with whom
HATCHETT, ANDERSON, TATE and THOMAS A. CLARK, Circuit Judges, join, dissenting.I dissent because I am convinced that the majority has committed a serious error in applying the law to these cases. The clearly defined issue in these appeals is whether the executive officers of a state operated public television station may cancel a previously scheduled program because it presents a point of view disagreeable to the religious and political regime of a foreign country. The majority opinion permitting cancellation on these grounds flies completely in the face of the First Amendment and our tradition of vigilance against governmental censorship of political and religious expression.
Death of a Princess is a dramatization of one man’s investigation of the circumstances and motives which led to the July 1977 execution of a Saudi Arabian princess and her lover for adultery. The film presents narrative and recreated interviews which examine the religious, cultural, and political hierarchy of Saudi Arabian society. Death of a Princess is directly critical of many aspects of the Saudi regime, including the government’s enforcement of religious and cultural proscriptions.
The Saudi government reacted strongly to the production and distribution of Death of a Princess. After the film was shown in Great Britain, Saudi Arabia temporarily recalled its ambassador in protest. The Saudis again evidenced strong displeasure when PBS scheduled the film for broadcast in May 1980 as part of its World series.
The record in Muir reveals that during the period immediately preceding the May 12 air date the Alabama Educational Television Commission received numerous telephone calls expressing concern over the scheduled telecast of Death of a Princess.1 William Harbert of Harbert Construction *1054Company, an Alabama firm with substantial Saudi and Middle Eastern business, along with a representative of the Birmingham Area Chamber of Commerce, personally contacted Henry Bonner, program manager of the Alabama Educational Television Commission, to express their concern regarding the proposed broadcast. On May 9th Bonner reported these conversations and the fact of the telephone calls to Edward Wegener, general manager of the Alabama Educational Television Commission, who in turn contacted Jacob Walker, Chairman of the Alabama Educational Television Commission.
Walker scheduled a telephone conference with the other commissioners for later in the day. At some point, Walker spoke directly with Harbert, who supplied him with most or all of the facts relied on by the commission in reaching its conclusion that “broadcast of the program could expose Alabama citizens in the Middle East to physical and emotional abuse through rioting, physical assault and property damage.” The plaintiffs unsuccessfully maintained that the decision “was one made out of political considerations.” (R. at 96.)
The district court in Barnstone found that Dr. Patrick Nicholson, Vice President for Public Information and University Relations of the University of Houston, unilaterally decided to prevent broadcast of Death of a Princess on the University operated television station, KUHT-TV. Barnstone v. University of Houston, 514 F.Supp. 670 (S.D. Tex. 1980). Nicholson, who had never made a programming decision in his 17 years’ tenure and who was opposed in his decision to cancel the scheduled program by the station’s programming director and eventually by the general manager of KUHT-TV, cited as his reason the “strong and understandable objections by the government of Saudi Arabia.” Id. at 674. While Dr. Nicholson testified that he feared the broadcast might “exacerbate the situation in the Middle East,” the court found that he was “entirely unable ... to explain what he meant by this phrase .. .. ” Id. at 691.
The majority of this Court — now in the twilight of its long and honorable existence2 — has affirmed Muir and reversed Barnstone in an opinion which grants state authorities unlimited discretion to regulate the content of public television within their control. Because state law and FCC licensing grant defendants full broadcasting authority over these stations in their respective areas, the majority's decision confers unrestricted control over a monopoly market. See Ala. Code §§ 16-7-1-5; Barnstone v. University of Houston, supra, 514 F.Supp. at 672-73, 680. By finding no other restriction on state operated television than that imposed by federal regulation, the Court has elevated “the Communications Act above the Constitution.” Barn-stone, supra, 514 F.Supp. at 686. Moreover, the Court has abdicated its duty in an area in which the plaintiffs have no comparable remedy.
The freedom of expression protected by the First Amendment encompasses the rights of both speakers and listeners. CBS, Inc. v. FCC, 453 U.S. 367, 101 S.Ct. 2813, 2829, 69 L.Ed.2d 706 (1981); FCC v. Nat’l Citizens Committee for Broadcasting, 436 U.S. 775, 800, 98 S.Ct. 2096, 2114, 56 L.Ed.2d 697 (1978); First Nat’l Bank of Boston v. *1055Bellotti, 435 U.S. 765, 776-77, 98 S.Ct. 1407, 1415-1416, 55 L.Ed.2d 707 (1978); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Coun., Inc., 425 U.S. 748, 756, 96 S.Ct. 1817, 1822, 48 L.Ed.2d 346 (1976); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973); Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S.Ct. 2576, 2581-82, 33 L.Ed.2d 683 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-90, 89 S.Ct. 1794, 1804-1807, 23 L.Ed.2d 371 (1969); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); Lamont v. Postmaster General, 381 U.S. 301, 305-07, 85 S.Ct. 1493, 1495-1497, 14 L.Ed.2d 398 (1965). As the Supreme Court unanimously held in Red Lion, supra:
It is the right of the viewers and listeners, not the right of the broadcasters which is paramount. It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged ....
395 U.S. at 390, 89 S.Ct. at 1806 (citations omitted). The proper inquiry for this Court, then, should not be whether the Communications Act grants state broadcasters editorial discretion, but whether the action of state officials in these cases abridged free expression protected by the First Amendment. See Bellotti, supra.
Our system of constitutional protection clearly reflects that government may not restrict the free discussion of public issues on the basis of the political, religious, or ideological content of the message. Freedom of expression concerning public issues “is at the heart of the First Amendment’s protection.” First Nat’l Bank of Boston v. Bellotti, supra, 435 U.S. at 776, 98 S.Ct. at 1415; Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484 (1966); Garrison v. Louisiana, 379 U.S. 64, 74—75, 85 S.Ct. 209, 215-216, 13 L.Ed.2d 125 (1964) (“speech concerning public affairs is more than self-expression; it is the essence of self-government”). Self-government suffers when those in power suppress competing views on public issues. Bellotti, supra, 435 U.S. at 777 n. 12, 98 S.Ct. at 1416 n. 12. As a result, federal courts have consistently struck down content-based restrictions on the discussion of public issues. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (statute which prohibited all peaceful picketing except for labor pickets impermissibly discriminated between lawful and unlawful activity on the basis of the content of the demonstrator’s communication); First Nat’l Bank of Boston v. Bellotti, supra, (statute which prevented corporate expression on tax issue); Virginia State Board of Pharmacy v. Va. Citizens, supra, (invalidating prohibition on dissemination of over-the-counter drug prices); Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-90, 33 L.Ed.2d 212 (1972) (invalidating picketing ordinance which permitted labor picketing); Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (invalidating prohibition against discussion of political candidates on the last day of the campaign); Lamont v. Postmaster General, supra, (unjustifiable burden on the addressee’s First Amendment rights to require that intended recipient of “communist” material affirmatively request that it be delivered); see Board of Educ. v. Pico,-U.S.-, -, 102 S.Ct. 2799, 2810, 73 L.Ed.2d 435 (1982) (plurality) (“[L]ocal school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to ‘prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’ ”) (quoting West Virginia v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943)).
This Court held in Bazaar v. Fortune, 476 F.2d 570, 574, aff’d as modified en banc, 489 F.2d 225 (5th Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 *1056(1974), that once the state recognizes an activity which has elements of free expression it must-operate the activity in accord with First Amendment principles. In Fortune this Court affirmed an order restraining University of Mississippi officials from interfering with the publication of a university sponsored literary magazine they considered controversial. The Court held in Brooks v. Auburn University, 412 F.2d 1171 (5th Cir. 1969), that the state, university unconstitutionally abridged the First Amendment rights of disappointed listeners when Auburn’s president withdrew a speaking invitation extended to the Reverend William Sloan Coffin, then Chaplain of Yale University, because of concern over what Reverend Coffin might speak about. The law is clear in this nation and up until now in this Circuit that once the government establishes a particular medium for the expression of different viewpoints it may not later intervene for the purpose of eliminating unpopular views. The law as I read and understand it has never condoned censorship in the name of editorial discretion. See, e.g., Board of Educ. v. Pico, supra,U.S. at-, 102 S.Ct. at 2814 (Blackmun, J., concurring) (“[0]ur precedents command the conclusion that the State may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons.”) (footnote omitted).
The majority opinion completely ignores the critical issue in these cases by concluding that “[t]he state officials in charge of AETC and KUHT-TV have simply exercised their statutorily mandated discretion and decided not to show a particular program at a particular time.” The very simple answer to that position is that FCC regulation is designed neither to preempt judicial scrutiny nor to redress state censorship as alleged in these cases.
Federal regulation of the broadcast media, for the most part, reflects the government’s attempt to balance the allocation of a scarce resource with the First Amendment interests of private broadcasters and the public. See Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 386-392, 89 S.Ct. at 1804-1808; CBS, Inc. v. Democratic Nat’l Comm., supra, 412 U.S. at 103 — 114, 93 S.Ct. at 2086-2092. The fact that state operated television stations are entitled to exercise editorial discretion, however, does not absolve them of their First Amendment responsibilities. “The First' Amendment protects the press from governmental interference; it confers no analogous protection on the Government.” CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. at 139, 93 S.Ct. at 2104 (Stewart, J., concurring) (emphasis in original); Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390, 89 S.Ct. at 1806 (First Amendment protects against governmental monopolization of the free marketplace of ideas). The majority commits fundamental error when it permits state broadcasters to ride on the coattails of their private counterparts. Even when the majority admits that state broadcasters “are without the protection of the First Amendment,” it offers no principled reason why this “implies only that government could possibly impose restrictions on these licensees which it could not impose on private licensees.”
In addition, while it is true that the FCC hears complaints similar to those raised in these cases, it is also true that the FCC routinely denies relief. A brief review of the cases cited by the majority reveals that the FCC steadfastly refuses to depart from its “longstanding policy of deferring to licensee discretion.” Right to Life, Inc. v. WAVE-TV, 59 F.C.C.2d 1103 (1976). As the FCC itself has stated, the Commission “is prohibited by the First Amendment to the Constitution and Section 326 of the Communications Act of 1934 . . . from censoring broadcast material, and it does not attempt to direct licensees in the selection or presentation of specific material.” KMAP, Inc., 72 F.C.C.2d 241, 244 (1979):
[BJecause of the sensitive First Amendment considerations involved, the Commission must strike a delicate balance between ensuring that licensees operate in the public interest and avoiding unnecessary interference in their programming decisions. Thus, the Commission has made clear that both the responsibility for and discretion in the selection of broadcast material rests with licensees.
*1057Id.; RKO General, Inc., 46 F.C.C.2d 240, 244 (1974). In its pursuit of the public interest the FCC routinely defers to licensee “discretion as to the manner in which a controversial issue is to be covered, including such matters as appropriate spokesman and program format.” William Harsha, 31 F.C. C.2d 847 (1971).3
In order for the FCC to take adverse action against a broadcaster for suppressing a particular viewpoint, the petitioner “must present substantial extrinsic evidence of intentional and specific incidents” of suppression. KMAP, Inc., supra, 72 F.C.C.2d at 244; Citizens Communications Center, 25 F.C.C.2d 705, 707 (1970) (evidence must firmly establish discriminatory policy inconsistent with the public interest); see Stone v. FCC, 466 F.2d 316, 322 (D.C. Cir. 1972) (court defers to expertise and experience of commission and will reverse grant of application only if commission’s position is arbitrary, capricious, or unreasonable).4 Complaints regarding individual cancellation decisions are regularly denied. E.g., Right to Life of Louisville, Inc., 59 F.C.C.2d 1103 (1976); RKO General, Inc., 46 F.C.C.2d 240 (1974); William Harsha, 31 F.C.C.2d 847 (1971); Citizens Communications Center, 25 F.C.C.2d 705 (1970).
Thus it is clear that the majority’s deference to the FCC in these cases that present important constitutional questions amounts io nothing more than “. . . a promise to the ear ...” which will most certainly be broken “to the hope.” See Cuthbert v. United States, 278 F.2d 220 (5th Cir. 1960). Relying on the system of FCC regulation, the majority has granted state broadcasters immunity from constitutional scrutiny. There is nothing, however, in the Communications Act or in the system of FCC regulation which prevents judicial scrutiny. On the contrary, the Supreme Court has recognized the need for vigilance in the face of governmental regulation. See, e.g., Red Lion, supra, 395 U.S. at 390, 89 S.Ct. at 1806; CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. at 104-05, 93 S.Ct. at 2087-88. To rely on FCC regulation is to create a substantial gap in the protection of First Amendment interests. Because the FCC does not distinguish between private and public broadcasters in its regulation of the airwaves, see City of New York Mun. Broadcasting System, 56 F.C.C.2d 169 (1975), it provides no protection from the kind of state censorship alleged in these cases.
The concurring opinions of Judges Rubin and Garwood erroneously suggest that official censorship may only be found when the state operates a medium which is “content neutral,” see, e.g., City of Madison Joint School Dist. v. Wisconsin Emp. Rel. Com’n, 429 U.S. 167, 175, 97 S.Ct. 421, 426, 50 L.Ed.2d 376 (1976), or which is a “public *1058forum.” E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). In all other cases, the concurrences suppose, the state must be given unbridled authority to discriminate among different viewpoints, even if the state chooses to suppress a particular point of view solely on the basis of the political, ideological, or religious content of the message. Otherwise, the opinions caution, any citizen would have the “right” to force the state operated televisions in this case to broadcast any program of his choosing.
These suppositions erroneously ignore the proper considerations a Court may give the editorial process, as demonstrated by this Court’s previous experience. For example, the issue presented to this Court in Bazaar v. Fortune, supra, a case relied on to some extent by Judge Rubin, was not whether the University of Mississippi’s literary magazine was “content neutral” or whether any student had the “right” to force the English Department and its student editors to publish any given article or short story. The issue in Fortune was whether the University chancellor could prevent the distribution of the magazine because one of its short stories contained “inappropriate” material criticizing contemporary race relations. 476 F.2d at 572-73. See Dickey v. Ala. State Bd. of Educ., 273 F.Supp. 613, 618-19 (M.D. Ala. 1967), vacated as moot sub nom. Troy State Univ. v. Dickey, 402 F.2d 515 (5th Cir. 1969) (district court order recognizing restrictions on the editorial operation of a school newspaper but finding ban on criticism of the Governor an unreasonable restriction). Similarly, in Brooks v. Auburn, supra, the issue before this Court was not whether the speakers’ committee was forced to disregard all guidelines in selecting a speaker or whether any given student had the “right” to name the next speaker who was to be invited to the University. The issue in Brooks was whether the University president could effectively censor the political viewpoint of a previously chosen speaker by refusing to authorize payment of his expenses. 412 F.2d at 1172. In Brooks, as in Fortune, this Court concentrated on the particulars of the alleged censorship decision in the context of the existing editorial format. It was not necessary for the Court to find a “content neutral” or “open forum” setting in order to evaluate the claim of official censorship.
In the recent case of Board of Educ. v. Pico, - U.S. -, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982), both the plurality and Justice Blackmun recognized the presence of enforceable First Amendment rights, even within the context of a highly discretionary state function. As Justice Black-mun wrote, concurring: “In my view, we strike a proper balance here by holding that school officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them, when that action is motivated simply by the officials’ disapproval of the ideas involved.” Id. at -, 102 S.Ct. at 2814 (Blackmun, J., concurring). Unlike Judges Hill and Rubin, I find allegations of censorship in the context of state operated television broadcasting entitled to much greater scrutiny than similar allegations involving school board regulation of students’ reading material. Public television stations “provide educational, cultural, and discussion programs which serve the general community.” Senate report to the Public Broadcasting Act of 1967, 47 U.S.C.A. §§ 390-399, S. Rep. No. 222, 90th Cong., 1st Sess., reprinted in 1967 U.S. Code Cong. & Ad. News 1772, 1782. AETC is specifically charged with the duty “of making the benefits of educational television available to and promoting its use by inhabitants of Alabama . . . . ” Ala. Code § 16-7-5. Viewed in the context of these stations’ purposes and the framework of existing regulation, the editorial discretion of a state broadcaster is more circumscribed than that of a school board member. Moreover, the facts of both Muir and Barnstone reveal dramatic departures from established editorial practice in direct response to the urgings or implied threats of a foreign government.
Finally, the concurring opinions would appear to recognize official censorship by state television broadcasters when that cen*1059sorship is conducted as a “policy or practice” of the state. Neither opinion, however, advances a principled distinction between censorship which is a “policy or practice” and that which is an individual overt act of suppression. It is clear to me that the First Amendment does not prohibit censorship only when it reaches the level of state “policy.” To do so would be to allow the state to abrogate the fundamental concept of individual civil liberty. See, e.g., Pickering v. Board of Educ., 391 U.S. 563, 574-75, 88 S.Ct. 1731, 1737-38, 20 L.Ed.2d 811 (1968).
It is the judiciary which is the ultimate arbiter of the fundamental rights involved in these cases.5 Courts may not abdicate their duty by reference to a system of administrative regulation, or because they would prefer that the plaintiffs take their complaints elsewhere. We must review the allegations of state censorship in the context of television broadcasting according to applicable legal standards. The standard for evaluating the allegations of abridgement in these cases must be that which was articulated in Mt. Healthy School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Once the plaintiff demonstrates that the government has silenced a message because of its substantive content, the government’s decision becomes presumptively unconstitutional. The government should then be allowed to demonstrate that it would have taken the same action on the basis of legitimate reasons. Finally, the plaintiff should be given a full opportunity to refute the government’s assertion.
Because of the importance of the values at stake, and the ability of the defendant usually to offer a colorably permissible reason for its actions, the trier of fact must critically examine the asserted rationale for the defendant’s conduct. In Bazaar v. Fortune this Court rejected defendants’ assertion that they were attempting to prevent the publication of a literary magazine because it contained obscenities when no action had been taken against similar writings found in the university library or on students’ required reading lists. 476 F.2d at 578-79.6 Similarly, in Brooks v. Auburn the Court rejected defendants’ assertion that lawlessness would result from a speaker’s engagement when defendants were unable to present suitable facts of potential reaction. 412 F.2d at 1173. In addition, the trier of fact must weigh the rationale for action with the extent of the action taken. An absolute ban on a particular program would require a stronger showing of justification than would a temporary withholding of the broadcast.
No one would doubt that “broadcast media pose unique and special problems not present in the traditional free speech case.” CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. at 101, 93 S.Ct. at 2086. The course of these cases amply demonstrates that proposition. The solution, however, is neither to deny the existence of constitutional rights nor to abdicate judicial responsibility. The solution is to face the problems squarely and resolve the issues accordingly.
The plaintiffs in Muir and Barnstone have made serious allegations of state censorship which the defendants have attempt*1060ed to refute. Muir comes to us without benefit of a full hearing. The district court in Barnstone made substantial findings yet considered the evidence in light of an incorrect legal standard.7 I would remand both cases for redetermination in light of the correct legal standard and burden of proof.
. The district court in Muir entered its orders denying the preliminary injunction and granting defendants’ motion for summary judgment in this case without benefit of oral evidence and on the basis of very limited discovery. Assuming that the court did not abuse its discretion in denying the preliminary injunction, the issue of summary judgment remains. In *1054reviewing the appropriateness of summary judgment this Court must view the facts in the light most favorable to the nonmoving party to determine (i) whether there is a genuine issue as to any material fact, and (ii) whether the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Northeast Ga. Radiological Associates, P.C. v. Tidwell, 670 F.2d 507, 510 (5th Cir. 1982); Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980).
. By Public Law 96-452, 94 Stat. 1994, effective October 1, 1981, the United States Congress divided the Fifth Circuit Court of Appeals into two new autonomous circuits — the new Fifth Circuit and the Eleventh Circuit. The cases now under consideration, as required by the Act, are being considered by the judges of the former Fifth Circuit as if the legislation dividing the circuit “had not been enacted.” Pub. Law 96 — 452 § 9(3). Thus, having been established by Congress in 1891 as one of the original Circuit Courts of Appeals, the Fifth Circuit is indeed in its twilight.
. Although a controversy arose over the broadcast of Death of a Princess, it does not appear that the program itself dealt with a controversy within the meaning of the fairness doctrine. See RKO General, Inc., 46 F.C.C.2d 240, 243 (1974).
. The substantial quantum of proof a petitioner must produce in order to persuade the FCC to deny a state broadcaster’s license is clearly illustrated in Alabama Educational Television Commission, 50 F.C.C.2d 461 (1975). After finding overwhelming evidence of “serious misconduct involving discriminatory programming practices and an all but complete failure to serve the needs of Alabama’s black residents” the Commission declined to renew AETC’s license. 50 F.C.C.2d at 477. In rendering its decision, the FCC emphasized the practically uncontroverted evidence of AETC’s racially discriminatory policies. “The systematic exclusion of blacks and of programming designed to serve their distinctive interests is thus demon-strafed by the substantial evidence adduced by petitioners that blacks rarely appeared on AETC programs; that no black instructors were employed in connection with locally-produced in-school programs; and that unexplained decisions or inconsistently applied policies forced the pre-emption of almost all black-oriented network programming.” Id. at 469. The Commission cautioned, however, that “[a]ny one of these decisions [to cancel black-oriented programs], taken by itself, might be reasonably regarded as a valid exercise of a licensee’s discretion as to scheduling or program content.” Id. In taking action the FCC acknowledged that it had refrained from imposing the same sanctions on AETC that it would have imposed on a private broadcaster on account of the considerable deference the Commission traditionally afforded state authority. See Puerto Rico Telephone Co., 47 F.C.C.2d 1166 (1974).
. The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943); see Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 534-35, 11 L.Ed.2d 481 (1964).
. As this Court concluded in Fortune:
“. . . [W]e can only reiterate that speech cannot be stifled by the state merely because it would perhaps draw an adverse reaction from the majority of people, be they politicians or ordinary citizens, and newspapers. To come forth with such a rule would be to virtually read the First Amendment out of the Constitution and, thus, cost this nation one of its strongest tenets.
476 F.2d at 579.
. Judge McDonald found that KUHT-TV was a public forum and concluded that “decisions not to show programs on it may be challenged as prior restraint.” 514 F.Supp. at 689. Evaluating the evidence accordingly, the court found that defendants’ explanation for cancelling the program was “unacceptable as a matter of law.” id. at 691. As a result, it is not possible to determine how the district court would have evaluated the evidence in light of the Mt. Healthy standard.