Federal Communications Commission v. League of Women Voters of California

Justice Stevens,

dissenting.

The court jester who mocks the King must choose his words with great care. An artist is likely to paint a flattering portrait of his patron. The child who wants a new toy *409does not preface his request with a comment on how fat his mother is. Newspaper publishers have been known to listen to their advertising managers. Elected officials may remember how their elections were financed. By enacting the statutory provision that the Court invalidates today, a sophisticated group of legislators expressed a concern about the potential impact of Government funds on pervasive and powerful organs of mass communication. One need not have heard the raucous voice of Adolf Hitler over Radio Berlin to appreciate the importance of that concern.

As Justice White correctly notes, the statutory prohibitions against editorializing and candidate endorsements rest on the same foundation. In my opinion that foundation is far stronger than merely “a rational basis” and it is not weakened by the fact that it is buttressed by other provisions that are also designed to avoid the insidious evils of government propaganda favoring particular points of view. The quality of the interest in maintaining government neutrality in the free market of ideas — of avoiding subtle forms of censorship and propaganda — outweigh the impact on expression that results from this statute. Indeed, by simply terminating or reducing funding, Congress could curtail much more expression with no risk whatever of a constitutional transgression.

In order to explain my assessment of the case, it is necessary first to supplement the majority’s description of the impact of the statute on free expression and then to comment on the justification for that impact.

I

The relevant facts may be briefly stated. Appellee League of Women Voters of California, a nonprofit organization, wants to enlist the “editorial support” of educational broadcasters in support of its causes. App. 8. Appellee Henry Waxman, a regular listener and viewer of educational stations, desires to hear the “editorial opinions” of educa*410tional stations. Id., at 9. Appellee Pacifica, a nonprofit educational corporation which operates five educational radio stations — the broadcasts from which reach 20 percent of the Nation’s population — wants to “broadcast its views on various important public issues, and . . . clearly label those views as being editorials broadcast on behalf of the Pacifica management.” Id., at 9-10.

In short, Pacifica wants to broadcast its views to Waxman via its radio stations; Waxman wants to listen to those views on his radio; and the League of Women Voters wants a chance to convince Pacifica to take positions its members favor in its radio broadcasts.

All of these wants could be realized but for the fact that Pacifica receives public funds to finance its broadcasts. Because the Government subsidizes its broadcasts, a federal statute prohibits Pacifica from broadcasting its views— labeled as such — via the radio stations it operates. That statute now provides:

“No noncommercial educational broadcasting station which receives a grant from the Corporation under subpart C of this part may engage in editorializing. No noncommercial educational broadcasting station may support or oppose any candidate for public office.” 47 U. S. C. §399.1

Although appellees originally challenged the validity of the entire statute, in their amended complaint they limited their attack to the prohibition against editorializing.2 In its anal*411ysis of the case, the Court assumes that the ban on political endorsements is severable from the first section and that it may be constitutional.3 In view of the fact that the major *412difference between the ban on political endorsements is based on the content of the speech, it is apparent that the entire rationale of the Court’s opinion rests on the premise that it may be permissible to predicate a statutory restriction on candidate endorsements on the difference between the content of that kind of speech and the content of other expressions of editorial opinion.

The Court does not tell us whether speech that endorses political candidates is more or less worthy of protection than other forms of editorializing, but it does iterate and reiterate the point that “the expression of editorial opinion” is a special kind of communication that “is entitled to the most exacting degree of First Amendment protection.” Ante, at 375-376; see also ante, at 380 n. 13, 381, 382, 383, and 384.4

Neither the fact that the statute regulates only one kind of speech, nor the fact that editorial opinion has traditionally been an important kind of speech, is sufficient to identify the character or the significance of the statute’s impact on speech. Three additional points are relevant. First, the statute does not prohibit Pacifica from expressing its opinion through any avenue except the radio stations for which it receives federal financial support. It eliminates the subsidized channel of communication as a forum for Pacifica itself, and thereby deprives Pacifica of an advantage it would otherwise have over other speakers, but it does not exclude Pacifica from the marketplace for ideas. Second, the statute does not curtail the expression of opinion by individual commen*413tators who participate in Pacifica’s programs. The only comment that is prohibited is a statement that Pacifica agrees or disagrees with the opinions that others may express on its programs. Third, and of greatest significance for me, the statutory restriction is completely neutral in its operation — it prohibits all editorials without any distinction being drawn concerning the subject matter or the point of view that might be expressed.5

*414II

The statute does not violate the fundamental principle that the citizen’s right to speak may not be conditioned upon the sovereign’s agreement with what the speaker intends to say.6 On the contrary, the statute was enacted in order to protect that very principle — to avoid the risk that some speakers will be rewarded or penalized for saying things that appeal to — or are offensive to — the sovereign.7 The interests the statute *415is designed to protect are interests that underlie the First Amendment itself.

In my judgment the interest in keeping the Federal Government out of the propaganda arena is of overriding importance. That interest is of special importance in the field of electronic communication, not only because that medium is so powerful and persuasive, but also because it is the one form of communication that is licensed by the Federal Government.8 When the Government already has great potential *416power over the electronic media, it is surely legitimate to enact statutory safeguards to make sure that it does not cross the threshold that separates neutral regulation from the subsidy of partisan opinion.

The Court does not question the validity of the basic interests served by §399. See ante, at 386. Instead, it suggests that the statute does not substantially serve those interests because the Public Broadcasting Act operates in many other respects to insulate local stations from governmental interference. See ante, at 388-390. In my view, that is an indication of nothing more than the strength of the governmental interest involved here — Congress enacted many safeguards because the evil to be avoided was so grave. Organs of official propaganda are antithetical to this Nation’s heritage, and Congress understandably acted with great caution in this area.9 It is no answer to say that the other statutory provisions “substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations’ ability to speak on matters of public concern.” Ante, at 390. The other safeguards protect the stations from interference with judgments that they will necessarily make in selecting programming, but those judgments are relatively amorphous. No safeguard is foolproof; and the fact that funds are dispensed according to largely “objective” criteria certainly is no guarantee. Individuals must always make judgments in allocating funds, and pressure can be exerted in subtle ways as well as through outright fund-cutoffs.

Members of Congress, not members of the Judiciary, live in the world of politics. When they conclude that there is a real danger of political considerations influencing the dispensing of this money and that this provision is necessary to insulate grantees from political pressures in addition to the other safeguards, that judgment is entitled to our respect.

*417The magnitude of the present danger that the statute is designed to avoid is admittedly a matter about which reasonable judges may disagree.10 Moreover, I would agree that the risk would be greater if other statutory safeguards were removed. It remains true, however, that Congress has the power to prevent the use of public funds to subsidize the expression of partisan points of view, or to suppress the propagation of dissenting opinions. No matter how great or how small the immediate risk may be, there surely is more than a theoretical possibility that future grantees might be influenced by the ever present tie of the political purse strings, even if those strings are never actually pulled. “[0]ne who knows that he may dissent knows also that he somehow consents when he does not dissent.” H. Arendt, Crises of the Republic 88 (1972), citing 1 A. de Tocqueville, Democracy in America 419 (1945).11

*418III

The Court describes the scope of § 399’s ban as being defined solely on the basis of the content of the suppressed speech,” ante, at 383, and analogizes this case to the regulation of speech we condemned in Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530 (1980). This description reveals how the Court manipulates labels without perceiving the critical differences behind the two cases.

In Consolidated Edison the class of speakers that was affected by New York’s prohibition consisted of regulated public utilities that had been expressing their opinion on the issue of nuclear power by means of written statements inserted in their customers’ monthly bills. Although the scope of the prohibition was phrased in general terms and applied to a selected group of speakers, it was obviously directed at spokesmen for a particular point of view. The justification for the restriction was phrased in terms of the potential offensiveness of the utilities’ messages to their audiences. It was a classic case of a viewpoint-based prohibition.

In this case, however, although the regulation applies only to a defined class of noncommercial broadcast licensees, it is common ground that these licensees represent heterogenous points of view.12 There is simply no sensible basis for considering this regulation a viewpoint restriction — or, to use the Court’s favorite phrase, to condemn it as “content-based”— because it applies equally to station owners of all shades of opinion. Moreover, the justification for the prohibition is not based on the “offensiveness” of the messages in the sense that that term was used in Consolidated Edison. Here, it is true that taxpayers might find it offensive if their tax moneys were being used to subsidize the expression of edi*419torial opinion with which they disagree, but it is the fact of the subsidy — not just the expression of the opinion — that legitimates this justification. Furthermore, and of greater importance, the principal justification for this prohibition is the overriding interest in forestalling the creation of propaganda organs for the Government.

I respectfully dissent.

As originally enacted in 1967, the statute provided:

“No noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office.” Pub. L. 90-129, Title II, §201(8), 81 Stat. 368.

Appellees’ abandonment of their attack on the ban on political endorsements merits some comment. At one level it is perplexing, given that we have stated that such political expression is at the very core of the First Amendment’s protection, see, e. g., Brown v. Hartlage, 456 U. S. 45 (1982); Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971), and given *411that Pacifica cannot escape the ban on political endorsements simply by declining to accept Government funds. Viewed solely from the perspective of the First Amendment interests at stake, therefore, it would appear that the ban on candidate endorsements is more suspect than the ban on editorializing.

In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), we expressly recognized the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ...” Id., at 270. Appellee Pacifica, which originally asserted a desire to endorse political candidates, apparently has now decided that it does not want to engage in a “wide-open” debate on public issues — it no longer asserts the right to make “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” over its radio stations which are, in fact, funded by Government officials.

In any event, if these particular litigants abandoned their attack on the seemingly more suspect political endorsement ban for tactical reasons, that fact is an indication of the strength of the same basic governmental interest which forms the foundation of the provision which they continue to challenge.

The Court actually raises the wrong severability issue. The serious question in this regard is whether the entire public funding scheme is severable from the prohibition on editorializing and political endorsements. The legislative history of the statute indicates the strength of the congressional aversion to these practices. The basic notion of providing Government subsidies to these domestic organs for the dissemination of information — “educational” stations — was viewed as extremely troubling. The line between education and indoctrination is a subtle one, and it is one Congress did not want these publicly funded stations to cross. The fact that the House Committee Report stated in passing that the provision was added out of “an abundance of caution,” merely shows that Congress deemed an abundance of caution necessary. The majority may view the congressional concerns — potential governmental censorship, giving louder voices to a privileged few station owners, and the use of taxpayer funds to subsidize expression of viewpoints with which the taxpayers may not agree — as insufficiently weighty to justify the statute, but Congress clearly thought they were weighty enough.

Thus, once again the Court embraces the obvious proposition that some speech is more worthy of protection than other speech — that the right to express editorial opinion may be worth fighting to preserve even though the right to hear less worthy speech may not — a proposition that several Members of today’s majority could only interpret “as an aberration” in Young v. American Mini Theatres, Inc,, 427 U. S. 50, 87 (1976) (dissenting opinion) (“The fact that the ‘offensive’ speech here may not address ‘important’ topics — ‘ideas of social and political significance,’ in the Court’s terminology, [427 U. S., at 61] — does not mean that it is less worthy of constitutional protection”).

Section 399’s ban on editorializing is a content-based restriction on speech, but not in the sense that the majority implies. The majority speaks of “editorial opinion” as if it were some sort of special species of opinion, limited to issues of public importance. See, e. g., ante, at 375-376. The majority confuses the typical content of editorials with the meaning of editorial itself. An editorial is, of course, a statement of the management’s opinion on any topic imaginable. The Court asserts that what the statute “forecloses is the expression of editorial opinion on ‘controversial issues of public importance.’ ” Ante, at 381. The statute is not so limited. The content which is prohibited is that the station is not permitted to state its opinion with respect to any matter. In short, it may not be an on-the-air advocate if it accepts Government funds for its broadcasts. The prohibition on editorializing is not directed at any particular message a station might wish to convey, cf. Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 96-97 (1977); see generally Whitney v. California, 274 U. S. 357, 377 (1927) (Brandéis, J., concurring). Unlike the Court, I am not troubled by the fact that the stations are allowed to make “daily announcements of the station’s program schedule or over-the-air appeals for contributions from listeners,” ante, at 383, for it is quite plain that this statute is not directed at curtailing expression of particular points of view on controversial issues; it is designed to assure to the extent possible that the station does not become a vehicle for Government propaganda.

Paradoxically, § 399 is later attacked by the majority as essentially being underinclusive because it does not prohibit “controversial” national programming that is often aired with substantial federal funding. Here the Court recognizes that the ban imposed by § 399 “is plainly not directed at the potentially controversial content of such programs,” ante, at 391, which only demonstrates that it is not directed at the substance of communication at all. Next, § 399’s ban on editorializing is attacked by the majority on overinclusive grounds — because it is content-neutral — since it prohibits a “potentially infinite variety of speech, most of which would not be related in any way to governmental affairs, political candidacies, or elections.” Ante, at 393. Hence, while earlier the majority attacked § 399 as being *414content-based, it is now attacked as being noncontent-based, applying to expressions of opinion — such as “urging improvements in a town’s parks or museums,” ibid. — which does not pose, in the Court’s view at least, a realistic danger of governmental interference because of its content.

“The general principle that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 65, 72 (1983); Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 535-536 (1980); Carey v. Brown, 447 U. S. 455, 462-463 (1980); Young v. American Mini Theatres, Inc., 427 U. S. 50, 63-65, 67-68 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U. S. 92, 95-96 (1972).” City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984).

It is ironic indeed that the majority states that it must be particularly wary in assessing § 399 “to determine whether it reflects an impermissible attempt ‘to allow a government [to] control . . . the search for political truth’ ”, ante, at 384 (citation omitted), given that the very object of § 399 is to prevent the Government from controlling the search for political truth. Indeed, the Court recognizes that when Congress decided to provide financial support to educational stations, “all concerned agreed that this step posed some risk that these traditionally independent stations might be pressured into becoming forums devoted solely to programming and views that were acceptable to the Federal Government.” Ante, at 386.

Moreover, the statute will also protect the listener’s interest in not having his tax payments used to finance the advocacy of causes he opposes. The majority gives extremely short shrift to the Government’s interest in minimizing the use of taxpayer moneys to promote private views with which the taxpayers may disagree. The Court briefly observes that the taxpayers do not have a constitutionally protected right to enjoin such expenditures and then leaps to the conclusion that given the fact the funding scheme itself is not unconstitutional, this interest cannot be used to *415support the statute at issue here. Ante, at 385, n. 16. The conclusion manifestly does not follow from the premise, and this interest is plainly legitimate and significant.

We have consistently adhered to the following guiding principles applicable to First Amendment claims in the area of broadcasting, and they bear repeating at some length:

“Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. . . .
“. . . No one has a First Amendment right to a license or to monopolize a radio frequency....
“By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
“[T]he people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. 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 . . . ideas . . . which is crucial here.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 388-390 (1969).

Cf. 22 U. S. C. § 1461 (prohibiting the International Communication Agency — successor to the United States Information Agency — from disseminating information in the United States).

The majority argues that the Government’s concededly substantial interest in ensuring that audiences of educational stations will not perceive the station to be a Government propaganda organ can be fully satisfied by requiring such stations to broadcast a disclaimer each time they editorialize stating that the editorial “does not in any way represent the views of the Federal Government. . . .” Ante, at 395. This solution would be laughable were it not so Orwellian: the answer to the fact that there is a real danger that the editorials are really Government propaganda is for the Government to require the station to tell the audience that it is not propaganda at all!

The “fairness doctrine” is no answer to the concern that Government-funded organs of mass communication will, overall, take a pro-Government slant in editorializing and thereby create a distortion in the marketplace of ideas. First, the “fairness doctrine” is itself enforced by the Government. Second, that doctrine does not guarantee other speakers access to the microphone if they disagree with editorial opinion expressed by the station on public policy issues. No other voice need be heard if the Government determines that the station’s editorial “fairly” presented the substance of “the” opposing view. Moreover, as appellees argue, editorials from an institution which the public may hold in high regard may carry added weight in the marketplace of ideas. See Brief for Appellees 15. That fact, however, magnifies the evil sought to be avoided, for the danger is that pro-Government views that are not actually shared by that institution will be parroted to curry favor with its benefactor.

That does not necessarily mean, however, “that the editorial voices of these stations will prove to be as distinctive, varied, and idiosyncratic as the various communities they represent,” ante, at 391, given the potential effects of Government funding, see supra, at 416-417, and n. 11.