Columbia Broadcasting System, Inc. v. Democratic National Committee

PETITIONER:Columbia Broadcasting System, Inc.
RESPONDENT:Democratic National Committee
LOCATION:Allegheny County District Court

DOCKET NO.: 71-863
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 412 US 94 (1973)
ARGUED: Oct 16, 1972
DECIDED: May 29, 1973

ADVOCATES:
Erwin N. Griswold –
Ernest W. Jennes – for Post-Newsweek Stations, Capital Area, Inc
Joseph A. Califano, Jr. – for Democratic National Committee
Mr. J. Roger Wollenberg – for Columbia Broadcasting System, Inc
Thomas R. Asher – for Business Executives’ Move for Vietnam Peace
Vernon L. Wilkinson – for American Broadcasting Companies, Inc

Facts of the case

Question

Audio Transcription for Oral Argument – October 16, 1972 in Columbia Broadcasting System, Inc. v. Democratic National Committee

Warren E. Burger:

— hear your argument next in 71-863, Columbia Broadcasting against the Democratic Committee and 864, 865 and 866.

Mr. Solicitor General.

Erwin N. Griswold:

May it please the Court.

This is a group of four related cases all here on writs of certiorari to review the same decision of the United States Court of Appeals for the District of Columbia Circuit.

The questions arise out of two proceedings commenced by a separate letter of communications to the Federal Communications Commission.

The first letter of complaint was sent to the Commission on January 22, 1970 by an organization known as Business Executives’ Move for Vietnam Peace customarily called BEM in these proceedings.

Now, this complaint appears at page 291 of the appendix.

BEM sought an order from the Communications Commission to compel Washington Radio Station WTOP to run spot announcements against the Vietnam War either free of charge or for a fee.

Although BEM’s specific complaint related to advertising time, its arguments were not confined to this.

The substance of the complaint appears near the end at page 296 of the appendix and I will read the first full paragraph at the top of page 296.

“For the reasons stated above, the business executive move for Vietnam Peace request that the Federal Communications Commission ordered WTOP to broadcast free of charge BEM’s one minute announcements or in the alternative that the Commission required WTOP to sell BEM airtime for broadcasting of these announcements.

The respondent in that matter Post-Newsweek Stations replied to the complaint by a letter and there were further filings by letter which appears in the appendix.

There was no hearing or any submission of evidence or arguments other than these letters.

The other proceeding before the Commission began on May 19, 1970 when the Democratic National Committee wrote to the Commission requesting a declaratory ruling which would allow it to buy time in order to comment on public issues and solicit funds.

This letter begins on page 15 of the appendix and the essence of it is on the opening page of page 15.

And there, the Democratic National Committee requested the Commission to issue a declaratory ruling that under the First Amendment of the Constitution and the Communications Act, a broadcaster may not as a general policy refuse to sell time to responsible entities such as the DNC for the solicitation of funds and for comment on public issues.

DNC indicated that it wanted the time for the broadcaster’s specific programs of varying durations and for spot announcements of varying durations.

DNC said that the primary reason for wanting this time was at it was in debt and it needed the money that television solicitation could bring in.

It did not limit its claim to advertising time.

It relied on the First Amendment but it recognize that even under the — its First Amendment claims that broadcasters could limit the use of their facilities to, and I quote their words, “responsible spokesman” and it recognize that broadcasters could adopt procedures to ensure that the presentation was in good taste.

The Commission asked for comments from the three broadcasting networks.

The National Broadcasting Company responded that it had no policy against selling time to a political party and that it would permit solicitation of funds on such a program.

It added that it had offered to sell time to DNC but was advised that the Committee did not wish to proceed with the purchase.

Both the American Broadcasting Companies and the Columbia Broadcasting System responded saying in substance that they were bound to comply with the Fairness Doctrine established by the Commission and upheld by this Court in the Red Lion case in 395 U.S.

But that it was their policy not to accept sponsored discussions of political or controversial issues or to allow solicitation funds.

The position of CBS may be summarized by referring to page 51 of the appendix, about two inches from the top of the text.

In adopting this policy we concluded that we could not provide coverage of significant issues with fairness and balance if partisans with strong financial resources could preempt our facilities to present their viewpoints on issues they select.

A policy of selling time to partisans within our view necessarily distort the matter in which issues were presented to the listening and viewing public.

CBS has concluded that as a licensee and a medium with a finite amount of time to provide news, information and entertainment, we best serve the public by presenting issues and view points within a balance programed schedule utilizing news worthiness as a sole criteria.

On August 5, 1970 the Commission denied BEM’s complaint.

Erwin N. Griswold:

Commissioner Cox made a concurring statement and Commissioner Johnson dissented.

A week later on August 12th, the Commission issued a memorandum opinion and order denying the request of DNC for a declaratory ruling.

Again, Commissioner Cox concurred and Commissioner Johnson dissented.

The Commission in its opinions did not really focus on advertising time except in response to Commissioner Johnson’s dissent in the DNC case.

And even there, the Commission appears to be talking about both programming and advertising time similarly in the BEM opinion.

The Commission does not highlight advertising time though that was all that was involved in BEM’s complain.

Now, following these decisions, BEM and DNC filed separate appeals in the Court of Appeals.

The Federal Communications Commission and the United States were the respondents.

And the two cases were consolidated there, Post-Newsweek Stations, American Broadcasting Companies, and Columbia Broadcasting System intervened.

The Court of Appeals reversed the decision of the Commission in an opinion by Judge Wright concurred in by Judge Robinson and Judge McGowan filed a dissenting opinion.

The four cases now here were filed to review this decision according to the varying and risk of the seven parties involved.

A Post-Newsweek Stations filed a petition with BEM as respondent.

Columbia Broadcasting System and American Broadcasting Companies filed a petition, separate petitions with DNC as respondent.

And the United States and the Federal Communications Commission filed petitions against both complainants, BEM and DNC.

In many respects, the positions of the United States and the Commission on the one hand are similar to those of the broadcasters, on the other.

In particular, speaking for the Commission and the United States, however, I should point out this possible difference.

In particular, I am interested in maintaining the preposition that this is an area in which the Commission is properly concerned.

And were it has authority to act, if it should determine that affirmative action on its part is appropriate.

I should let the broadcaster speak for themselves, but they would, I gather from their briefs, preferred to have it establish that the Commission cannot act at all in this area consistently with their First Amendment rights.

These differences does not seem to me to be essential in the present case, as long as it can be determined that the Commission acted properly when it decided not to act in these cases.

Now, there’s one more factual situation which I should put before the Court.

While this case was pending before the Court of Appeals on June 19, 1971, the Commission published a notice in the Federal Register initiating a broad study into the efficacy of the Fairness Doctrine.

The Commissions specifically under took the study, “In the light of current demands for access to the broadcast media to consider issues of public concern.”

The Commission noted, however, that it could not abandon the Fairness Doctrine since that is ratified by Act of Congress or treat broadcasters as common carriers.

What the Commission said — sought it said, “Was whether the policies it had developed are the most effective means of fostering uninhibited robust wide open debate on public issues.”

When, in January and February of this year there was a period when the mandate of the Court of Appeals in this case was not stayed, the Commission published a further notice soliciting comments on the procedures and guidelines necessary to carry out the mandate of the Court of Appeals.

This letter notice was withdrawn.

When this Court granted the certiorari and stayed the mandate of the Court of Appeals.

But the Commission has continued its overall inquiry into the Fairness Doctrine and its operation, and has requested comments on what policies, if any, should be adopted with respect to access to the broadcast media.

It has confined its inquiry to the non-constitutional aspects of access because the First Amendment issue was pending before this Court.

Erwin N. Griswold:

It added that its final decision maybe delayed and made — made in light of the Supreme Court’s decision.

I am advised that this inquiry is proceeding actively and that the problems are under current consideration by the Commission.

Warren E. Burger:

Are these taking the form of hearings —

Erwin N. Griswold:

Yes sir, I understand sir.

Warren E. Burger:

— in the — in the rule making tradition?

Erwin N. Griswold:

Both — both hearings and written submissions.

Before going further, it’s relevant to observe that the Commission has not here ordered anyone to do anything.What it has done is simply to stay its hand.

The ultimate question then is whether there is something in the First Amendment which requires the Commission to order broadcasters to accept editorial advertising regardless of their compliance otherwise with the Fairness Doctrine.

Obviously, there is nothing literally in the First Amendment which leads to this result.

It can be found only by a rather broad construction of that Amendment, a construction incidentally which if applied there’s a printed press, namely that they must accept advertising offered to — to them, at least if paid for, would surely be regarded by them as an abridgment of the freedom of the press contrary to the explicit provisions —

Warren E. Burger:

Would you suggest —

Erwin N. Griswold:

— of the First Amendment.

Warren E. Burger:

Would you suggest, Mr. Solicitor General that if the Federal Communications Commission had this obligation that’s being sought that it would mean that the Commission would also have to step in and put some limits on the amount of advertising, time which could be used and at what hours?

Erwin N. Griswold:

Yes, Mr. Chief Justice.

That was clearly recognized in the opinion of the Court of Appeals which did not decide that either of these complainants was entitled to have its advertising broadcast.

It simply decided that the Commission must establish means for working out who could broadcast, and at what times, and if there were more people applying than there was time for, how they should be selected specifically referred to it as an abridgable right to speak and the abridgable element in it rose out of the fact that there is inherently a limited amount of time available.

So, as I will suggest later on, this would put the Commission into deep entanglement with the operation of the — the actual operation and the editorial judgment of the stations.

Now, Commissioner Johnson and his dissenting opinion intimated, perhaps I could use a stronger word than that, that the way to deal with this was to abolish the Fairness Doctrine and do it on a first-come-first-serve basis and when the time was up established on some basis, then nobody else could get in.

That we think is something which it is very hard to find in the Constitution and something which is very much an administrative matter which it is in the province of Congress through its delegatee, the Commission to determine.

For that reason, I say that constitutionally I think that this case involves more of the separation of powers than it does of the First Amendment.

Of course, we fully agree as the Court said in Red Lion that the First Amendment is not irrelevant.

The underlying problem here is undoubtably a subtle one.

When dealing with a medium to which there is inherently limited access, what is the best way to protect the public’s right to hear, and see, and learn?

Basically, in the present state of knowledge and in the absence of any specifically applicable provision in the First Amendment or elsewhere in the Constitution, this should be, I submit, a problem to be worked out by Congress and without the rigidity which would result from an extension of the First Amendment well beyond its language.

Congress has exercised its power in the Communications Act and has delegated oversight and rule-making to the Communications Commission which has been actively, and effectively engaged, and the complicated, and essentially experimental task for many years.

Potter Stewart:

The First — the First Amendment isn’t applicable at all, is it?

Unless and until broadcasters can be equated with the Government, state or federal.

Erwin N. Griswold:

Well, certainly that’s —

Potter Stewart:

Unless I’m missing something.

Erwin N. Griswold:

— true Mr. Justice, literally.

Erwin N. Griswold:

In the Red Lion case, the argument was made on behalf of the broadcasters that you can’t have a Fairness Doctrine.

Potter Stewart:

Well, that’s right.

Because they were claiming their right, they were equating themselves as to newspapers.

And they were saying that the Commission had no power to exercise that kind of control over them —

Erwin N. Griswold:

I think the —

Potter Stewart:

— that’s exactly the opposite side of the coin.

Erwin N. Griswold:

I think Mr. Justice that you get into an argument about the First Amendment when you begin to talk about First Amendment values.

Now, I do not — I do not (Inaudible) First Amendment values.

I think they are very important.

But the contention is made that in order to protect First Amendment values you must give these complainants an opportunity to express their views over this medium which is — which so enormously multiplies their voice, but I agree with you literally that no one is preventing the — the complainants from exercising either their freedom to speak or their freedom of the press —

Potter Stewart:

Well, maybe somebody else is, but until or unless you can show that it’s Government that’s doing it, the First Amendment isn’t involved, is it?

Erwin N. Griswold:

Unless the Government is under some sort of a — a duty to help them to protect their First Amendment value.

Now —

Potter Stewart:

In other words when a newspaper, turns down an ad and says, “We’re not going to run this ad.”

There cannot possibly be any claim can there, that that’s a violation of the advertiser’s First Amendment right because Government is not preventing them, it’s the newspaper that’s asserting its own right under the Constitution.

Erwin N. Griswold:

Well, I would have supposed that was true Mr. Justice, but Congress on February 7, passed a statute giving access to political candidates to the radio, and television, and included in it to the extent that any person sells space in any newspaper or magazine to a legally qualified candidate for federal elective office then they must sell space to other candidates.

William H. Rehnquist:

Well the constitutionality that (Voice Overlap) —

Erwin N. Griswold:

That is not — that is not here but I — I — that’s one reason I’m a little hesitant —

Potter Stewart:

Right.

That’s —

Erwin N. Griswold:

— about making what I think —

Potter Stewart:

I see your position —

Erwin N. Griswold:

— I would otherwise have made as my answer.

I think it had always previously been understood that the press was under no obligation whatever to print anything it didn’t want to print.

Potter Stewart:

Well in any event, it might getting — whether or not that’s been understood you would agree, I — I would suppose unless I’m all off on the wrong track here that the First Amendment is inapplicable unless and until you can equate broadcasters with Government, state or federal.

Now, that was done.

A company town was equated with Government in Marsh and a shopping area was equated with the Government in another case but until and unless that step can be taken, the First Amendment is simply not implicated, is it?

Erwin N. Griswold:

Well, I — I would be happy to accept that view.

There are expressions in some of the opinions.

At least, for purposes of this case, I would be happy to accept that view.

Erwin N. Griswold:

There are expressions in some of the opinions about First Amendment values which seem to indicate that when there is Government participation there is an — a brooding on the presence of the First Amendment in the sky which must be taken into account.

As the Court said in the Red Lion case, if experience with the administration of these doctrines indicates that they have a net effect of reducing rather than enhancing the volume and quality of coverage, there will be time enough to consider the constitutional implications, and I think that is what is making me find difficulty in answering your question.

If it does appear and experience that this does really prevent serious difficulties in the public’s opportunity to learn about political candidate then I suspect that there will be those who will raise constitutional arguments which will have to be answered.

But the use of the word quality of coverage in the passage seems particularly relevant here under the decision below the broadcaster loses control over the quality of the paid advertisements which he must accept.

The present state of experience point strongly to the conclusion that the public is better served by giving scope to the journalistic judgment of the broadcaster’s subject to the continued constraint of the Fairness Doctrine.

“If real experience to the contrary develops there will be time enough,” as the Court said to reconsider the constitutional implications.

As I have indicated the Commission has the matter now under active reconsideration in the light of experience and of the claims which have been made, the Commission as acting pursuant to powers expressly assigned to it by Congress and the exercise of its commerce power, which — and other powers which has set up a system of broadcasting in this country under private ownership and control subject to regulation by the Commission.

Now, the Congress has expressly provided in Section 38 of the Communications Act that persons engaged in broadcasting shall not be a common carrier.Congress has also provided equal time for political candidates and more recently for a right access for political candidates.

The Congress has further provided that licensees shall hold their licenses for three years.

It’s charge the Commission to use the standard of the public interest in renewing licenses and it has provided in Section 3 (r) as this Court quoted in the Red Lion opinion, a mandate to the Commission from time to time as public convenience, interest or necessity requires to promulgate such rules and regulations, and prescribe such restrictions, and conditions as maybe necessary to carryout the provisions of this chapter.

In carrying out this charge, the Commission has developed the reply to attack rule and the Fairness Doctrine, both of which work upheld by this Court in Red Lion.

John Paul Stevens:

Mr. Solicitor General, do you understand that broadcaster’s position to rest considerably on the existence of the Fairness Doctrine?

Absent the Fairness Doctrine if I take their position might be considerably different?

Erwin N. Griswold:

I think their position might be different.

I think I would rather have them speak for themselves.

I’m not at all sure though that if this Court had held that the Fairness Doctrine was invalid as a — an undue interference in violation of the First Amendment rights of the broadcasters that it wouldn’t almost be a fortiorari case to say that — that they would have no rights here.

John Paul Stevens:

Well, I’ll put it the — I’ll put it this way then.

Does the Commission’s position rest all on the fact that they have promulgated are enforcing the Fairness Doctrine that — that this — that — that their reluctance to order — order stations to receive these advertisements rest considerably on the — on the —

Erwin N. Griswold:

No, Mr. Justice.

I don’t think it’s that they are reluctant to.

I think it is that they feel it is not necessary and that the “First Amendment value” involved in the picture is adequately taken care of by the Fairness Act.

John Paul Stevens:

The Commission’s position isn’t then at the — if — if the Committee’s position were upheld that the Fairness Doctrine would be much more difficult to afford.

Erwin N. Griswold:

What it is, I think it is to a very considerable extent.

John Paul Stevens:

Well, that’s —

Erwin N. Griswold:

I think the — I think that as Commissioner Johnson said in his dissenting opinion, I think it pretty much involves the abolition of the Fairness Doctrine.

John Paul Stevens:

So that — so that the existence of the Fairness Doctrine is a — is a very substantial part of the Commission?

Erwin N. Griswold:

It is certainly a very large element in the overall picture.

Now, I don’t understand that Red Lion was a constitutional case in the sense that it decided that the Fairness Doctrine was required by the First Amendment.

On the contrary it was, as I see it, an administrative law case holding that the Commission under the authority granted to it by Congress and the power to, just have the power to establish the Fairness Doctrine and Congress had the power to ratify it in 1959.

Potter Stewart:

Well, in that extent it was a constitutional case because the plaintiff was (Voice Overlap) —

Erwin N. Griswold:

And as far as —

Potter Stewart:

(Voice overlap) — didn’t have the power to do it.

Erwin N. Griswold:

As far as the Constitution was involved that there was nothing in the First Amendment —

Potter Stewart:

Right.

Erwin N. Griswold:

— which made the Fairness Doctrine invalid.

Potter Stewart:

Right.

Erwin N. Griswold:

That seems to me it was a — it was a —

Potter Stewart:

That while it was a limitation upon the right of the broadcasters it did not —

Erwin N. Griswold:

Whether —

Potter Stewart:

— violate their First Amendment rights.

Erwin N. Griswold:

— whether Congress was prevented from treating this as an administrative doctrine because of the First Amendment.

There is no suggestion that the stations involved in this case do not comply with the Fairness Doctrine.

They do present discussions of controversial and political issues.

The question is whether they must nevertheless takes spot announcements and perhaps put on programs on public interest — issues from anyone who wants to pay for the time.

And then very likely pursuant to the Fairness Doctrine have to allow free time to those who want to present the other side, if no one can be found for the presentation of the other point of view.

It’s hard to think of anything which more effectively destroys the freedom and control of the broadcasters often called the electronic press.

It’s likewise hard to think that the public will be well-served by a system which makes access to the airways on controversial issues, depend in material extent on who has the money to pay for it.

And perhaps on who has the most money as the price is bid up.

As Judge McGowan said in the court below, “That approach does not seem to me to be a promising one in terms of the public’s right to know.”

And he added, “It is hardly the part of wisdom to scrap our present system of private broadcasting for a system in which money alone determines what items are to be aired and in what format.”

Are these not issues of the sort that Congress should determine with the aid of the agency in the light of experience and without premature constitutional restraint?

The Fairness Doctrine has been developing for more than 40 years.

This has been done under the watchful eye of this Court and with recognition, as this Court said in the Pottsville Broadcasting case, that the administrative process should possessed sufficient flexibility to adjust itself to the rapidly fluctuating factors, character — characteristic of the evolution of broadcasting.

Through the Fairness Doctrine as it has developed, there is a clear duty on the broadcaster, but he is still a private businessman as a part of a deliberately adopted system of private broadcasting, and he is not only free but obligated to exercise his journalistic discretion.

They considered and experienced judgment of the Commission that this is not a situation in which it should take affirmative action, it should be upheld and accordingly the judgment below should be reversed.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Jennes.

Ernest W. Jennes:

Mr. Chief Justice and may it please the Court.

Mr. Wollenberg and I have divided the issues we will argue.

I will briefly supplement the Solicitor General’s description of how the present system works and assuming, but not conceding state action.

Ernest W. Jennes:

We’ll treat the First Amendment issues.

Mr. Wollenberg will argue the state action issue which Mr. Justice Stewart has raised, the commercial discrimination equal protection issue and the question of statutory construction.

It would perhaps be helpful if I review briefly some pertinent aspects of broadcasting and their relationship to First Amendment interest.

DNC will have this Court, view broadcasting as a virtually monolithic institution in which there are three network presidents who decide what the American people will hear, and when, and how.

But this is not the way it works.

As the networks agreed to show, this is a caricature of how the networks handle news and information.

But more important, some 7000 individual broadcasters are entrusted with the responsibility of fairly informing the public.

And these independent stations and the many individual and often partisan voices that speak through these 7000 stations provide diverse ideas and opinions to the public.

Warren E. Burger:

Does the failure of a licensee to observe the Fairness Doctrine, give a balance (inaudible) sometimes become an issue and they come up for a renewal of the license?

Ernest W. Jennes:

It has indeed, and the Commission’s refusal to renew a license on that ground was recently sustained by the — by the Court of Appeals.

Fairness Doctrine complaints are — have the present Commission rules on them and the broadcasters are very aware of the problem.

Warren E. Burger:

And you’re suggesting that’s a sufficient control over balancing as against unbalanced programs?

Ernest W. Jennes:

I am suggesting that there is no evidence.

I will show — I believe that there is no evidence that the system as it exist has been abused and accordingly that — assuming our First Amendment question that the Congress and the Commission have not exercise the — a — a choice which serves the interest of the First Amendment through the Fairness Doctrine.

Public exposure to conflicting views in partisan voices is advanced by the Fairness Doctrine and the related requirements of the Communications Act.

Each station is responsible for determining from the public on a continuing basis what it — the public and representative groups, and organizations regard as public issues, needs, and interests.

Now, there’s discretion to present these viewpoints in a variety of ways, including hard news, commentaries, special events’ coverage, documentaries and the like.

But very importantly for these cases where access is being argued, stations must include under the Commission’s Fairness Doctrine as part of a mix representative partisan spokesman on controversial issues.

Now, subject to these trusteeship obligations, each broadcaster exercises a journalistic function in selecting and balancing subjects, formats and speakers for the very purpose of assuring that a significant variety of important issues and competing viewpoints is affectively presented.

Some sell time or commercials to partisans.

Others do not sell time but provide access to partisan views without charge in their normal programing.

How this system works to serve First Amendment purposes is well-demonstrated in the BEM case itself.

The uncontroverted record is that the various aspects of the Vietnam issue were repeatedly covered in WTOP’s news information and public affairs programs.

Moreover, numerous partisan’s spokesmen had access, in fact, to WTOP without charge to express their varying views and varying ways.

Every viewpoint in the 14 different samples of BEM commercials for which BEM sought by time on WTOP was in fact expressed over that station.

And furthermore, several stations in the area was different policies carried BEM’s commercials.

It would thus, I submit, be incredible to suggest that WTOP deprive the public of access to the ideas which were advocated by BEM.

Now, this Court has repeatedly stated that the central purpose of the First Amendment is to preserve a marketplace of ideas for the American people and it has long emphasized that the First Amendment must work differently in different context.

And when this Court defined the First Amendment interest in broadcasting in Red Lion, it was the public’s right to receive suitable access to social, political, esthetic, moral and other ideas and experiences on which the Court focused.

In Red Lion, it was the public’s right to know not the individual’s right to speak which control them.

Ernest W. Jennes:

Because of broadcasting’s limited capacity, Congress and the Commission may constitutionally subordinate private claims to the paramount public interest, whether those claims are advanced by broadcasters themselves as in Red Lion or in behalf of individuals who want to speak their views.

There are simply more individuals who want to broadcast than there are frequencies to — to accommodate them.

There are simply more subjects to report on and treat, than time will permit.There must be a responsible choice.

Byron R. White:

Weren’t their frequencies still not (Inaudible)

Ernest W. Jennes:

There are in some places in the country.

In — in UHF television, there are many areas in the country where there are no frequencies available and in — in radio, the situation varies from community to community, area to area.

Byron R. White:

Would you thing that predicate is generally — still true and have to warrant the Commission, regulation might —

Ernest W. Jennes:

Oh, Mr. Justice White, I’m — I’m assuming for the — you mean in the Fairness Doctrine?

I — I assume that — that the — the issue of the constitutionality of the Fairness Doctrine was disposed of in Red Lion, and I’m assuming further for purposes of my argument —

Byron R. White:

I know, but —

Ernest W. Jennes:

— that there is state action.

Byron R. White:

— you’re still asserting here that there is a limited — limited capacity in the television medium.

Ernest W. Jennes:

Well, I’m — I’m asserting that — that an individual radio or television station has a limited amount of time and responsible choice has to be made as to what is going to be covering in that time.

Byron R. White:

You’re also — you’re also assuming that there is a limited spectrum of frequencies to be licensed by the Federal Government, I presume —

Ernest W. Jennes:

That is correct.

Byron R. White:

— that’s in the — that’s been the rationale since 1927 in the Radio Act and that’s been the rationale of every decision on the subject in this Court, isn’t it?

Ernest W. Jennes:

That is correct and that’s — that’s precisely why the Act has placed the responsibility on the individual broadcaster as a trustee.

Byron R. White:

Right.

Ernest W. Jennes:

And that — that term has been — has been repeated, and repeated.

The obligation of the broadcaster as a trustee, subject to the Fairness Doctrine and subject to other requirements to inform the public fairly about controversial issues of public importance.

Warren E. Burger:

I understood Mr. Justice White’s question going to unclaimed the potential stations, no other any or very many unclaimed in large market areas?

Ernest W. Jennes:

They’re not very many in large market areas, Mr. Chief Justice.And I take it that the — that the holding of the court below and that the position of the respondents in this case would not vary from city to city or state to state.

What they’re claiming is that — that broadcasters may not — as a matter of policy refuse to sell time for editorial commercials.

Now, the respondents, I — I suggest that — that to the extent there is a constitutional requirement, that that requirement has been served by the system as it operate.

Now, the respondents would have this Court create a new constitutional right without showing any abuse requiring vindication.

Now, I think it’s very important to emphasize that their arguments depend on factual propositions of dubious validity at best, advanced in their briefs for the first time, never submitted to the Commission that the — that the Fairness Doctrine does not work adequately, that their proposal is fair and efficient and would not have significant adverse effects.

I would suggest that the very heavy burden on those would establish new constitutional principles, is not met by selected examples in appellate briefs.

On the other hand, the constitutional right urged by BEM and DNC would post very serious practical and legal problems, and would deserve First Amendment interest by increasing the influence of the wealthy and the powerful, by resolving any distortion, and by impairing the broadcasters capacity to provide balance coverage of issues, and by increasing government control over the flow of information.

Such a new constitutional right would greatly advantage the size of the (Inaudible) in determining what is broadcast.

There’s a tendency to think of the implications of these cases in terms of organizations like BEM or the Navy League or the ADA or the John Birch Society.

Ernest W. Jennes:

But this new right, if it were established, would require our broadcasters to permit a host of commercial advertisers who spend in the neighborhood of a billion and a half dollars a year on the networks and another billion dollars a year in national television advertising to use their television and radio commercials for the expression of views on controversial issues that serve their business interest and their other interests rather than to sell their products and services.

Now, it is apparently a common policy of broadcasters not to permit advertisers to do this now.

The court below and all of the parties recognize that it would not serve the public interest in free speech that the expression of views and editorial advertising time were dominated by those who can most afford to pay or if a newly asserted constitutional right resulted in imbalanced treatment of public issues.

And the lower court fell back as the Solicitor General said on the Fairness Doctrine for an answer, but this would exacerbate the problem.

If a broadcaster balance what Judge Wright described as a one-sided flood of editorial advertisements by presenting contrary view point’s, he would have to divert kind from or ignore other subjects which warranted attention.

The result, the agenda of news and information presented to the American people would be determined by the purchasers of editorial advertisements.

Potter Stewart:

Because of the Cullman rule?

Ernest W. Jennes:

Not — that is because of the necessity of the Fairness Doctrine itself.

Potter Stewart:

And the common rule exacerbates —

Ernest W. Jennes:

It would be — exactly, exactly.

What I’m suggesting is that a — that a heavy flight of commercials would create an — an obligation to respond and then hurry where one is left under Cullman.

Potter Stewart:

Right.

Ernest W. Jennes:

Moreover, increasing involvement of the Government cannot be avoided if editorial advertising is made compulsive.

Innumerable questions would arise as to the permissible subject of advertisements, the content of particular ads and a like.

Warren E. Burger:

I think your time is up, Mr. Jennes.

Ernest W. Jennes:

Let me conclude by saying that the threat of intimate direct and pervasive government regulation to broadcast content — of content would be serious.

And there’s literally nothing before this Court to require to say that these hazards must be sanctioned and irreversibly because of a constitutional command.

Warren E. Burger:

Mr. Wollenberg.

Mr. J. Roger Wollenberg:

Mr. Chief Justice and may it please the Court.

I appear on behalf of petitioner, Columbia Broadcasting System.

I — I think that the able arguments which have proceeded have made clear, I hope, what is before this Court and what is not before this Court.

As we see it, there is not here today any question of the Commission’s power to take affirmative action in the access area if it should on appropriate basis determined that such actions was necessary.

What we have here as the Solicitor General has made clear, a decision of the Court of Appeals which through the enunciation of a new constitutional doctrine has in effect resulted in a substitution of the judgment of the Court of Appeals for that of the agency on the erroneous premise that the First Amendment requires the Government to compel broadcasters to provide paid advertising on demand.

Now, I should like to make clear that contrary to the impression that the solicitor general may have had the broadcast petitioners in this case are not here asking for a ruling by this Court that would limit the powers of the Commission.

What we are asking for here is a reversal of the decision below, a decision which creates a constitutional straightjacket that binds the Commission and indeed the Congress for all time.

William H. Rehnquist:

You don’t then content that your — your client’s constitutional rights were violated by the decision below.

Mr. J. Roger Wollenberg:

No.

We have not made that contention Your Honor.

The Solicitor General quoted Judge McGowan and I think what —

Potter Stewart:

That — that contention if — that contention would be similar to the contention that was made by the broadcasters in Red Lion, and it’s not made here.

Mr. J. Roger Wollenberg:

And let me say Your Honor that I associate myself with Mr. Jennes’ statement that we are — we accept Red Lion —

Potter Stewart:

Right.

Mr. J. Roger Wollenberg:

— that were not here undercutting Red Lion and that to the contrary, we suggest that the trustee fairness scheme created by Congress and the Commission and upheld in Red Lion would be diminished, hampered and frustrated by the holding of the court below.

John Paul Stevens:

Well, Mr. Wollenberg I take from the — the responses of the broadcasters that they relied on the Fairness Doctrine to some extent at least as a justification for the refusal of — of selling advertisements.

Mr. J. Roger Wollenberg:

I don’t know Your Honor whether I would use the word “justification” but I would say this, that the broadcasters having been told very clearly in the pronouncements of the Commission and the pronouncements of this Court in Red Lion, that they have a responsibility to achieve fairness.

And that this is a responsibility not only to present the varying sides of issues to present the individual views of representatives spokesman of issues and — but not only those two but also to affirmatively see that they cover the important public issues, that with those very substantial responsibilities which as the Chief Justice has pointed out may lead to a denial of license, if you do not carried them out.

With those very substantial or responsibilities, some broadcasters, not all, some broadcasters including Columbia Broadcasting System have included that the best way to effectuate and implement, and carry out those responsibilities is not as Judge McGowan said, to scrap the existing mechanism for a system in which money alone determines what issues are to be aired.

In other words, Columbia Broadcasting System over a long period of years has concluded and believes from its experience that it is not the best way to cover issues to simply sell time to those who desire to and are able to purchase time.

But this does not mean that everything is filtered through a CBS point of view or that the individual views of representative spokesman are not given.

They are given daily in — in news broadcasts, regularly on news interview programs and as occasion warrants, at extensively and directly, for example, in the very extensive coverage of the national political conventions.

So it’s not a matter of declining to what people speak through their own mouths.

It is a matter of attempting to plan, to organize so as to achieve these heavy responsibilities of covering issues providing information for the public, providing balance, providing the various sides.

John Paul Stevens:

Well, Mr. Wollenberg, what — what is your — what is your view?

Is there a First Amendment problem here or not in the sense of there being or not being some state action or how do we differ there?

Mr. J. Roger Wollenberg:

It is our position which I hope to get into —

John Paul Stevens:

Well, I didn’t mean —

Mr. J. Roger Wollenberg:

— a little greater length after the lunch and recess, but it is our position that there is not state action here and that their not being state action that — that is an alternative ground for reversal of the judgment below because the First Amendment question does not arise unless there is state action.

It is our view that for the reasons that we set forth at some length in our opening brief, that even prior to the last term that the standards properly applied for state action before governmental intervention or governmental involvement rises to the constitutional place of state action, there must be a compulsion, an inducement, a participation.

Those are catchwords but they — they summarize the areas.We made those points in our opening brief.

In our reply brief we pointed out that we think that the attenuated reliance of the court below on some general language in Burton and Wilmington, and the Public Utilities Commission against Pollak, but that reliance was misplaced in light of the decision of this Court at the last term in Moose Lodge.

Potter Stewart:

Mr. Wollenberg during lunch maybe you can tend to the answer this question.

Do you think there’s any difference in the test of state action when you’re dealing with the Equal Protection Clause of Fourteenth Amendment as in Burton from the test applicable when you’re dealing with the First Amendment as in Marsh or the Shopping Center case or should the test be identical constitutionally?

Warren E. Burger:

I think we’ll let you respond to that right after we lunch.

Mr. Wollenberg, you may proceed.

Mr. J. Roger Wollenberg:

Before attempting a response to the open book examination question that was left with me at the recess and completing my — my discussion with state action.

I would like to emphasize again, there must not be any misunderstanding on what we are not contending.

We are not contending on the basis of our state action argument that the lack of state action, as we see it, takes this area outside of the power of the Federal Communications Commission.

We are arguing that there is not the state action that gives rise to a constitutional right on the — in the respondents to demand a system which Judge McGowan has correctly described as a constitutional straightjacket.

Now, with respect to Mr. Justice Stewart’s question, let me say first that I don’t think that any possible shades of difference in standards would be controlling or indeed material here because I think by any standards that there is a lack of state action, but on this specific question of the Equal Protection Clause, state action standard versus the First Amendment standard.

I think that if there is a difference, it isn’t the difference between the two amendments, but it is the difference perhaps between the Equal Protection Clause as applied in racial discrimination kind of cases and other cases whether they’d be a First Amendment or equal protection.

Mr. J. Roger Wollenberg:

I think that the long history of the Equal Protection Clause and the enactment of the Fourteenth Amendment to give force to the civil rights cases, civil rights acts in case they should be declared unconstitutional that the adoption of the Fourteenth Amendment was designed, not only to end historic policies of state action to enforcement segregation and enforce different treatment onto the blacks.

But it was also designed to assure that no private action under the color of state law should achieve that effect.

So, I think that there is a special consideration that applies in the racial cases.

Now, I said before the lunch and recess that we think that the cases before Moose Lodge established the correctness of our position that Moose Lodge merely reaffirms it.

We have briefed the question rather extensively in our opening brief and in our reply brief, and because of limitations of time, I should like simply to say why in this particular situation we don’t think you have any kind of government participation encouragement, compulsion or approval.

A close reading of the Commission’s very thoughtful and articulate opinion in these cases makes clear that the Commission was not saying that it didn’t want broadcasters to sell time for controversial issues, to sell advertising time.

It wasn’t saying that it approved broadcasters who do that and would be more likely to renew their licenses in those who sold such time.

The Commission wasn’t telling broadcasters what to do.

What the Commission was saying, and I think very correctly was, that it would be inappropriate for it to issue an order of compulsion to broadcasters because it would interfere with their ability to carry forth their trustee responsibility of achieving a Fairness Doctrine in their own way, and it might indeed impede it.

And those who wished to sell advertising time may do so but they still have the responsibility of carrying out the Fairness Doctrine and those who wished not to may do so, but they still have the responsibility of carrying out the Fairness Doctrine including that portion of the Fairness Doctrine which requires that partisan views be given expression and that — and not be filtered out in the presentation process.

William H. Rehnquist:

Mr. Wollenberg, don’t you at least have this difference between Lloyd and Moose Lodge on the one hand, and the situation of the broadcaster on the other that the — the license which he holds is really a — a form of profit.

It’s made possible only by governmental exclusion of — of other potential broadcasters?

Whereas, it is my recollection of both Lloyd and Moose was that — that the private individuals were dealing with their own private property.

Mr. J. Roger Wollenberg:

Well, of course, in Moose Lodge at least one dissent argued that the number of liquor licenses were limited in — in the State.

But it is perfectly true that you have a licensees here and that the broadcasters can only broadcast if they hold licenses, but it is also true that the Congressional and Commission regime that was upheld in Red Lion answered that scarcity and limited number of licensees by placing on the broadcasters a heavy kind of responsibility.

The newspapers for example, do not have and instead Fairness Doctrine responsibility, and that implementation of the public’s right to know which is the First Amendment interest that was stressed in Red Lion, not the right of an individual to get on the mic, because there are a limited number of hours, limited number days, limited number of stations, but the right of the public to know and the — this Court unanimously in Red Lion held that the regime adopted by Congress and the Commission of — of assuring the public’s right to know would be satisfied or was illegitimate on a reasonable scheme.

What we’re arguing here is that the decision below, as the Commission said by compelling a particular type of activity would frustrate and interfere with that responsibility.

And turning now to one of the principal contentions of the respondents, and the holding of the court below, there is some kind of a constitutional invidious discrimination involved in the practice that the Commission has declined to prohibit.

And whether you call this a First Amendment violation or an equal protection violation, the contention is that if you sell time for a commercial advertisement — advertising time, you cannot refuse to the sale of time for controversial speech.

Now, we suggest that that is not a valid contention.

We suggest that commercial matter and controversial issue matter are treated very differently under the Act because of the affirmative responsibility under the Fairness Doctrine of Red Lion as I’ve mentioned to cover controversial issues, so that the broadcaster who won’t let the controversial issue into his advertising time, also keeps the — the — a commercial broadcaster out of his program time.

The Commission will not allow broadcasters to have a program like the commercials.So that what actually happens is that under the scheme of the act and the Commission’s rules, a controversial speech is given a preferred position as against commercials speech.

Now, this doesn’t mean that any individual has the right to come in and demand that he can put on a commercial, no individual has a right to demand that he come and — and be given time on the air.

In both cases, the broadcaster exercises discretion.

The cases which have been relied upon by the respondents in the court below, we submit, are not controlling.

There are lower court cases dealing with busses where you have no system of information other than the advertising space and a state, a supporter or state partially supported newspapers.

And then the newspaper cases there’s a conflict with the Evans and Richter’s case in the Third Circuit which says, there’s no right of access to a journalistic media even though it’s supported by the state.

We think that those cases are not in point here, what is in point here is that there’s a reasonable classification, if you will, a reasonable determination was made by the — been made by the broadcasters in which the agency charge with expertise in the field has found to be not unreasonable, if the broadcaster wants to do it that way as a message of achieving his fairness obligations.

One final point Mr. Jennes emphasized at some of the — the dangers of an unrestricted right of purchase of time.

And he pointed out that that isn’t just the organizations that are registered in getting on, but we also have commercial advertisers.

Mr. J. Roger Wollenberg:

Now, there’s about a billion and a half dollars of network, television, commercial advertising sales during the course of the year and if — if you say that there’s a constitutional right to put into your advertisements, controversial issue matter then presumably that billion and half dollars of commercial advertising can include as much as any given commercial advertiser desires to do.

Most broadcasters today make an effort not to include in their commercial advertising such materials.

Now you’ve been pointed two examples of cases where broadcasters have not complied without or cases where the line has been — has been crossed, and what appear to be a product commercial swapped over into an advocacy of a position.

And in that case the Fairness Doctrine applies.

But most broadcasters today make the effort to make that distinction.

I think it’s a very important distinction because I think that the — in agenda would indeed as the Commission said the — as set by the affluent if we set up a constitutional principle of this kind, and I don’t think that the any amount of balancing by the broadcaster could unskew what have been skewed in that fashion.

Warren E. Burger:

Thank you, Mr. Wollenberg.

Mr. Califano.

Joseph A. Califano, Jr.:

Mr. Chief Justice, may it please the Court.

I will deal with the DNC case and my colleague Mr. Asher will deal with the BEM case.

As far as the Democratic National Committee is concerned, the issue before this Court, the central question, the same central question we began dealing with — with the networks in March — in April of 1970 and with the FCC in the late spring of that year.

It is, are the public air ways which are the most powerful and forceful means of communication in our democratic society the greatest democracy in the world are these airways to be used to promote the sale of soap, deodorants, mouth washers, and brassieres, and not to promote the exchange of ideas.

And the legal issue is whether Federal Communications Commission consisted with the Communications Act and the First Amendment to the Constitution can permit the three major networks, and the 7000 broadcasters of this nation to impose an absolute ban on all radio and television broadcasts paid for by the major political parties if they discussed controversial issues of public importance.

The rule we asked for is a very simple rule.

It simply requested the Commission and I quote “That a broadcaster may not as general policy refuse to sell time to responsible entities such as the Democratic National Committee for the solicitation of funds and for comment on public issues.

John Paul Stevens:

Mr. Califano would you care to define responsible entity?

Joseph A. Califano, Jr.:

Your Honor we’ll use that — Mr. Justice we used that phrase in the rule because it is the phrase used to — by the communications industry in the FCC under the Fairness Doctrine and — where they present an editorial view on one side and say that responsible spokesman are invited to answer that editorial on the other side.

Potter Stewart:

Certainly not a concept though that has any relevance to the First Amendment, is it?

Joseph A. Califano, Jr.:

I think the relevance —

Potter Stewart:

The First Amendment doesn’t allow the Government to control the speech of their responsible people, does it?

Joseph A. Califano, Jr.:

No your — No, Mr. Justice.

It does not and as far as we are concerned the only possible difference between the — well, I might — let met put it this way.

I suppose the point of using that phrase and not simply asking that the DNC or the two major political parties be granted time was that we recognize that the FCC will have to establish some reasonable regulations along the line.

Warren E. Burger:

Mr. Califano, while we have you stopped — would it be reasonable and appropriate for the Federal Communications Commission under your formulation to say yes the network or the station must make that time available on those terms provided that they make an equal amount of time available within the same five-minute span for the contrary view?

It is a 45-second against something and then that they must allow a 45-second plug right afterward for the contrary minded.

Joseph A. Califano, Jr.:

Well, the — Mr. Chief Justice, we have — the Fairness Doctrine would still operate as we see our rule.

It would be — it would operate along side of it and to the extent that issues were not covered or that other spokesman wanted to deal with the very same issue, we would think that the networks should indeed permit them to do so.

In — in response to the question whether they should go back to back with it, we have argued in the whole series of other matters with the networks and with the Communications Commission about that right, and the only time — the only time we’ve ever been granted that was when Senator Muskie and President Nixon spoke back to back in 1970 on election eve.

Aside from that, we’ve never been able to establish that as a right and I have to say that I don’t think it’s — it recognizes the right by the FCC or most people in the communication.

Warren E. Burger:

Well, wouldn’t this — wouldn’t this hypothetical situation I have just suggested be an implementation in a precise way of what the Fairness doctrine is driving at?

Joseph A. Califano, Jr.:

Well, Mr. Chief Justice, yes, that — that is certainly one way to do it.

I think what I’m saying is that it’s — it is not the only way, there are probably any number of reasonable solutions the Commission has found any number of reasonable solutions to deal with Fairness Doctrine.

Warren E. Burger:

Well, on the fairness question lies, would this be a reasonable solution?

Joseph A. Califano, Jr.:

Yes Your Honor.

The Solicitor General stated the proceedings below and I will not repeat them, with one exception.

I think it’s important to note that the Federal Communications Commission granted part of the DNC request.

The Federal Communications Commission said, that a broadcaster could not refuse as a general policy to accept spot announcements for the solicitation of funds, it denied the rule we — we requested insofar as that rule involved the discussion of controversial issues of public importance, and the Commission opinion below in no way attempted to tell us how make that distinction even in a 60-seconds spot soliciting funds for a political party.

The Court of Appeals affirmed the Federal Communications Commission insofar as it granted us the right to purchase spot announcements to solicit funds, and reversed the Federal Communications Commission holding that on absolute ban, which is what we are talking about, an absolute ban by the broadcasters and the networks violated the Communications Act and the First Amendment to the Constitution.

William H. Rehnquist:

Is it that clear that the Court Appeals holding was statutory as well as constitutional, Mr. Califano?

Joseph A. Califano, Jr.:

They specifically state here, Mr. Justice Rehnquist in the opinion that whether — whether the opinion is considered based on the Communications Act or the First Amendment is a matter of little influence since the Communications Act, as the Court of Appeals rather incorporates the same First Amendment values.

The broadcasters and the FCC opinion blesses their attitude in this case.

The broadcasters in a sense and precisely are saying that they have the right to impose an absolute ban, that they can explain to the American people, what the views of the Democratic Party are or what the views of the Republican Party are or what views of any individual spokesman for them are, better than that spokesman can do it themselves.

And in — in the age of double think and euphemistic double talk that we live in, they call it journalistic intervention.

Potter Stewart:

Well —

Joseph A. Califano, Jr.:

They say that —

Potter Stewart:

Let’s assume just dealing with the First Amendment plain out now, forget the Communications Act.

If these broadcasters were newspapers surely they would be wholly correct in their point of view, wouldn’t they?

Joseph A. Califano, Jr.:

Yes, Mr. Justice.

They would be, but they’re — but they’re not (Voice Overlap)

Potter Stewart:

This would be the absolute right under the First Amendment, wouldn’t it?

Joseph A. Califano, Jr.:

Newspapers as if —

Potter Stewart:

Just answer that question.

Joseph A. Califano, Jr.:

Yes.

It would be right —

Potter Stewart:

Just to make sure I understand you (Voice Overlap)

Joseph A. Califano, Jr.:

— prior to the owner’s newspapers would have that right and I might note that that is precisely a point that the Solicitor General made in the argument he made on the Red Lion case.

He distinguished broadcasters from newspapers.

Potter Stewart:

Well, certainly they are different but I just want to be sure I — that you go at least that far under the First Amendment that if — that if these were ordinary, that if these were newspapers, they would have an absolute right to print want they wanted and to refuse to print what anybody wanted them to, government or private individual, wouldn’t that be true?

Joseph A. Califano, Jr.:

That’s correct.

Potter Stewart:

And that would be a First Amendment right (Voice Overlap)

Joseph A. Califano, Jr.:

That is their first (Voice Overlap)

Potter Stewart:

— that would be reason they have that right, wouldn’t that?

Joseph A. Califano, Jr.:

That — that is correct, Mr. Justice Stewart.

Potter Stewart:

All right.

Joseph A. Califano, Jr.:

The Communications Act, I might note on — on that point specifically — specifically notes in Section 301 that the FCC which grants licenses to broadcasters to provide for the use of such channels may not provide for the ownership of those channels specifically dealing with that point.

Newspapers are privately owned, the channels of broadcasting, broadcasting is — is about as regulated as any industry in this country and I guess the point might as well for a moment deal with the questions on state action.

As far as we are concerned as we have laid out in our brief, we think there is clearly state action in the action of a broadcaster.

There is a federal statute involved with the public interest standard.

The federal statute preserves the public ownership of the airwaves permitting licenses for relatively short and temporary periods of time.

We are dealing in this case with an order of a federal regulatory agency, the Federal Communications Commission which in turn is dealing with rights of exercise over public property.

The Government cannot avoid responsibility, the Federal Government for orders it issues simply because it puts them in permissive terms, and to sum it up in the words of one commentator cited in our brief, the federal regulatory system is as much responsible for the existence of — of the broadcasting medium as the Bureau of Engraving is responsible for the existence of the US currency.

Warren E. Burger:

Well, I — I’ve always been under the impression, Mr. Califano, that the legislative history of the Act negates the idea of a governmental control of the content, is that not true?

Joseph A. Califano, Jr.:

Yes Your Honor.

The — the Section 326 of the Act prohibits the Commission from interfering with the right of free speech by means of radio communication.

But what we are asking for is not that the broadcaster or the Commission — that the Commission start saying what the content of any broadcaster’s program might be.

What we are asking for is that the broadcaster be required to recognize our First Amendment right to have some access.

We don’t ask for every minute of everyday and — and experience in this area would indicate that nobody is going to take anything, any large enormous amounts of time.

Something, I might say, in the legislative history, some of the legislative history on this very point is laid out in our brief.

The FCC already in effect, regulates something about spokesman and the Fairness Doctrine.

This Court in Red Lion has recognized that some spokesmen at least when they are personally attacked have the right to appear on television.

And what we are asking for is not inconsistent with what the FCC said a generation ago and in 1945 for example, in the United Broadcasting case which involved the right of a cooperative or a labor union to have some access to television.

I quote one sentence from the commission’s opinion, “The Commission is of the opinion that the operation of any station under the extreme principles that no time shall be sold for the discussion of controversial public issues and that only charitable organizations and certain commercial interest may solicit memberships is inconsistent with the concept of public interest established by the Communications Act as the criterion for radio regulation.”

We are not asking for — for anything new in this case.

There are other cases subsequent to that which in fact agree with it.

We believe, as we indicate in our brief that this case can be decided on the basis of the Communications Act and that it is not necessary for this Court to go to the First Amendment issue.

We lay out our analysis of the legislative history of the early Communications’ opinions of Section 326 of the Communications Act and of Section 301.

As far as the common carrier point which is made only briefly here in all argument by the — by the broadcasters is concerned, we would note simply that our view of that provision is that it was designed to distinguish telegraph and telephone companies which are handled by Title II of the Communications Act from broadcasters which are handled by Title III.

And moreover, the rule we ask for is not a right of automatic access for the Democratic Party or any particular individual.

This — it — it recognizes that judgments must be made, but we believe that the broadcasters and the FCC can make a judgment short of absolutely banning us from the air.

With respect to the constitutional points —

Potter Stewart:

Now, is that — insofar as your argument does rely on the First Amendment, that seems to me an extraordinary thing to say that Government can make judgments as to what — what it will suppress and what it won’t.

That’s exactly what the First Amendment does not permit, isn’t it?

Joseph A. Califano, Jr.:

The judgment today — we do recognize that there are limited numbers of hours in a day.We recognize that there are only three networks in this country.

Potter Stewart:

Yes.

Joseph A. Califano, Jr.:

We recognize that most communities only have a certain number — a relatively small number of (Voice Overlap) —

Potter Stewart:

So we have a finite spectrum.

Joseph A. Califano, Jr.:

So we have a finite spectrum.

Potter Stewart:

But then — but then you say that the broadcasters which you equate to Government can say — we’ll — or must say, “We’ll let you speak because you’re responsible.”

But may say, “We won’t let you speak because you’re irresponsible.”

Now, that’s an extraordinary limitation of the First Amendment of the United States Constitution, it seems to me.

Joseph A. Califano, Jr.:

What — What — I’m — I’m — Mr. Justice Stewart, I’m not saying it in those terms.

What I’m — what I’m saying is this that recognizing we have a finite resource, recognizing as this Court did in Red Lion that we are talking about — because of that in some sense an abridgeable First Amendment right —

Potter Stewart:

That — that contradicts that term, isn’t it?

Joseph A. Califano, Jr.:

Well, that’s the language of the unanimous opinion of the Court.

Potter Stewart:

Well, that language of the First Amendment says, “Congress shall not abridge,” doesn’t it?

Joseph A. Califano, Jr.:

Yes, it does.

But the — but the — but the writers — the writers of the First Amendment — well, let — let me put this way.

I think we — we have to deal with the realities of a — of a medium that we — we now have.

The realities of that medium are that it’s limited.

What is happening today is that broadcasters are simply saying if you — if you’re peddling commercial items, you have a right to buy time.

If you want to peddle political ideas or political parties, you have no right to buy time.

And we say that there is something less than that kind of outrageous discrimination and less than an absolute ban that the broadcasters can operate under.

I think that it — you know, to — to say that the whole broadcasting system will collapse if this Court or anyone opens up the airwaves to people or political parties to discuss controversial issues is contrary to all the experience that — that we have.

The — the newspapers and the magazines of this country are not filled with political advertisements.

The corporations that advertise their television sets, and their automobiles, and their department stores, and their grocery items, in the newspapers of this country have not taken the billions and billions of dollars they spent in newspapers and — and simply turned it over to the discussion of — of public issues.

I don’t think there’s — I think the wealthy man is — is a straw man of a — of a very thin proportions and I think that anyone that has attempted to — to find this wealthy man to — to buy television time for the discussion of controversial issues by the major political parties, at least, and I would dare say would be difficult — more difficult for others who just found out that there’s not a barrel of money out there waiting to be spent.

We’re not going to face this problem.We do have to recognize, however, the broadcast medium is a limited medium.

As far as we — we believe that the Red Lion in its language, we believe our First Amendment right for direct communication is strong and involves a right of direct communication.

We think there is no substitute for that.

I — I don’t think anyone in this chamber could believe that — that it is the same thing to have Walter Cronkite or John Chancellor or Roger Mudd explain what President Nixon said as it is to have President Nixon make his direct appeal.

Joseph A. Califano, Jr.:

Would anyone assert that if — if Walter Cronkite had laid out the reasons why President Nixon invaded Cambodia, the American support for that would have gone from five percent to 70%?

Would anyone assert that there is some journalistic intervention that could have made the case for the Gulf of Tonkin resolution of President Johnson more effectively that he could have made it?Should the broadcasters or Mr. Wollenberg or Mr. Jennes, would they like to have Frank Reynolds or Walter Cronkite come up here and explain what they’re trying to tell the Court?

The point is that this is the medium of communication in this country.

It has a greater impact on our political dialogue and our electoral system than any other form available to any person or party in this country and we simply want a right to — we want to rule that simply says to the broadcasters, “You cannot say that no political party can purchase time on television for the discussion of controversial issues.”

Warren E. Burger:

You are not suggesting Mr. Califano that all networks and all stations are now exercising such a limitation, are you?

Joseph A. Califano, Jr.:

No.

Your Honor, we’ve been through a whole series of — of rules on that.

There are a variety of rules in that area right now.

Some — some networks and stations have a policy which says that during election periods a — time can be purchased by candidates or people on behalf of candidates.

Warren E. Burger:

And spot announcements too, wouldn’t it?

Joseph A. Califano, Jr.:

And spot announcements may be purchase during those periods.

But outside of those periods, you may not do that.

Warren E. Burger:

In other words, when there is no campaign — election campaign on, that’s what’s you’re complaining about?

Joseph A. Califano, Jr.:

That’s correct.

The rules indeed of the networks in this case changed the — at various points of this proceeding.

CBS initially took the position, for example, that they would not sell time except during election periods and then only to candidates, either spot time or — or programing time and they denied us programming time.

Three months later when the FCC after we filed our case, CBS said they would change the rule and they would permit spot announcements simply to raise funds but not to discuss controversial issues.

Eight months later when we were in the Court of Appeals, CBS said that it would now permit spot announcements for us to discuss controversial issues, announcements of 60 seconds or less and to raise funds but no more.

And in part, I might say, it seems to us that it is not — you know, we should not have to depend on how CBS executives feel on any given morning or at any given stage of a legal proceeding as to what our rights are to — to express our views to the American people over the medium that 95% of the American homes find as their greatest source of information and news in this country.

I have made the discrimination point in terms of spot announcements.

I believe the same kind of discrimination exists in the programming area as we’ve laid out below and here.

There — it seems to me that — that all — all programming, people can buy programming, religious organizations can buy programming but the — the two major political parties cannot buy programming.

Potter Stewart:

Well, they can’t buy unless the networks sell it.

Joseph A. Califano, Jr.:

If the networks sell it.

Potter Stewart:

Is there — there is no rule, is there about the — the Commission that requires the network to sell it to religious organizations?

Joseph A. Califano, Jr.:

Not to my knowledge.

Potter Stewart:

The question is here, the freedom of the networks to — or the stations or broadcasters to — to sell or not to sell, isn’t it?

Joseph A. Califano, Jr.:

Well, no.

And Mr. Justice Stewart, their right to absolutely prohibit this kind of discussion.

Potter Stewart:

Yes, their right to have a general rule that we will not sell time for this purpose.

Joseph A. Califano, Jr.:

That’s — that’s correct.

Potter Stewart:

So their freedom not to sell time for this purpose, that’s the issue, isn’t it?

Joseph A. Califano, Jr.:

That’s correct, Mr. Justice.

Warren E. Burger:

You’d have different question, would you not if you could show that particular network would sell spot announcements and the others that you want to one political party but not to any other political party.

Joseph A. Califano, Jr.:

Oh, you’d have a much, much more greater situation.

Warren E. Burger:

But that’s not — that’s not the situation you have here, isn’t it?

Joseph A. Califano, Jr.:

No.

That is not Mr. Chief Justice.

Warren E. Burger:

This is a classification made by the licensees and approved or at least not disapproved by the Commission.

Joseph A. Califano, Jr.:

That is correct, Mr. Chief Justice.

There are, I might note, according to the Census Bureau, about a hundred religions in this country.

Two or three of them have — have purchased time on Sunday mornings for religious shows and it hasn’t destroyed television on Sunday.

The other 95 haven’t come bouncing in to acquire that time.

Some corporations are — are affectively granted the right to purchase entire amounts of time, witness, as we say in our brief, some of the National Geographic and the — and Xerox shows that have appeared on the air.

The broadcasters set up in their briefs a whole chamber of horrors.

The only one of which was discussed here this morning was the wealthy man, a straw man, which — with which I have dealt briefly.

As far as the remaining points that they raised about administrative difficulties, I would urge the Justices of this Court or their clerks to review the briefs in the Red Lion case and the arguments of the broadcasters in the Red Lion case, and they will find a neat and remarkable similarity between the arguments they made there and the arguments they make here today about administrative horror.

But today, CBS in its brief before this Court and before the Commission and the Court of Appeal says, “Their public issue of broadcasting has never been better.

It improves every year since Red Lion.”

So, I cannot, with all due respect, give and I do not think this Court should give just as the Court of Appeals do not give, much credence to this administrative horrors.

And the bottom-line on that point, I submit, Mr. Justices is this, in Red Lion, in the unanimous decision, the Court of Appeals of the — this Court noted that it would not decide the case on the basis of extreme possibilities or extreme examples.

The Solicitor General indeed, in his argument in Red Lion urged that particular point upon this Court.

In case of doubt, this Court opted to go with the First Amendment values and the rights of free speech, noting and inviting the broadcasters to go back to the Federal Communications Commission and ultimately come back here if any of the horrors that they envision — envisioned any of their nightmares ever came to pass.

None of them ever did come to pass and the same kind of doubt, if any one has it, in this room besides the broadcasters of dangers should be treated in the same kind of way in this case.

We believe that that opting for free speech is consistent with everything, with a whole host of decisions of this Court.

We believe that this Court and in effect, opted for free speech and the (Inaudible) case in a situation of dangerous, explosive, dirty, and outrageous fighting between truckers and railroads.

In Times v Sullivan, this Court opted for free speech in a situation where a newspaper lied.

In the Pentagon Papers this Court opted for free speech even though the national security of this country might have been involved.

In this case, the only inhibition on opting for free speech or a host of possibles that the network’s claim may come to pass and that they may hurt the system of broadcasting.

I think that in this —

Byron R. White:

Mr. Califano, don’t you have a further obstacle in that?

You have the Communications Commission which says, this a — in our judgment, this is a — the way that the Federal Communications Act should be administered — interpreted and administered and also this is the way the First Amendment values would — must be maximized.

It’s not just the broadcasters, is it?

Joseph A. Califano, Jr.:

No, but in their — in their opinion they — they expressed explicit agreement with the — with the several of the problems.

Byron R. White:

We do have — we do have a judgment of an administrative agency.

Joseph A. Califano, Jr.:

We do have a judgment —

Byron R. White:

Interposed here, don’t we?

Joseph A. Califano, Jr.:

Yes, we do, Mr. Justice White.

We have a judgment of the administrative agency, with which a — obviously, we disagree.

We — we do not think that the FCC — well, we have two judgments.

We have a judgment of an administrative agency which says “Yes.

Sell them spot announcement time.

That’s no problem —

Byron R. White:

Yes.

Joseph A. Califano, Jr.:

— to raise funds.”

But you don’t have to sell them time to discuss controversial issues.

That part of the judgment does not make sense to us in the sense that, I do not think it’s possible for a major political party to advertise, to raise funds without saying something about some issue or about not — or about what —

Byron R. White:

Well, what the inconsistent —

Joseph A. Califano, Jr.:

— it stands for.

Byron R. White:

What’s inconsistent with the Communications Act?

What specific provision of Communications Act is it — in the FCC ignoring in its principle that —

Joseph A. Califano, Jr.:

Well, I was — I think that the — the provisions of the Communications Act that we would say the FCC is not dealing within its present ruling or one, the fact that these are publicly own airwaves, Section 301.

Number two, that they have not adequately applied the public interest standard that in connection with the communications area, the public interest standard is just imbedding in First Amendment considerations.

And to the extent that First Amendment considerations are imbedded in that standard, I might say that the — it is this Court that — that really is the expert in the First Amendment and not the FCC.

Warren E. Burger:

Well, I thought you were addressing yourself to just the statutory aspect?

Are — are you — well, are you saying that Section 301 standing alone is enough to support the Court of Appeals’ view?

Joseph A. Califano, Jr.:

The — No, 301, the public interest standard which is involved in half a dozen statutes cited to half dozens sections of the Act which are cited on our brief, relating to licensing prescribing service and a whole host of determinations and the fact that in — in the Federal Communications Act, the public interest standard necessarily does involves some First Amendment considerations and some of the — and does embody some the public policy considerations that are relevant to consideration of free speech values.

Thank you.

Warren E. Burger:

Thank you, Mr. Califano.

Mr. Asher.

Thomas R. Asher:

Mr. Chief Justice, may it please the Court.

Because I — I feel that perhaps the argument has — has taken a path of obstruction, I would beg, leave to try to focus upon the specific facts present in the BEM case to illustrate the exact nature of the issue before the Court.

The narrowness of that issue has held by the court below.

The issue is one of discrimination, broadcasters voluntarily determine that in order raise revenue, they’re going to put a certain portion of their airtime up for sale and market it to others.

And if those other persons are going to use that time to speak.

BEM approaches — approached the broadcaster that did just that with 18 out of every 60 minutes is on the air, WTOP Radio Station sought to purchase time.

It was turned down, not for any of the reasons suggested by the petitioners, not because the speech was obscene, indecent, defamatory or might somehow otherwise be in violation of some specific law.

But solely and exclusively on the basis of a policy which is set out at page 297 of the appendix.

I quote, “It is the policy of Post-Newsweek Stations, radio and television stations not to sell spot announcement time to individuals or groups in order to set forth a point of view on any controversial subject of pubic importance.

And that presents the clear, narrow issue that was decided by the court below.

That’s a flat ban on selling time which is regularly marketed to commercial spokesman to people who wish to speak about controversial subjects.

In brief, such a policy as we view the — the ruling of the court below and as this case is presented involves no question of creating a new constitutional right — of right of access as — as it’s phrased.

Rather, it deals specifically with a question of whether or not assuming for the moment, I will address state action.

Assuming that the action of the broadcaster is either itself state action or because of firm and approved by the regulatory agency state action, whether or not this discrimination, barring for First Amendment protected speech, in and of itself, is violative of the First Amendment.

It doesn’t mean that every person has a right to speak, but rather a right not to be excluded on such a discriminatory ground.

We would suggest primarily that — that reading cases like Valentine against Chrestensen, and Breard versus Alexandria, the — the approach taken by the broadcasters in terms of their marketing of time turns constitutional values on their head because this Court has time and again in those cases held that the First Amendment protects political speech.

It does not protect commercial speech.

It somehow rather the commercial speaker when he wishes to — to address particular issue or the merits of his product or otherwise in his own words, may come and buy time on the nation’s most power communications medium, and when — when editorial speakers be they political parties or voluntary groups like BEM or civil rights organizations as in the case of New York Times against Sullivan wished to pay same rate, to buy the same time, to address what they regard is the most important issues of the day, they discriminatorily refused any opportunity to purchase that time.

Byron R. White:

Did you make the same argument with respect to the newspaper?

Thomas R. Asher:

Would I make the same argument with respect to —

Byron R. White:

The newspaper sold — sold their ads for selling houses but refused to sell ads for controversial view?

Thomas R. Asher:

I think it would — it would present a different — a different issue Mr. Justice White that we need not reach in this case.

I think that the — the controlling factor would be state action.

Byron R. White:

Well, I know but if the —

Thomas R. Asher:

If it were a governmentally owned newspaper, the answer is yes, we would make that argument.

If on the other hand is a private newspaper —

Byron R. White:

Like a broadcast station?

Or is a broadcast station publicly owned?

Thomas R. Asher:

It’s not publicly owned, but I think it is so — so inundated with public values.

It’s licensed to use public property.

Thomas R. Asher:

I would — I would, if it’s possible, I’d like to defer the state action argument for a moment, but if you’d prefer I’ll address it now.

Byron R. White:

(Inaudible) — go ahead.

Thomas R. Asher:

The — the petitioners seek to justify the exclusion of editorial advertisements on two distinct grounds and I think this should be kept in mind.

One is that somehow or other the Fairness Doctrine offers an alternative to letting people speak, and therefore, there’s no real — real First Amendment interest leftover on the part of people who want to buy advertising time to say what they wished to say.

The Fairness Doctrine is taking care of all that.

The — the broadcaster has — has in an alternative manner told the public all that it needs to hear.

Any individual who wishes to speak can rest assured that if a speech was worthwhile, it would have been communicated by the broadcaster already.

The second is a parade of what — of — of horrors which we regard as purely speculative and totally undocumented on the record in this case.

Now, to — to address the first question, whether or not the Fairness Doctrine constitutes a substitute for or justification for excluding constitutionally protected speech from the marketplace of advertising.

And — and I perhaps ought to digress for a moment to — to indicate that the court below limited its holding to that time which a broadcaster voluntarily elects market to others.

The Court characterized that as advertising time.

So, when a broadcaster voluntarily elects the market time as to that time that it cannot invidiously discriminate between controversial speech and others.

John Paul Stevens:

You — you are — you said going to get to the question of whether or not a broadcaster can be equated with the — the — a Government, aren’t you because there’s nothing to your arguments unless that preliminary threshold is covered?

Thomas R. Asher:

Well, perhaps I — since Justice White and yourself both — both expressed interest in my doing it sooner I — I would address it at this moment.

If I can refer back to a 1966 opinion written by the Chief Justice when he sat on the Court of Appeals Office of Communication of United Church of Christ, the FCC.

The very question of whether or not a broadcaster can be equated with a newspaper in terms of First Amendment rights was — the question raised by Justice Stewart earlier.

I was (Inaudible) —

Potter Stewart:

I — I didn’t, I said, “If we were dealing with the newspaper.”

I know the Red Lion — Red Lion could’ve been decided the way it was if a broadcaster is the same as a newspaper because clearly the Government under the First Amended doesn’t have power to tell newspapers to be fair and balance their reporting or anything else.

The newspapers have an absolute right to be unfair.

And we held that in Red Lion that broadcasters do not so obviously, they’re not the equivalent.

Thomas R. Asher:

Yes but — but —

Potter Stewart:

I didn’t suggest they were.

Thomas R. Asher:

No — no I didn’t suggest — suggest that you did Mr. Justice Stewart, only — only that you — that you had addressed the question of — of —

Potter Stewart:

If these were the (Inaudible)

Thomas R. Asher:

Oh at least there — an analogy here between the newspapers (Voice Overlap) —

Potter Stewart:

(Voice Overlap) —

Thomas R. Asher:

— and the broadcasters have quite clearly suggested that there is an analogy.

And — I — I will not burden the Court with — with all of the analysis that — that Mr. Justice Burger went through, Chief — Chief Justice Burger went through in Church of Christ case except to — to point out that it was clearly rejected that there’s any analogy between the freedom of a — of a broadcaster to — to make arbitrary decisions and that — and that of — of the newspaper which in Church of Christ case, it was characterized as a purely private enterprise.

Warren E. Burger:

When you — when you say that the —

Thomas R. Asher:

Pardon me?

Warren E. Burger:

— the newspaper was characterized as a purely private —

Thomas R. Asher:

Yes.

The newspaper was characterized —

Warren E. Burger:

It is the same distinction Justice Stewart has been making.

Thomas R. Asher:

That’s right.

And — and emphasizing the — the difference between broadcasters and newspapers, Mr. Chief Justice, you — you use the following language, “A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain.

When he accepts that franchise, it is burdened by enforceable public interest obligations.

A newspaper can be operated at the whim or caprice of its owners.

A broadcast station cannot.”

Now, in essence we’re — we’re addressed but here, is whether or not, at the whim or caprice of a — of a broadcaster, it can market its advertising time so as to draw what we would think is — has been clearly established by this Court.

Last term in Mosley is the most recent example as invidiously discriminatory policy.

But somehow or other the controversiality of the speech would someone wishes to utter in time when he seeks to buy, the term is whether or not he can utter it.

And in fact, if it’s controversial he cannot purchase the time, he is flatly banned.

If it is not controversial and therefore not protected by the First — by the First Amendment, then he can.

Warren E. Burger:

Mr. Asher the language following that quoted portion that you referred to in the United Church of Christ case went on to say in effect that the — when they come to the renewal of their license, they’re held to an accounting of their stewardship in terms of whether they’ve been operating on whim and caprice or whether they’ve been operating in the public interest.

It’s quite a different matter from the inverse of prior restraint or prior compulsion that you’re talking about here now.

Thomas R. Asher:

I think that that’s — that maybe quite right Mr. Chief Justice, but what the Commission has established in this case is a policy that when a broadcaster’s license comes — renewal comes up, and every three years, each broadcaster’s license comes up.

That — that whether or not they engage in this invidious discrimination, notably whether or not they employ a flat ban.

This will not be regarded as a negative factor on — on the side of — of determining whether they have served the public interest.

In fact, the Democratic National Committee asked for alternative relief from the Commission to ask, one, the flat bans be prohibited or — or two alternatively, that the Commission declare that it will be regarded as a negative aspect in terms of — of serving the public interest.

At renewal time that the broadcasters do discriminate against controversial speech in the sale of their advertising time.

The Commission rejected both of those approaches.So what the Commission in essence has done here is it’s given the broadcasters carte blanche to employ a discriminatory policy.

And when a broadcaster comes up for renewal, this policy will not be held against him.

In fact, in — in the — in the pleadings in the BEM case, WTOP specifically stated that — excuse me — that — that it was employing a policy that have been approved by the Government.

Now, this approval goes to the very core of whether or not its license is going to be renewed.

And it makes no difference whether — whether the — the Commission in a specific proceeding such as BEM’s complaint or in a general request for declaratory ruling as in the case of Democratic National Committee states that a particular discriminatory policy will be regarded as an adverse factoring in license renewal.

The question is, “Has — what has the Commission done here?”

It is said, “We will not regard this as an adverse factor.

We regard this as at best a totally neutral factor.

Thomas R. Asher:

You’re free to go on discriminating and your licenses will be renewed as usual.”

William H. Rehnquist:

Mr. Asher, supposing that your client’s claim has been rejected by a network which had a policy of selling no time for any sort of advertising, would you still claim a First Amendment denial and that your client — client has a right of access to these public airwaves?

Thomas R. Asher:

Not — not on the fact of this case Mr. Rehnquist.

The First Amendment right I think is a sort of obstruction that we all walk around guard with and the question is, “Where can we exercise it and under what terms can it be denied?”

The facts here were rather narrower ones and the court below made it — rather narrow ruling.

So when a broadcaster holds forth time for sale, then within that time it cannot discriminate invidiously between controversial and commercial speech.

That is the sole ruling that we’re seeking affirmance on here.

And — and the facts of this case need not get beyond that nobody — the question of — of a broadcaster which is a noncommercial broadcaster, which is not hold out time for sale and thereby make a discrimination with in that time.

Some — some mention was made of the Moose Lodge case and — and that somehow or other it’s dispositive of the — of the facts before the Court here.

Of course, Moose Lodge involved a private club which — which have been licensed by the state to sell liquor.

Here, we’re talking about what has been time and again characterized as a publicly engaged industry licensed to exercise control over what is perhaps the most important form of communications in the country.

But there’s no constitutional value protected in terms of person’s right to drink.

And the regulation in the liquor area was focused primarily upon keeping drunks and minors out of — out of bars.

A legitimate State interest but clearly no way relevant to — to determining whether or not when the Government owns the airwaves, owns the — the form of communication as it did in Burton against Wilmington Parking Authority.

And on top of it, licenses it out to others to utilize whether or not at least for — for the purposes of applying the First Amendment to the way in which the — those airwaves are allocated.

There’s not sufficient action to call a State interest or State act must — not sufficient interest to call a state action.

And if one compares the analysis engaged by this Court in Moose Lodge where — where one was not concerned with the vital First Amended values with — with Lloyd against Tanner where there was no licensing whatever.

It was — it was a privately owned shopping center which was not licensed by the State.

Yet, nonetheless the Court — the Court’s majority felt obliged to go to great lengths to point out the First Amendment values are so important, that reaching that — that shopping center’s clientele as an audience are so important that there are alternative ways of reaching that audience without getting inside the shopping center, notably distributing the leaflets relief at the entrance ways.

Now, whether one agrees or not with — with the result reached in Lloyd, what I think Lloyd demonstrates that when — when dealing with First Amendment values, in — in a form that maybe appropriate for the communication of speech, this Court goes to great lengths to try and determine whether or not speech is being unduly curtailed.

Here we’re dealing with a form unlike in Lloyd which is dedicated solely and exclusively for the purposes of communication.

It has no — no purpose or whatever — whatever other than communicating information.

Potter Stewart:

Have you said all you’re going to say — addressed to the point that broadcasters are Government?

Thomas R. Asher:

No.

I think — I — well I would — I would like perhaps to — to address the Court’s attention to page 72 of our brief.

We set out the language of Section 301 which may — perhaps be a good place to start analyzing the question of the degree of governmental involvement in the operation of the broadcasters.

It is the purpose of this act to maintain the control of the United States over all the channels of interstate and foreign radio transmission and to provide for the use of such channels but not the ownership thereof by persons for limited periods of time under licenses granted by the Federal authority.

And no such license shall be construed to create any right beyond the terms, conditions, and periods of the license.

Now, starting from that preposition, we are dealing with a — with a valuable public resource that the Government has maintained very, very stringent ownership of and the statute requires that it maintain control over.

This differs from — from virtually every other state action case they were — that — that this Court has ever been approached with including in fact Burton against Wilmington Parking Authority where there was no specific statutory requirement that the parking authority maintained control over each and every square foot of the parking lot they have built.

Thomas R. Asher:

Time and again, this Court when faced with — with the question of the way in which the Government regulates broadcasting has — has expressed in — in the broadest of possible terms that the manner in which the Government exercises this — this control.

For example, in Pottsville Broadcasting which was quoted and Red Lion, this Court used the term but the Government maintains a grip on the dynamic aspects of radio transmission.

And again, in Red Lion, this Court stated that — that broadcasters have been giving a preferred position — preferred position conferred by Government.

We figured we — we — when we blend all of these factors together.

I think it was extremely difficult not to find at the very least.

That the way in which broadcasters operate in terms of allocating their — their airtime.

And — and when we’re talking here about how it voluntarily made a decision to — to market their airtime must be held up to governmental standards.

The same First Amendment standards that would be applied if the Government were operating these — these stations themselves.

We’re not talking now about that portion of the broadcaster’s time which he is not holding out to others.

William H. Rehnquist:

But can — can you really make that serve a distinction between a marketing of commercial time and the other aspects of the broadcasting business when you’re trying to decide whether or not this is a state or governmental action?

Thomas R. Asher:

I — I think — I think you can make — you can make the distinction, Mr. Justice Rehnquist only — only as follows, well, the Fairness doctrine sweeps across the entire board of — of the — of broadcasters dealing with controversial issues.

And so, presumably, the government has asserted an interest in — in the whole manner in which it’s done.

From our point of view, the right that we’re asserting is not an absolute right to all of the broadcaster’s airtime.

It simply a right not to be discriminated against when the broadcaster elects to sell some of it.

It’ll be a different case if it ever comes up when someone asserts a right to broadcaster’s time that the — that the broadcaster is not determine he’s going to market to others.

William H. Rehnquist:

But in order to decide whether or not it’s governmental action, the — the Court would have to adapt some general principle not just to say that in these two particular cases its governmental action and we’ll worry about others when they come here.

I’m wondering whether any general principle could be applied would find it governmental action here that wouldn’t require it to be found governmental action in almost every other facet of the business.

Thomas R. Asher:

Well, yes, I think — I think so.So certainly if in — if in a broadcast station’s offices an employee tripped and — and would hurt himself, he wouldn’t have to assert his rights under the Federal Tort Claims Act.

Notably, the distinction is that — that the airwaves or where their licensed out by the government and it’s the utilization of those airwaves which — which bring — bring the broadcaster within the ambit of state action or aspects of — of a broadcaster operations be the employee practices or otherwise would be judged on different grounds.

But again, the — the focus here is primarily upon — upon the utilization of airtime, the allocation of airtime.

Potter Stewart:

If that’s — if that’s true then — then I don’t see how a broadcaster who would have any power whatsoever to limit or censor anything on — on his station.

Thomas R. Asher:

Well, I — I — limitation and censorship may perhaps be the same Mr. Justice Stewart.

All — all that we are asserting here is that — certainly, no one has an absolute right to speak on the airwaves and NBC case made this clear.

What we’re saying is that — that the broadcaster has not got a right to be unreasonable.

Potter Stewart:

Well that’s — that’s an equal protection argument.

Thomas R. Asher:

That’s right.

Potter Stewart:

That’s very much what it sounds like really.

Thomas R. Asher:

That’s right and I think the —

Potter Stewart:

I think that that’s an argument not a — that too, it depends first of all upon the equating a broadcaster with Government but equal protection is something else and that’s really what — you would agree I think that the Court of Appeals’ opinion is heavily larded with equal protection (Voice Overlap).

Thomas R. Asher:

Oh, right, and I am trying to make my argument accord with that.

Thomas R. Asher:

I think that in — in stressing the element of discrimination rather than the element of absolute rights, we’re focusing on whether or not there has been an invidious discrimination which I get in — in deciding mostly last term, this Court acknowledged that the First Amendment interest and equal protection interest were intertwined, but nonetheless came down on — on equal protection grounds.

I think what we find ourselves faced with here is largely the same — the same factor.

The government can limit speech.

It limits speech all the time.

The question is, “Is it doing on a reasonable basis?”

And — and that I believe to be the — the fundamental question here.

Potter Stewart:

You say that government can limit speech and it does all the time?

Thomas R. Asher:

Oh I think — I think there’s no doubt about it.

It — it closes this courtroom at a certain time and only allows certain to speak in the courtroom.

Potter Stewart:

Time and place (Inaudible)

Thomas R. Asher:

(Inaudible) time, place, and manner are perfectly permissible while one may have a right to speak in — in the Capital building during (Voice Overlap) —

Potter Stewart:

Time and place, not — certainly not by the — by the —

Thomas R. Asher:

Certainly not —

Potter Stewart:

— by way of the content.

Thomas R. Asher:

Certainly not on the basis of the content and if on a content at all, certainly not on the basis of the fact that controversial speech will be excluded.

Potter Stewart:

About responsible speech, speech by responsible people as contrasted with irresponsible people.

Is there any part of Government under the First Amendment to make that kind of a distinction?

Thomas R. Asher:

It’s — it’s a — it’s a very, very difficult distinction to make Mr. Justice Stewart and — and certainly this Court has — has many — many cases suggested that the — that regardless of whether or not one is — what is responsible.

One has — has a right to speak, that may — the answer to the question is, “If — if a form is unlimited, then — then probably you cannot distinguish on the grounds if — if this man irresponsible and that man is responsible.”

However, if the form is limited, it may be a reasonable ground to suggest that one man is speaking for a broader audience than another.

We — we constantly face allocated problems when — when two people want a parade permit to go on the same street at the same time, the Government has to make an allocative decision and there are numerous reasonable grounds in which you could do it.

Now, responsibility maybe one of them, although I find it the most troublesome simply because it’s the kind of judgment that — that is most attacked with censorship.

Warren E. Burger:

Now, let’s take that last two hypothetical you gave, suppose a city had an ordinance that it would grant licenses permits for parades, for people in noncommercial categories that is to advertise their views on war or public health or whatever.

But that they would not allow any parade permits to advertise soap, and beer, and whatnot, would that be a reasonable classification of the use of a public area?

Thomas R. Asher:

Well, this Court has certainly suggested that in terms of — in — in cases such as Valentine and Breard.

Warren E. Burger:

Well, haven’t — haven’t they made — hasn’t the FCC made a classification here?

Thomas R. Asher:

Yes, but it’s an inverse classification.

Warren E. Burger:

Yes.

I noticed.

Thomas R. Asher:

Instead of — instead of saying —

Warren E. Burger:

I noticed.

But they’ve made — they’ve have made a classification on — and once you get over the hurdle of whether this is governmental action, you still have to demonstrate this is an unreasonable and impermissible classification.

Do you not?

Thomas R. Asher:

I think we do.

But I think — I think that — that the classification is unreasonable and impermissible on its face, unless this Court is prepared to state that somehow or rather it’s permissible for — for a governmentally operated form to say, “Commercial speech would be permitted and — and political speech will not.”

And every single time this Court has been addressed with that question.It is answered — it is answered in the negative —

Warren E. Burger:

Well, it hasn’t done quite that though, has it?

It — it has the governmentally license entity here as merely said that the political speech will be allowed just during political campaign, so you have another classification.

Thomas R. Asher:

Oh we have numerous classifications but — that we will allow political speech by political parties to raise money, we won’t allow it for other purposes, which — which in a way touch — touches upon another unreasonable aspect of — of the entire scheme that seems to be evolving here.

Notably, we start out with — with what we — what presumably would be a neutral approach to — to marketing advertising time and immediately, the neutrality is removed by saying, “Controversial speech is going to be let out.”

It’s going to be excluded.

So the — we slip from neutrality of time, place, and manner at least as — which has been held permissible in — in numerous cases into an unneutral area which — which is invidious.

It — it excludes political speech and permits commercial speech, free roam, free reign within that airtime.

And if not free reign of some controls or exercise, at least an opportunity to speak and that’s all that we seek here and nothing more.

Thurgood Marshall:

Mr. Asher, when the States involve — they put up the overwhelming state interest, what did the broadcasted agencies put up as their overwhelming interest with it?

Thomas R. Asher:

Well, we’ve been — we’ve been hard-pressed to try to find any — any of the interest that have been — been asserted by the broadcasters that — that can be regarded as overwhelming.

One — one is the danger that perhaps the rich will — will buy up the time and somehow set the agenda of debate.

Thurgood Marshall:

Regulating their own time?

Thomas R. Asher:

I beg your pardon.

Thurgood Marshall:

Regulating their own time.

Thomas R. Asher:

The broadcasters regulating their own time?

Thurgood Marshall:

Yes.They only have 24 hours in a day.

Thomas R. Asher:

That’s right.

Thurgood Marshall:

Yes.

Thomas R. Asher:

And — and no — no one is questioning the broadcasters’ right to regulate it in term of saying, “We’re going to market so much to sell to others.

We’re going to keep so much for ourselves to say what we want to.”

Were just talking about that time (Voice Overlap) —

Thurgood Marshall:

Then your only point is that you’re restricted because it’s controversial?

Thomas R. Asher:

That’s right.

That’s the only ground on which we were kept out.

Thomas R. Asher:

If you look at the policy that was — of — of WTOP Radio Station on which the business executive group was excluded, the only ground on which it was excluded was the controversiality of its message.

No other ground or whatever and strictly that narrow discrimination that we’re talking about.

That number of — of what I would regard as false horrors have been paraded to the Court as to what might happen if it were acknowledged that there is no right not to discriminate.

No.

I’m sorry, no right to discriminate or a right to be required not to discriminate.

One — somehow or other that the rich might buy up all the time, I think that that’s the best speculative danger of — because we — if — if we look at the nature of — of editorial advertising in the newspapers, we find it for the most part, editorial advertising is utilized by disadvantaged groups that somehow or other feel their views have already been excluded.

The — the rich on the other hand are not monolithic by any means and if General Motors in fact, decided that rather than — than trying to sell cars it was going to use all the time it could buy up to talk about political issues.One that would run completely counter to the situation we see in — in the newspaper area where we find very little politicizing by — by commercial interest.

Secondly, that — that subject wasn’t briefed to this Court.

But thirdly, even if it were done, even if — if corporations utilized advertising time to address issues rather to simply demerits of products is that necessarily and undesirable First Amendment consequent so long as we have the Fairness Doctrine to assure that there is balance.

Now, another one of the dangers that’s been advanced is that somehow or other the Fairness Doctrine will be wrecked if we have it — have a — a requirement that editorial speech not be excluded from advertising time.

And again, there’s no basis or whatever for reaching this conclusion.

Numerous stations is acknowledged by the broadcasters already carried editorial advertisements.

None of them have come forward to say that somehow or other as a result of our doing this we’re about to go under, we’re being swamped.

The Cullman Doctrine which requires that broadcasters give free time for response only comes about in two circumstances.One, where a controversial — or three circumstances — controversial issue of public important isn’t — has not been dealt with fairly by the broadcaster, where there’s an imbalance in the broadcasters’ program.

And one of the cigarette cases that the FCC has held an 8-to-1 balance of pro cigarette to anti cigarette advertisements is reasonable.

So the broadcasters have tremendous latitude in which to determine what is balanced.

Secondly, no one is paid to come forward to put on the other side.

And thirdly, the broadcaster in his own programming is not in one way or another elected to present the other side only in those circumstances, must they give time free to someone to present an alternative view point?

Now, remember, we’re — we’re not talking about every issue in the world, we’re talking about issues that are both controversial and of public importance.

Notably, those issues which not only the Fairness Doctrine applies to but — but are specifically excluded under the flat ban policy that we asked to this Court to declare unconstitutional.

Now, if an issue is both controversial and of public importance, presumably a broadcaster if he’s fulfilling his Fairness Doctrine obligation is already going to be covered — covering that issue.

It’s very unlikely that letting on a particular spokesman is going to throw this programming into imbalance and the facts of the BEM case indicate that.

WTOP has argued that it has presented both sides of the war in — in extreme balance.

Keeping in mind the eight to one ratio that the Commission has held to be reasonable selling three or four minutes to one group or another group to express their views on the issue to supplement what the broadcasters already put on in news time.

He’s not going to throw his programming into imbalance.

The one place in which — in which we might find a problem, the broadcaster being faced with either an economic burden under the Fairness Doctrine or — or encourage it upon his discretion as to what issue should be covered is where a new issue comes up.

Or at issue that the broadcaster for one reason or another, even though its controversial, and even though it’s a public importance, a broadcaster is elected not to put on the air.

And some member of the public feeling that it’s so important has gone forth with his money and paid the money, and bought time, and raised that issue, then, the broadcaster obviously not having covered it.

Probably, he’s not been fulfilling his Fairness Doctrine obligation.

He may have overlooked the issue.

Thomas R. Asher:

And so, in furtherance of First Amendment objective of what — of robust wide open debate, a new issue would have been brought to public attention, and how the broadcaster deals with it need not impose any great economic burden.

Primarily, the broadcaster will deal with that issue by either dealing with the news time; perhaps another member of the public will come forward and buy time to present — present the other side.

But in any event, the broadcaster is going to be subjected to no burden that he — he’s not — he’s not already required to address under — under the Fairness Doctrine because we’re only talking about controversial issues and public importance.

We’re not talking about those kinds of issues which the broadcaster somehow or other suggest they should — they should exclude.

One of the broadcasters suggest that trivial issues might be excludable.Well it’s trivial but it’s not controversial and of public importance.

We’re only talking about the burning issues of the day, those very issues that the broadcaster must address in his programming time under the Fairness Doctrine and must address with balance.

I think that — that I’ve — I’ve covered pretty much those areas that — that were not covered by Mr. Califano.

Except to suggest that — that the question of programming time as far as we’re concerned in the context of this case, must be looked at very narrowly.

Notably, if a broadcaster regularly markets programming time to others, then again, it would be invidious to say, “I’ll market it to you if you want to talk about a commercial subject but not about a controversial one.”

On the other hand, if a broadcaster markets only spot advertising time, which is — which is the case in — with the number of broadcasters then that’s what we’re talking about.

And we’re saying, “That’s what he can’t discriminate.”

But nonetheless, the basic question is discrimination and basic judgment is the broadcasters as to what he is going to subject to — what — what type of time he is going to put up for sale.

When he puts time up for sale, then he is to be held the requirement that he need — that he not discriminate invidiously between that which is controversial and that which is not.

Thank you.

Warren E. Burger:

Thank you Mr. Asher.

Thank you gentlemen.

Mr. Wilkinson, you have seven and a half minutes.

Vernon L. Wilkinson:

Mr. Chief Justice, may I please the Court.

Questions were asked to counsel for DNC.

On what section is the Communications Act, they were relying it has been violated by the Commission’s decision.

In that connection, I would like to call to this Court’s attention to emphasize that on these four occasions, Congress has had opportunities to prescribe a right of access for the presentation of contrasting views on controversial issues and each instance has refused to go that far.

First of all that the Radio Act of 1927 was referenced to candidates for public office.

They did put in a provision which was carried over again when the Act was reenacted as Communications Act of 1934.

That time has made available by the broadcaster to one candidate.

He must likewise make available time to other candidates for the same office.

But the statute went on — the statute immediately went on with (Inaudible) to this effect.

No obligation is imposed upon any licensee to allow the use of its station for any such candidate.

That was the provisions up until 1959, except for the standard of public interest and the report on editorializing in 1949.

However, in 1959, after the Lar Daly episode, Congress restricted still further, this equal time requirement even for candidates by eliminating bona fide a newscast, by eliminating bona fide news interviews, bona fide documentaries, and on the spot coverage bona fide news events.

Now, we come in next to the — the Campaign Expenditure Act of 1971 which became effective April 7, 1972, but Congress provided that licensees could be revoked for willful or repeated failure to allow reasonable acces to or to permit purchase of reasonable amount of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office.

Vernon L. Wilkinson:

Federal only, not State.

Now, you all notice that they use the word “or” either access of permit purchase of reasonable time.

It doesn’t say purchase and purchase their reasonable time.Congress was perfectly familiar after 1959 and after this Court’s decision in Red Lion.

That broadcaster was under an obligation to see that all sides of controversial issues were presented.

And therefore, the stations are under a duty to provide time either free of charge or on a paid basis and that is a policy which most of the — the three networks for the most part have followed, with reference the controversial issues.

We present the time free.

Now, Congress — the Commission has gone further after the expenditure — the Campaign Expenditure Act was enacted.

Question was asked by Meredith Publishing Company which owns several television stations and radio stations.

Can we continue our policy under that statute?

I’m making time available free only to candidates and not selling time and thereby keeping a complete balance, and not the richest candidate getting more spots, and the poorest candidate being (Inaudible) only by one spot, because on time for sale for — for candidates for public office, the Fairness Doctrine as I understand is not directly applicable.

The Commission held that Meredith Publishing Company could — could continue to make time available on a free basis and not be required to sell time for — for campaign purposes.

And that’s even and — I think that we have therefore an a fortiori situation when we get into the subject of controversial issues.So we do not have here a question of selling time to the commercial advertising, and refusing to sell time for the person who wants to expose ideas.

We sell time to the commercial advertiser to advertise his product.

We give time for the presentation of controversial issues.

Thurgood Marshall:

But you didn’t give time here, did you?

Vernon L. Wilkinson:

We have given —

Thurgood Marshall:

Did you gave time in these cases here?

Vernon L. Wilkinson:

I thought in response to this particular request that there is no complain by the DNC.

Thurgood Marshall:

Well, I — I don’t understand your argument, you give somebody else time, but you wouldn’t give them time.

Vernon L. Wilkinson:

We — we have give DNC time on occasion, on the ABC Network, yes.

We did not the response to this particular request.

And much — much emphasis placed on United Broadcasting Company case in 1945 by the respondents.

The Commission was groping with this Fairness Doctrine.

It’s true there’s some mention made of it in — back in 1929.

Generalizations, but it was not until a report on editorializing in 1949 that the Commission finally expounded his Fairness Doctrine in a much the same form than it is at present except for the additional provisions about, first, to attack rules and matters of that kind.

We do not consider United Broadcasting Company case, so therefore as controlling in view of the 1941 report on editorializing and the Fairness Doctrine itself as announced by the Commission.

And I would like therefore to call to the Commission’s attention — to the Court’s attention as a more authoritative pronouncement than the United Broadcasting Company case, a decision by a different panel of this Circuit Court of Appeals for the District of Columbia both before this case was resolved and after this case was decided.

Where they say, “We believed DNC’s position to be fallacious and point to our recent decision in Green v. FCC where we state that no individual or group has a right of access to the air.

So licensees may exercise their judgment as to what material is presented and by whom.Certiorari was denied on that case a week ago today.

I see that I have — my time has expired.

Vernon L. Wilkinson:

Thank you.

Warren E. Burger:

Thank you Mr. Wilkinson.

Thank you gentlemen.

The case is submitted.