2 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 203, 110 Stat. 112 (to be codified at 47 U.S.C. 307(c) (l)(Supp. II 1996) . . . . 2, 3 204(a)(l), 110 Stat. 113 (to be codified at 47 U.S.C. 309(k) (Supp. II 1996) . . . . 3 47 C.F.R. 73.621 . . . . 8 Miscellaneous: 67 Cong. Rec. 5479 (1926) . . . . 3 Federal Communications Comm'n, Mass Media Bureau, Broadcast Station Totals (May 9, 1997) . . . . 7 S.E. Frost, Jr., Education's Own Stations (1937) . . . . 6 George N. Gordon, Educational Television (1965) . . . . 7 S. Rep. No. 562, 86th Cong., 1st Sess. (1959) . . . . 3 ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1996 No. 96-779 ARKANSAS EDUCATIONAL TELEVISION COMMISSION, PETITIONER v. RALPH P. FORBES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED STATES AS AMICI CURIAE SUPPORTING PETITIONER INTEREST OF THE FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED STATES The Federal Communications Commission (FCC) is the agency to which Congress has delegated the authority to regulate the broadcasting industry under the Communications Act of 1934. See 47 U.S.C. 151 et seq. Congress and the FCC have committed substantial public resources-in the form of fre- quency allocations and federal funds-to the develop- ment of noncommercial educational broadcasting (commonly referred to as "public broadcasting"). In so doing, Congress and the FCC have acted on the (1) ---------------------------------------- Page Break ---------------------------------------- 2 premise that the employees of all public broadcasting stations, of which more than two-thirds are licensed to state entities, will exercise the same editorial discretion over the content of their programming as their counterparts in private commercial broad- casting. In holding that the First Amendment con- strains the editorial decisions of a state-entity licen- see, however, the court of appeals' decision in this case threatens the premise underlying the federal regulatory scheme. The Commission and the United States therefore have a substantial interest in the outcome of this case. STATEMENT 1. a. Before passage of the Radio Act of 1927, ch. 169, 44 Stat. 1162, "the allocation of [broadcasting] frequencies was left entirely to the private sector, and the result was chaos." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375 (1969). Congress recog- nized that, unless the federal government regulated access to the airwaves, each speaker would be drowned out in a "cacophony of competing voices." ld. at 376. Congress thus enacted the Communi- cations Act of 1934, ch. 652, 48 Stat. 1064, "to protect the public interest in communications," Scripps- Howard Radio, Inc. v. FCC, 316 U.S. 4, 14 (1942), by formulating "a unified and comprehensive regula- tory system for the industry." FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137 (1940). Congress assigned enforcement responsibility under this new regulatory scheme to the FCC. Broadcasters are granted station licenses for terms of up to eight years. Telecommunications Act of 1996 (1996 Act), Pub. L. No. 104-104, 203, 110 Stat. 112 (to be codified at 47 U.S.C. 307(c)(1) (Supp. II ---------------------------------------- Page Break ---------------------------------------- 3 1996)). The Commission may grant and subsequently renew such licenses only after finding that doing so will serve "the public convenience, interest, or necessity." 47 U.S.C. 303, 307(a); see 1996 Act 203, 204(a)(l), 110 Stat. 112-113 (to be codified at 47 U.S.C. 307(c)(1), 309(k) (Supp. II 1996)). The "policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license." FCC' v. Sanders Bros. Radio Station, 309 Us. 470,475 (1940). A central element of this regulatory scheme is the responsibility of the individual licensee, whether a governmental or private entity, to act as a public trustee. A broadcasting license is a public trust. The licensee obtains "the free and exclusive use of a limited and valuable part of the public domain" and, in return, assumes a duty to serve the public interest. See Office of Communication of United Church of Christ v. FCC, 359 F.2d 994,997,1003 (D.C. Cir. 1966). As one sponsor of a predecessor to the Communica- tion Act observed 70 years ago, "the right of the public to service is superior to the right of any individual. * * * If enacted into law, the broadcast- ing privilege will not be a right of selfishness. It will rest upon an assurance of public interest to be served." 67 Cong. Rec. 5479 (1926) (remarks of Rep. White); see also S. Rep. No. 562, 86th Cong., 1st Sess. 8 (1959) (amendments to Communications Act); Red Lion, 395 U.S. at 375-377; Office of Communication of United Church of Christ v. FCC, 425 F.2d 543, 548 (D.C. Cir. 1969). The "ability of the licensee to render the best practicable service to [its] community" is crucial to the Commission's licensing decisions. Sanders bros., 309 U.S. at 475. Specifically, a broadcaster must ---------------------------------------- Page Break ---------------------------------------- 4 direct issue-responsive programming to the identified needs of its community. See Commercial TV Sta- tions, 98 F.C.C.2d 1076 (1984), reconsideration denied, 104 F.C.C.2d 358 (1986), aff'd in relevant part sub nom. Action for Children's Television v. FCC, 821 F.2d 741 (D.C. Cir. 1987); Deregulation of Radio, 84 F.C.C.2d 968, reconsideration granted in part, 87 F. C.C.2d 797 (1981), aff'd in relevant part sub nom. Of- fice of Communication of United Church of Christ v. FCC, 707 F.2d 1413 {D.C. Cir. 1983). Failure to meet that requirement can lead to the denial of a broad- caster's renewal application. See Alabama Educ. Television Cornm'n, 50 F.C.C.2d 461 (1975). Each licensee must itself undertake, and therefore may not delegate, the "primary duty and privilege to select the material to be broadcast to his audience." En Banc Programming Inquiry, 44 F.C.C. 2303, 2311-2312 (1960); see also Yale Broadcasting Co. v. FCC, 478 F.2d 594, 599-600 (D.C. Cir.), cert. denied, 414 U.S. 914 (1973). The FCC "has always regarded the maintenance of control over programming as a most fundamental obligation of the licensee," WCHS- AM-TV Corp., 8 F.C.C.2d 608,609 (1967), and has ex- pressed strong disapproval of any decision by a licensee to relinquish control over portions of its programming. See, e.g., Trustees of Univ. of Penn- sylvania, 69 F.C.C.2d 1394 (1978); Cosmopolitan Broadcasting Corp., 59 F.C.C.2d 558, reconsideration denied, 61 F.C.C.2d 257 (1976), rev'd on other grounds, 581 F.2d 917 (D.C. Cir. 1978); Carol Music, Inc., 37 F.C.C. 379, 380, 400 (1964); see also 47 U.S.C. 153(h) (no broadcaster shall "be deemed a common carrier") (to be remodified at 47 U.S.C. 153(10) (Supp. II 1996)). b. A broadcaster must exercise the same editorial control over its political programming that it exer- ---------------------------------------- Page Break ---------------------------------------- 5 cises over all other forms of programming. The Communications Act draws an important distinction, however, between political programming and political advertisements, over which candidates, rather than broadcasters, exercise absolute editorial control. See generally Farmers Educ. & Coop. Union v. WDAY, Inc., 360 U.S. 525 (1959), The Act imposes a specific set of requirements on a broadcaster's sale (or con- tribution) of airtime to candidates for political adver- tising. Section 312(a)(7) gives all legally qualified federal candidates a limited right of "reasonable" access to the airwaves, and Section 315(a) provides that, if any legally qualified candidate for public office "use[sl" a broadcast station (by, for example, purchas- ing airtime for political advertisements), other candi- dates for the same office must be given an "equal opportunit[y]" to use that station as well. See 47 U.S.C. 312(a)(7), 315(a); see generally CBS, Inc. v. FCC, 453 U.S. 367 (1981); Kennedy for President Comm. v. FCC, 636 F.2d 417,422-424 (D.C. Cir. 1980); Codification of Commission's Political Program- ming Policies, 7 F.C.C. Rcd 678, 680-686 (1991), recon- sideration granted in part, 7 F.C.C. Rcd 4611 (1992). A candidate's appearance in a broadcaster's news programming, however, is not a "use" by that candi- date of the broadcaster's station. 47 U.S.C. 315(a). It is instead an intrinsic part of any broadcaster's journalistic efforts to inform the public about political developments. Accordingly, the Communications Act exempts news programming, including such "bona fide news events" as televised candidate debates, from any "equal opportunities" requirement that would grant rights of appearance or participation to excluded candidates. See 47 U.S.C. 315(a)(l)-(4); Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.), cert. ---------------------------------------- Page Break ---------------------------------------- 6 denied, 429 U.S. 890 (1976); Henry Geller, 95 F.C.C.2d 1236 (1983), aff'd sub nom. League of Women Voters Educ. Fund V. FCC, 731 F.2d 995 (D.C. Cir. 1984) (Table); see also American Independent Party, 62 F.C.C.2d 4, aff'd mem. sub nom. McCarthy v. FCC, No. 76-1915 (D.C. Cir. Oct. 21, 1976), cert. denied, 430 Us. 955 (1977). Moreover, a televised candidate debate is a "bona fide news event," and qualifies for the exemption from the equal-opportunities requirement, even if the debate is sponsored by the broadcaster itself. See Henry Geller, supra; see also King Broadcasting Co. V. FCC, 860 F.2d 465, 466-467 (D.C. Cir. 1988); Fox Broadcasting Co., 11 F.C.C. Rcd 11,101 (1996). The Commission has indicated, however, that it will rec- ognize that exemption only where a broadcaster's decision to exclude a candidate from a debate it has sponsored rests on a reasonably based, good-faith journalistic judgment about the most effective way to present the debate to the public, and not on a desire to promote or suppress the views of a particular candi- date. See, e.g., Codification of Commission's Politi- cal Programming Policies, 7 F.C.C. Rcd at 684, 685 n.51; Cyril E. Sagan, 1 F.C.C. Rcd 10 (1986); Brown for President Comm, 75 F.C.C.2d 609,613-614 (1980); see also Chisholm, 538 F.2d at 358-360. c. "The history of noncommercial, educational broadcasting in the United States is as old as broad- casting itself." FCC v. League of Women Voters, 468 U.S. 364, 367 (1984); see also S.E. Frost, Jr., Education's Own Stations 464 (1937). Between 1921 and 1936, the federal government issued approxi- mately 200 radio broadcast licenses to educational institutions, many of which were public. See id. at 2-5. When the FCC first reserved frequencies for ---------------------------------------- Page Break ---------------------------------------- 7 noncommercial educational (or "public") television use, it fully expected that many public broadcasting facilities would be licensed to, and financed by, state and local governmental entities. See Television As- signments, Sixth Report and Order, 41 F.C.C. 148, 164-167 (1952); id. at 592 (separate opinion of Commis- sioner Hennock). 1. Approximately two-thirds of pub- lic broadcasting stations are now licensed to govern- mental entities. See League of Women Voters, 468 U.S. at 393 n.22. 2 With few exceptions, public broadcasters are sub- ject to the same regulatory standards as commercial broadcasters, including the requirement that each li- censee retain editorial control over the content of its ___________________(footnotes) 1 Since 1962, the federal government has provided substan- tial public funding for noncommercial educational broadcast- ing. See Educational Television Act of 1962, Pub. L. No. 87- 447, 76 Stat. 64; Public Broadcasting Act of 1967, Pub. L. No. 90-129, 81 Stat. 365; see also Accuracy in Media, Inc. v. FCC, 521 F.2d 288, 292 (D.C. Cir. 1975), cert. denied, 425 U.S. 934 (1976); Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033, 1040 (5th Cir. 1982) (en banc), cert. denied, 460 U.S. 1023 (1983). 2 Today, noncommercial educational stations in general (including those licensed to private entities) account for 365 of the 1,555 television broadcast licenses in the United States; among the nation's 12,142 total radio stations, 1,871 are classi- fied as noncommercial educational stations. See Federal Com- munications Comm'n, Mass Media Bureau, Broadcast Station Totals (May 9, 1997). Although governmental entities typi- cally seek licenses to operate noncommercial educational sta- tions, they may, and occasionally do, operate commercial sta- tions as well. See, e.g., Iowa State Univ. Broadcasting Corp., 9 F. C. Cl. Rcd 481 (1993), aff `d sub nom. Iowans for WOI-TV, Inc. v. FCC, No. 94-1014, 1995 WL 116251 (D.C. Cir. Feb. 24, 1995) (50 F.3d 1096 (Table)); George N. Gordon, Educational Television 9 (1965). ---------------------------------------- Page Break ---------------------------------------- 8 programming. 3 In particular, the FCC has addressed, and has specifically rejected, the position that the editorial decisions of state-entity broadcast licensees are subject to greater legal constraints than the deci- sions of any other licensee. The Commission reasons that, because there is no constitutional right of access to a broadcast station, and because Congress refused to treat broadcasters as common carriers, state-entity licensees have both the same "public trustee" responsibilities and the same editorial dis- cretion as private licensees. Accordingly, the Com- mission has concluded that the "public forum doc- trine" is not applicable to, and the First Amendment does not restrict, a state-entity licensee's choice and selection of programming. See Mississippi Auth. for Educ. Television, 71 F.C.C.2d 1296, 1303 n.12 (1979); City of New York Municipal Broadcasting Sys., 56 F.C.C.2d 169,170 (1975). 2. This case concerns the constitutionality of a decision by the Arkansas Educational Television Net- work (AETN) to sponsor and broadcast a 1992 debate ___________________(footnotes) 3 See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 650-651 (1994); League of Women Voters, 468 U.S. at 367; Muir, 688 F.2d at 1040; Accuracy in Media, 521 F.2d at 291. The exceptions are a ban on supporting or opposing any candidate for office; a requirement that such broadcasters operate on a noncommercial, nonprofit basis; and a general prohibition against accepting payment for the broadcast of commercial or political advertisements. See 47 U.S.C. 399, 399b; 47 C.F.R. 73.621. Like all other licensees, however, public broadcasters are subject to the "reasonable access" and "equal opportunities" requirements of Sections 312(a)(7) and 315(a) of the Commu- nications Act. See, e.g., Codification of Commission's Political Programming Policies, 7 F.C.C. Rcd at 681; Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079, 1092-1094 (1978). ---------------------------------------- Page Break ---------------------------------------- 9 between the two leading candidates for a seat in the United States House of Representatives. Peti- tioner Arkansas Educational Television Commission (AETC), an Arkansas state agency, operates AETN. 4 Petitioner did not invite respondent Ralph P. Forbes, an independent candidate for the congressional seat at issue, to participate in the debate. That decision rested not on any disagreement with respondent's political viewpoint, but on his lack of public support, the absence of 'public interest in his candidacy, and his negligible chance of electoral success. See Pet. 2-3, 6, 14-15; Pet. App. 8a-9a. Although candidates seeking airtime on any broad- cast station may pursue various administrative remedies under Sections 312(a)(7) and 315(a) of the Communications Act by filing a complaint with the FCC, see pp. 5-6, supra, respondent filed no such complaint and instead sought relief directly in federal district court, asserting, among other things, a First Amendment right to participate in the debate. The district court dismissed the suit for failure to state a legally valid claim, and respondent unsuccessfully sought preliminary injunctive relief in the court of appeals. See Pet. App. 43a-44a. Sitting en bane to hear respondent's appeal on the merits, however, the Eighth Circuit remanded the case to the district court for further proceedings. Pet. App. 25a-42a (Forbes I). It held that AETN is a state actor, that it "is faced with constraints not shared by other television stations," that respondent had "a qualified right of access created by [peti- tioner's] sponsorship of a debate," and that petitioner ___________________(footnotes) 4 We will refer to AETC and AETN collectively as "peti- tioner." ---------------------------------------- Page Break ---------------------------------------- 10 "must have a legitimate reason to exclude him strong enough to survive First Amendment scrutiny." Id. at 33a-34a. The court suggested that whether or not petitioner's "reason" was "strong enough" turned on whether the debate should be characterized as a "nonpublic" or, alternatively, as a "limited pub- lic" forum, an issue that the court remanded to the district court. Id. at 34a-37a. This Court denied certiorari. 513 U.S. 995 (1994). On remand, the district court found as a matter of law that the debate was a nonpublic forum. See Pet. App. 6a. The court also submitted to the jury special interrogatories asking whether the decision to ex- clude respondent from the debate was influenced by political pressure or disagreement with respondent's views. The jury answered those questions in the negative. See id. at 7a-9a. Based on those findings, the district court ruled for petitioner. The court of appeals reversed. Pet. App. 1a-18a (Forbes II), The court accepted the jury's determina- tion that the decision to exclude respondent from the debate was viewpoint-neutral and free of influence from political pressure. See id. at 7a-9a. Indeed, it specifically found that the decision to exclude peti- tioner "was made in good faith" and was "exactly the kind of journalistic judgment routinely made by newspeople." Id. at 16a. Nonetheless, although the court acknowledged (id. at 15a) that petitioner had never intended to open the debate to all legally qualified candidates, it held that the debate was a "limited public forum" and that petitioner was with- out authority to exclude peripheral candidates: "Whether [respondent] was viable was, ultimately, a judgment to be made by the people of the Third Con- gressional District, not by officials of the government ---------------------------------------- Page Break ---------------------------------------- 11 in charge of channels of communication." Id. at 16a. 5 Finding that petitioner's reason for excluding respon- dent from the debate was "neither compelling nor narrowly tailored''-the standard of review that the court deemed applicable to speech restrictions in limited public forums-the court reversed and re- manded for an assessment of damages. Id. at 17a-18a. On September 25, 1996, Justice Thomas denied petitioner's application to stay enforcement of the Eighth Circuit's decision pending the filing of a petition for certiorari. See Pet. 8. On September 26, 1996, the Eighth Circuit, in denying petitioner's motion to stay its mandate, issued a one-paragraph clarification of its earlier decision. Pet. App. 19a. The court stated that petitioner remains free, "to the extent provided by law," to cover "bona fide news events," including candidate debates, that axe "organized by people or groups other than [petitioner]." Ibid. The court added that its earlier decision did not necessarily require petitioner to in- vite write-in candidates to participate in any debate that it sponsored. Ibid. SUMMARY OF ARGUMENT In sponsoring a televised candidate debate, any broadcaster, whether public or private, makes numer- ous, interrelated editorial judgments concerning the debate's format, content, purpose, and participants. The product of those judgments is an expressive news program designed to satisfy the broadcaster's statu- ___________________(footnotes) 5 In so holding, the court noted (Pet. App. 37a n.4) that its decision conflicted with a decision reached by the Eleventh Circuit on essentially indistinguishable facts. See Chandler v. Georgia Pub. Telecommunications Comm'n, 917 F.2d 486 (1990), cert. denied, 502 U.S. 816 (1991); see also Muir, supra. ---------------------------------------- Page Break ---------------------------------------- 12 tory duty to exercise its own journalistic discretion to inform its viewers on matters of public interest. Sponsorship by a state actor does not convert that news program into a "public forum" to which private individuals have a constitutional right of access. Instead, televised debates and other news programs sponsored by state-entity broadcasters, like academic lecture series sponsored by state universities, are informative, focused presentations that, as a general matter, a state actor may constitutionally create, structure, and invest with such content as it deems appropriate. See generally Rosenberger v. Rector & Visitors of Univ. of Virginia, 115 S. Ct. 2510, 2519 (1995); Widmar v. Vincent, 454 U.S. 263,276 (1981). Indeed, subjecting the editorial discretion of state- entity broadcasters to case-by-case constitutional scrutiny would disserve "the First Amendment goal of producing an informed public capable of conducting its own affairs." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392 (1969). Compelling state-entity broadcasters to invite every legally qualified candi- date to any debate that they sponsor, or even expos- ing those broadcasters to a threat of constitutional litigation for excluding particular candidates, could discourage many such broadcasters from sponsoring political debates at all. Moreover, there is no obvious limiting principle that would afford minor candidates a constitutional "right of access" to televised debates but not, for example, to evening news broadcasts fea- turing interviews with the major candidates. Indeed, carried to its logical conclusion, the court of appeals' reasoning-that "journalistic judgments] routinely made by newspeople" cannot be entrusted to "employ- ees of government" (Pet. App. 16a)-could bar state- entity broadcasters from structuring weekly panel ---------------------------------------- Page Break ---------------------------------------- 13 discussions to include certain outside commentators but not others who might also wish to participate. Because broadcast journalism often requires diffi- cult judgments about the range of differing view- points that can be feasibly and usefully presented on any given topic, application of "forum" analysis to the editorial decisions of state-entity broadcasters could imperil the ability of those broadcasters to air many kinds of news programming. Nonetheless, even if that analysis were applicable, which it is not, and even if (as the court of appeals believed) the debate at is- sue here could properly be characterized as a limited public forum, petitioner's decision to exclude respon- dent would be constitutional. Petitioner's decision to exclude non-major candidates from the debate was both viewpoint-neutral and reasonably calculated to preserve the character of the debate as an efficient means for community viewers to learn the positions of the principal candidates. That showing is enough to justify regulation of speech in either a limited public forum or a nonpublic forum. See Rosenberger, 115 S. Ct. at 2517. ARGUMENT The court of appeals held that a state-entity public broadcaster, when sponsoring a political debate for the benefit of the viewers in its community, may not limit the participants to the principal candidates, but must also invite every "legally qualified" candidate- no matter how peripheral-for the elective office at issue. That decision was incorrect and should be reversed. ---------------------------------------- Page Break ---------------------------------------- 14 I. THE FIRST AMENDMENT DOES NOT CON- STRAIN THE EDITORIAL CHOICES OF STATE- ENTITY PUBLIC BROADCASTERS LICENSED TO OPERATE UNDER THE COMMUNICATIONS ACT a. "Congress specifically dealt with-and firmly rejected-the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues." CBS, Inc. V. Democratic Nat'1 Comm., 412 U.S. 94, 105 (1973). Instead, Congress relied on the diverse editorial decisions of individual broadcasters, combined with each broadcaster's statutory duty to serve the needs of its viewing community, to ensure a rich market- place of ideas in television broadcasting. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 378 (1984). "For better or worse, editing is what editors are for; and editing is selection and choice of material. That editors-newspapers or broadcast-can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided. Calculated risks of abuse are taken in order to pre- serve higher values." CBS, Inc., 412 U.S. at 124-125. That judgment is no less applicable to state-entity broadcasters than to any other broadcaster. See League of Women Voters, 468 U.S. at 392 n.21, 397- 399; see also CBS, Inc., 412 U.S. at 121-132 ("assum- ing [that] governmental action" inheres in the actions of commercial broadcasters in their role as public trustees, an issue on which the Court reached no majority, the First Amendment nonetheless creates no "right-of-access" to broadcast stations for pur- chase of editorial advertising). The Communications Act and the FCC's detailed regulatory scheme re- quire every broadcaster, whether public or private, to ---------------------------------------- Page Break ---------------------------------------- 15 use its own editorial discretion to serve the public interest, and no broadcaster may cede that responsi- bility to members of the general public. See pp. 4-5, supra; CBS, Inc., 412 U.S. at 108-114, see also 47 U.S.C. 153(h) (no broadcaster shall "be deemed a com- mon carrier") (to be remodified at 47 U.S.C. 153(10) (Supp. II 1996)); FCC v. Midwest Video Corp., 440 U.S. 689 (1979). A state-entity broadcaster's responsibility to exer- cise editorial control and judgment over the content of its programming is therefore inconsistent with any characterization of those broadcasters, or of the programs each such broadcaster airs, as "public forums." A structured debate between the two major candidates for a given political office, sponsored and aired by a state-entity licensee, is a news program designed to meet the viewing needs of the licensee's broadcast community. See pp. 5-6, supra. A news program is more likely to meet those needs if, as Congress intended, the sponsoring broadcaster may exercise its journalistic discretion to exclude mate- rial that would detract from the program's overall effectiveness. Such programs are not, and should not be equated with, government property opened up for untrammeled expression by a broad variety of individual speakers, cf. Rosenberger v. Rector & Visitors of Univ. of Virginia, 115 S. Ct. 2510, 2517 (1995); Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37,45 (1983); Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 655 (1981), and they therefore do not create a right of access to every peripheral candidate who wishes to appear on television. b. The court of appeals erred not simply in charac- terizing a state-entity licensee's news programming ---------------------------------------- Page Break ---------------------------------------- 16 as a "limited public forum," but also, more fundamen- tally, in employing "forum" analysis at all to resolve this case. As discussed in point II below, this Court has relied upon that analysis to determine the proper level of First Amendment scrutiny applicable to re- strictions on private speech that, while delivered on (or by means of) public property, is not itself part of a state actor's own expressive presentation to the public. See generally Rosenberger, 115 S. Ct. at 2518-2519; Widmar v. Vincent, 454 U.S. 263, 276 (1981); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). In that context, even when the pub- lic property at issue is characterized as a "non- public" forum, a speech regulation may be subject to significant First Amendment constraints (such as a viewpoint-neutrality requirement). See, e.g., Perry Educ. Ass'n, 460 U.S. at 46. But "forum" analysis is altogether inapplicable where, as here, a state actor 6 creates, and exercises ___________________(footnotes) 6 Petitioner "is an agency of the State of Arkansas," Pet. 2, and is therefore "part of the Government for purposes of the First Amendment." Lebron v. National R.R. Passenger Corp., .513 U.S. 374, 400 (1995); cf. West v. Atkins, 487 U.S. 42, 50-51 (1988); Polk County v. Dodson, 454 U.S. 312, 320-322 (1981). Nonetheless, federal law insulates the editorial decisions of state-entity broadcasters from political influence by the federal government, see League of Women Voters, 468 U.S. at 389-390, 394, and the Communications Act imposes on such broadcasters the same obligation to serve the public interest as it imposes on other licensees. Moreover, petitioner's organizational struc- ture and operating principles serve to protect its editorial decisions from influence by state or local government officials. See J.A. 110-112, 195-197; see also Pet. App. 7a-8a (accepting jury's finding that the decision to exclude respondent from the debate was not "influenced in any way by political pres- sure from anyone inside or outside of the Arkansas Educa- ---------------------------------------- Page Break ---------------------------------------- 17 continuing editorial control over, a structured news or educational program designed to edify the public on discrete topics. Cf. Rosenberger, 115 S. Ct. at 2519. In that setting, among others, the state actor may take the same reasonable measures a private party might pursue in analogous circumstances to ensure that its program is "neither garbled nor distorted." Ibid.; cf. International Society for Krishna Con- sciousness, Inc. v. Lee, 505 U.S. 672,678 (1992) (distin- guishing, for First Amendment purposes, between government "as lawmaker" and government "as a proprietor"); United States v. Kokinda, 497 U.S. 720, 725-726 (1990) (plurality opinion) (similar); Lehman v. City of Shaker Heights, 418 U.S. 298, 303-304 (1974) (plurality opinion) (similar). That conclusion follows from the more general principle that, "when the State is the speaker, it may make content-based choices." Rosenberger, 115 S. Ct. at 2518 (citing, inter alia, Widmar, 454 U.S. at 276, and Rust v. Sullivan, 500 U.S. 173 (1991)); see also id. at 2548 n.11 (Souter, J., dissenting). Of course, a televised candidate debate contains much speech that is not itself the speech of the sponsoring broadcaster and cannot be attributed to the broadcaster: during the course of the debate, the candidates give their own answers to the questions they are asked. Nonethe- less, the program itself-much like televised weekly panel discussions featuring the views of designated outside commentator-is the expressive product of a ___________________(footnotes) tional Television Network"). Although such influence on a broadcaster (whether or not it is a state entity) might impair the broadcaster's performance of its statutory obligations under the Communications Act, it would not, in our view, change the analysis under the First Amendment. ---------------------------------------- Page Break ---------------------------------------- 18 series of interrelated journalistic judgments by the broadcaster about format, purpose, the topics to be addressed, and the participants to be invited. Those judgments, and the news programs that they shape, are no more subject to" First Amendment challenge than would be the direct expression of a government spokesperson's views on a matter of public impor- tance. See generally Block v. Meese, 793 F.2d 1303, 1312-1314 (D.C. Cir.), cert. denied, 478 U.S. 1021 (1986). By analogy, when private actors sponsor can- didate debates (or televised weekly panel discussions), their editorial choice of, program form and content is at least as expressive in character, and at least as close to the core of the First Amendment's concern for journalistic freedom, as a cable operator's selec- tion of programming channels for carriage, which the Constitution protects. See Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 636-641 (1994); see also Denver Area Educ. Telecommunications Con- sortium, Inc. v. FCC, 116 S. Ct. 2374, 2386-2388 (1996) (plurality opinion); id. at 2423-2425 (opinion of Thomas, J.); see generally Rosenberger, 115 S. Ct. at 2548 n.11 (Souter, J., dissenting). Outside the broadcasting context as well, the First Amendment permits a state actor, inter alia, to structure a focused presentation for a discrete public purpose by selecting some private individuals, but not others, to participate in the presentation by giv- ing their own disparate views on given subjects. For example, in sponsoring a lecture series, a state uni- versity may invite outside speakers to give a di- versity of opinions on a topic without thereby be- stowing on individuals with additional (or contrary) opinions a constitutional right of access to the podium. See Widmar, 454 U.S. at 276-277; see also ---------------------------------------- Page Break ---------------------------------------- 19 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,267- 273 (1988); Avins v. Rutgers, 385 F.2d 151 (3d Cir. 1967) (denying claim of First Amendment right to publish article in law review issued by state univer- sit y), cert. denied, 390 U.S. 920 (1968). Similarly, in structuring a ceremony to commemorate the anniver- sary of a historical event, the federal government may select private speakers to give a range of viewpoints on that event-which may or may not coincide with any official government position-without thereby incurring an obligation to ensure that all available viewpoints are represented. And the government may select certain individuals to create a public mural or monument that reflects some, but not all, views on a topic such as the Holocaust. Cf. Piarowski v. Illinois Community College, 759 F.2d 625,631-632 (7th Cir.), cert. denied, 474 U.S. 1007 (1985). The principal legal constraints on the news pro- gramming of a state-entity broadcaster therefore derive not from the First Amendment, but from the Communications Act, which directs all broadcasters, public and private, to exercise reasonable editorial discretion in serving the public interest. See CBS, Inc., 412 U.S. at 124-125. And, as interpreted by the Commission, the Act also provides, in some cir- cumstances, administrative remedies to candidates who can show that a broadcaster's news coverage is so arbitrarily neglectful of or hostile to their candidacies that it does not constitute a reasonably based, good-faith exercise of journalistic judgment. 7 ___________________(footnotes) 7 See pp. 5-6, supra. In his amended complaint, respon- dent noted the "equal opportunities" provision of 47 U.S.C. 315(a), see J.A. 27, but he did not squarely contend that Section 315(a) entitled him to participation in the debate, see ibid.; ---------------------------------------- Page Break ---------------------------------------- 20 But the First Amendment provides no basis for subjecting the editorial discretion of state-entity licensees and programming networks to greater scru- tiny than the discretion of their counterparts in private commercial broadcasting. The court of appeals' decision appears to rest, at least in part, on the concern that, in the absence of First Amendment constraints, a state-entity broad- caster might arbitrarily discriminate against "all Republicans" or "all Methodists" in its choice of debate participants. Pet. App. 34a; see also id. at 4a (permitting state-entity licensee to exclude non- major candidates from debate would "place too much faith in government"). That concern is misguided. As an initial matter, such discrimination would subject any broadcaster, public or private, to admin- istrative measures under the Communications Act. See pp. 5-6, supra; see also note 3, supra. Even in the absence of those statutory protections, however, the actions of a state-entity broadcaster, like all actions of any state actor, "must be sufficiently reason- able to satisfy the Due Process Clause and can- not unfairly discriminate in violation of the Equal ___________________(footnotes)I nstead, he appeared to argue only that Section 315(a) entitled him to airtime on petitioner's stations for other purposes (such as airing an anti-abortion advertisement). See Pet. App. 31a. In any event, the court of appeals correctly denied his claim under Section 315(a) because he had failed to exhaust. his administrative remedies before the FCC. Ibid. As discussed above (see p. 5, supra), Section 312(a)(7) of the Commu- nications Act independently requires broadcasters to sell or donate airtime for use by federal political candidates. See 47 U.S.C. 312(a)(7); CBS, Inc. v. FCC, 453 U.S. 367 (1981). Respondent has raised no claim under that provision, which in any event has no relevance to a broadcaster's choice of political programming. ---------------------------------------- Page Break ---------------------------------------- 21 Protection Clause." Southeastern Promotions, 420 U.S. at 572 n.2 (Rehnquist, J., dissenting). Invidious discrimination against "all Republicans" or some other group, detached from any legitimate journalis- tic purpose, would lack a rational basis and would be constitutionally invalid on that ground alone. Cf. ibid. (even in absence of First Amendment con- straints, "[a] municipal auditorium which opened it- self to Republicans while closing itself to Democrats would run afoul of the Fourteenth Amendment"). c. Not only do First Amendment principles give private individuals no right to appear on public televi- sion, but they in fact counsel strongly against recog- nizing any such right, As this Court has held, the "First Amendment goal of producing an informed public capable of conducting its own affairs," Red Lion, 395 U.S. at 392, is better served not by granting private individuals rights of access to the airwaves, but by respecting the "journalistic discretion of broadcasters in the coverage of public issues." CBS, Inc., 412 U.S. at 124; see also League of Women Voters, 468 U.S. at 398. State-entity broadcasters and programming net- works may effectively exercise that discretion only if they, like all other broadcasters and programmers, are permitted to structure their news programming without fear that aggrieved parties will sue to chal- lenge the details of that programming as the products of unconstitutional editorial criteria. Cf. CBS, Inc., 412 U.S. at 1.27 (rejecting "right-of-access" interpre- tation of Communications Act that would require "a continuing case-by-case determination of who should be heard and when"). Journalism inevitably requires difficult judgments about content, and no journalist ---------------------------------------- Page Break ---------------------------------------- 22 can cover all viewpoints on all topics. Subjecting the editorial decisions of public broadcasters to case- by-case scrutiny for content- or viewpoint-neutrality under "forum" analysis, see Rosenberger, 115 S. Ct. at 2517, could seriously discourage such broadcasters from providing full coverage of political contests. Carried to its logical conclusion, the court of ap- peals' contrary approach would invite constitutional litigation concerning not just political debates aired by state-entity licensees and programming networks, but also a broad range of other news program- ming that has traditionally fallen within every broad- caster's editorial discretion. For example, any state- entity broadcaster or programming network that airs an interview with a political candidate as part of its nightly news coverage could arguably be required, under the Eighth Circuit's reasoning, to air a separate interview of every rival candidate who seeks equal public exposure. 8 Moreover, the Eighth ___________________(footnotes) 8 While the petition for certiorari in this case was pending, the Eighth Circuit agreed to en bane consideration of whether a state-entity licensee may sponsor and air news programs featuring interviews with the "major candidates" for political office. See Marcus v. Iowa, Pub. Television, No. 96-3645SIDM (Dec. 10, 1996). A divided panel of the Eighth Circuit had earlier denied preliminary injunctive relief to non-major candi- dates who sought to appear on those programs; it reasoned that, even if the programs at issue are limited public forums, the state-entity licensee likely has a "compelling interest" in "limiting access to newsworthy candidates." Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1144 (1996). In analysis that a dissenting judge characterized as an effort "to distinguish the indistinguishable," ibid. (Beam, J., dissenting), the panel major- ity explained its tentative departure from the decision in this case on the ground that, "[u]nlike `viability,' which is ulti- mately for the voters to decide, `newsworthiness' is peculiarly a ---------------------------------------- Page Break ---------------------------------------- 23 Circuit's reasoning would also seem to grant rights of television access not just to uninvited candidates, but to anyone with a view about a matter of public controversy. If, as the court of appeals believed, "journalistic judgments] routinely made by news- people'' cannot be entrusted to ''employees of govern- ment" (Pet. App. 16a), then, arguably, anyone could demand airtime to respond to the views expressed by anyone else interviewed in a news program, or featured in a panel discussion, sponsored by a state- entity licensee or programming network. Even if confined to the context of candidate debates, however, the court of appeals' approach would harm public awareness of, and discussion about, political contests throughout the United States. The value of a debate does not necessarily increase with the number of participants; as common sense suggests, the inclusion of too many participants could make almost any debate unwieldy and uninformative. As a practical matter, the Eighth Circuit's approach could well lead many state-entity broadcasters simply to abandon plans to sponsor candidate debates. For example (see Pet. 11), the Nebraska Educational Tele- communications Network canceled a 1996 senatorial debate because it feared that, under the decision below, it would have to invite all minor candidates who wished to appear alongside the major contenders. Such consequences are unfortunate: not just for state-entity licensees themselves, but, more signifi- cantly, for the innumerable American citizens who ___________________(footnotes) decision within the domain of journalists." Id. at 1142. On March 24, 1997, the Eighth Circuit deferred further considera- tion of Marcus until after this Court's final disposition of this case. ---------------------------------------- Page Break ---------------------------------------- 24 rely on such licensees to sponsor televised debates among the principal candidates for federal, state, and local offices. II. EVEN IF "FORUM" ANALYSIS WERE APPLICA- BLE TO THE EDITORIAL DECISIONS OF STATE- ENTITY BROADCASTERS, PETITIONER'S REA- SONABLE, VIEWPOINT-NEUTRAL CHOICE OF DEBATE PARTICIPANTS STILL WOULD HAVE BEEN CONSTITUTIONAL As a general matter, "forum" analysis imposes constitutional constraints on government regulation of private expression on (or by means of) public property that the government does not itself seek to use as the site or medium of its own expressive presentation to the public. See generally Perry Educ. Ass'n, 460 U.S. at 45-46. The most basic dis- tinction drawn in this area is between "traditional" public forums, in which the government may not regulate on the basis of speech content without a compelling state interest, and "nonpublic forum[s]," in which speech "can be restricted as long as the restrictions are `reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view.' " Cornelius v. NAACP Legal Defense & Educ. Fund, inc., 473 U.S. 788, 800 (1985) (quoting Perry Educ. Ass'n, 460 U.S. at 46). Similar to "nonpublic" forums are forums "limited" to certain subjects or groups; there too, non- viewpoint-based "content discrimination * * * may be permissible if it preserves the purposes of th[e] limited forum." Rosenberger, 115 S. Ct. at 2517; see also Perry Educ. Ass'n, 460 U.S. at 46 n.7. "Limited" public forums are a subset of "designated" public forums, and should be distinguished from other ---------------------------------------- Page Break ---------------------------------------- 25 kinds of designated forums that are not so limited, such as historically closed government property that the government has "generally open[ed] to the public" as "a place for expressive activity" of all kinds. Id. at 45. Speech restrictions in that latter category of "designated" public forum, unlike speech restrictions in forums "limited" to certain topics or groups, are generally subject to the same strict content- neutrality requirement applicable to truly traditional public forums such as streets and sidewalks. See id. at 45-46 & n.7; Cornelius, 473 U.S. at 802; cf. Denver Area, 116 S. Ct. at 2388-2389 (plurality opinion); id. at 2413-2414 (opinion of Kennedy, J.). Because the First Amendment has no application to the editorial choices that define a state-entity broadcaster's news programming, this case can and should be decided without reference to "forum" analysis. That analysis, as we have observed (see p. 16, supra), is applicable only where the govern- ment passively permits the use of its property to "encourage a diversity" of private views, see Rosenberger, 115 S. Ct. at 2519; but it is inapplicable in (for example) the circumstances presented here, in which a state actor designates private speakers to participate in a focused presentation that the state actor itself has designed for a discrete public purpose and over which it exercises close editorial control. Nonetheless, even if "forum" analysis were applica- ble in this context, which it is not, then-whether this candidate debate is properly characterized as a "limited public" or as a "nonpublic" forum-peti- tioner's choice of debate participants still would have been constitutional. The court of appeals not only acknowledged that petitioner's_ decision to exclude respondent from the debate was "exactly the kind of ---------------------------------------- Page Break ---------------------------------------- 26 journalistic judgment routinely made by newspeople," Pet. App. 16a, but further accepted the jury's deter- mination that petitioner's decision was not influenced by political pressure and was not "based on dis- agreement with [respondent's] political viewpoint," id. at 9a. Thus, under the facts embraced by the court of appeals, petitioner's choice of participants -was viewpoint-neutral (and arguably content-neutral as well) and reasonably calculated to preserve the char- acter of the debate. Petitioner created the debate as an efficient means for community viewers to learn more about the candidates who, with the election drawing near, had attracted significant public inter- est or support; and to that original and entirely le- gitimate purpose petitioner remained faithful. See generally Buckley v. Valeo, 424 U.S. 1, 96 (1976) (per curiam) ("Congress' interest in not funding hopeless candidacies with large sums of public money neces- sarily justifies the withholding of public assistance from candidates without significant public support.") (citation omitted); see also Denver Area, 116 S. Ct. at 2414 (opinion of Kennedy, J.). A state actor need show no more to justify speech regulations designed "to preserve the limits of the forum it has created." Rosenberger, 115 S. Ct. at 2517 (speech restrictions in limited public forum must be viewpoint-neutral and "reasonable in light of the purpose served by the forum"); id. at 2547-2549 (Souter, J., dissenting); accord Perry Educ. Ass`n, 460 U.S. at 46 & n.7; ---------------------------------------- Page Break ---------------------------------------- 27 CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. WALTER, DELLINGER Acting Solicitor General WILLIAM E. KENNARD General Counsel LAWRENCE G. WALLACE Deputy Solicitor General CHRISTOPHER J. WRIGHT Deputy General Counsel JONATHAN E. NUECHTERLEIN Assistant to the Solicitor General DANIEL M. ARMSTRONG Associate General Counsel C. GREY PASH, JR. Counsel Federal Communications Commission MAY 1997 ---------------------------------------- Page Break ----------------------------------------