FEDERAL COMMUNICATIONS COMMISSION, APPELLANT v. LEAGUE OF WOMEN
VOTERS OF CALIFORNIA, ET AL.

   No. 82-912

   In the Supreme Court of the United States

   October Term, 1982

   On Appeal from the United States District Court for the Central
District of California

   Brief for the United States

                       PARTIES TO THE PROCEEDING

   The parties in the district court, in addition to those in the
caption, were the Pacifica Foundation and Congressman Henry Waxman.

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   Summary of Argument
   Argument:
      Section 399's prohibition against "editorializing" is a
      permissible regulation of public broadcasting stations
      receiving grants from the Corporation for Public Broadcasting.
      I. Congress has power to establish and finance a public
          noncommercial and educational broadcasting system and to
          require that subsidized stations licensed as part of
          that system refrain from direct editorializing and
          political electioneering.
          A. The public broadcasting system was publicly
             created and is publicly supported to be a community
             resource.
          B. Congress enacted and retained the prohibition of
             Section 399 in order to maintain the independence of
             subsidized public broadcasting from government
             influence and to serve other important First
             Amendment purposes.
          C. This Court has consistently recognized that the
             special character of broadcasting justifies special
             regulations designed to preserve the public interest
             in diversity and fairness in broadcasting.
          D. The bar on editorializing and electioneering is an
             essential element of the congressional plan to
             create and finance a public broadcasting system
             devoted to public, not private, purposes.
          E. The free marketplace of ideas is not substantially
             inhibited by Congress's decision that owners and
             managers of public stations should not have a
             privileged voice.
      II. Congress has power to determine that it will not subsidize
          private editorializing and electioneering
   Conclusion
   Appendix

                             OPINION BELOW

   The opinion of the district court (J.S. App. 1a-20a) is reported at
547 F.Supp. 379.

                             JURISDICTION

   The judgment of the district court (J.S. App. 21a-22a) was entered
on August 5, 1982.  The notice of appeal (J.S. App. 23a) was filed on
September 3, 1982.  On October 26, 1982, Justice Rehnquist extended
the time for docketing an appeal until December 1, 1982, and the
appeal was docketed on that date.  On February 28, 1983, the Court
postponed further consideration of the question of jurisdiction to the
hearing on the merits.  The jurisdiction of this Court rests on 28
U.S.C. 1252.

   We addressed the question of this Court's jurisdiction in the reply
brief filed in response to appellee's motion to dismiss or affirm and
have little to add to it.  We stress here the following three
fundamental points.  First, 28 U.S.C. 1252, on which appellate
jurisdiction rests, was enacted to ensure a "prompt determination by
the court or last resort of disputed questions of the
constitutionality of acts of the Congress" (H.R. Rep. No. 212, 75th
Cong., 1st Sess. 2 (1937)).  The section therefore carefully specifies
that appeal may be taken from "an interlocutory or final" order (28
U.S.C. 1252;  emphasis added).  /1/ Appellees' argument would defeat
that intent by delaying such litigation until the wholly unrelated
question of attorneys fees is resolved in the lower court.  Second,
appellees in this case were not in any way prejudiced by the timing of
the filing of the August 16 motion regarding attorneys fees or the
notice of appeal.  Third, the issue still pending in district court --
the award of attorneys fees -- is completely separate from the
constitutional question raised in our appeal, and there is accordingly
no sensible reason why resolution of the constitutional question
should await the lower court's disposition of the matter of attorneys
fees.

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   The constitutional and statutory provisions involved are set forth
in the attached Appendix, infra, 1a.

                          QUESTION PRESENTED

   Whether 47 U.S.C. 399, which prohibits "editorializing" by
noncommercial educational broadcasting stations that receive grants
from the Corporation for Public Broadcasting, violates the First
Amendment.

                               STATEMENT

   This case raises the question whether Congress's considered
judgment, that noncommercial educational broadcast stations receiving
federal government subsidies should be prohibited from editorializing
and from partisan participation in political elections, is
constitutionally permissible.

   Congress's judgment is embodied in 47 U.S.C. (Supp. V) 399, as
amended by the Public Broadcasting Amendments Act of 1981, Pub. L. No.
97-35, Title XII, Section 1229, 95 Stat. 730, which prohibits those
noncommercial educational broadcasting stations that are subsidized by
grants from the Corporation for Public Broadcasting ("CPB" or "the
Corporation") from "editorializing" and from "support(ing) or
oppos(ing) any candidate for political office."

   Congress made it clear in enacting this provision that its
intention was not to restrict the airing of controversial or political
programs but only "editorials representing the opinion of the
management of (the) station" (H.R. Conf. Rep. No. 794, 90th Cong., 1st
Sess. 12 (1967)).  Accordingly, the Federal Communications Commission
has construed the term "editorializing" to mean only the "use of
noncommercial educational broadcast facilities by licensees, their
management or those speaking on their behalf for the propagation of
the licensees' own views on public issues * * *" (In re Complaint of
Accuracy in Media, Inc., 45 F.C.C.2d 297, 302 (1973) (emphasis
added)).  Subsidized public stations -- like all other stations --
remain free to air programs espousing views on all matters of public
concern, whether political or nonpolitical, partisan or nonpartisan,
so long as it is "made clear that the editorials are not made on
behalf of the licensee or its management" (J.A. App. 8a).  /2/

   As originally enacted in 1967, Section 399 applied to all
noncommercial broadcasting stations.  In 1978, the Senate defeated a
proposal to limit the provision to stations "licensed to any
governmental agency or instrumentality." /3/ In 1979 appellees -- the
Pacifica Foundation, the League of Women Voters, and Congressman Henry
Waxman -- brought this suit in the United States District Court for
the Central District of California challenging the constitutionality
of Section 399.  /4/ Pacifica is a nonprofit, tax-exempt corporation
that owns and operates noncommercial radio stations in five major
cities:  New York;  Los Angeles;  Washington, D.C.; Berkeley,
California;  and Houston.  /5/ Following various procedural and
jurisdictional complications, /6/ the government urged the court to
uphold the constitutionality of the statute at least insofar as it
applied to publicly-funded stations.  /7/ While the suit was pending,
Congress amended the prohibition against editorializing to apply only
to those stations that receive CPB funds.  Appellees then amended
their complaint and abandoned their attack on the portion of the
statute forbidding public broadcasters to endorse political
candidates;  the sole remaining claim was that the ban on
editorializing violates the Constitution (J.S. App. 5a).

   The district court granted summary judgment in favor of appellees
(J.S. App. 21a-22a).  It did so on the premise (id. at 11a) that
"Section 399 can survive scrutiny under the First Amendment only if it
meets the standard generally used in First Amendment cases, that is,
that it serves a compelling government interest and is narrowly
tailored to that end." Observing that "regulations such as Section 399
are presumptively unconstitutional" (ibid.), the court held that
Section 399 was not supported by any compelling government interest
(id. at 12a-18a).

   The court rejected the contention (J.S. App. 11a) that "Section 399
serves a compelling government interest in ensuring that funded
noncommercial broadcasters do not become propaganda organs for the
government." The court (id. at 12a-13a) considered Congress's fear of
undue government influence resulting from federal funding to be
unfounded because "CPB funding in 1977 did not constitute more than
approximately 25%" of the budget of the average station receiving such
aid and because the amount of CPB funding was being reduced.  The
court also concluded (id. at 13a-14a) that Congress's fear was
unfounded because the CPB "is an independent, nonprofit, private
corporation";  its "funding decisions are based on objective,
nondiscretionary criteria";  and the "fairness doctrine" /8/ prevents
broadcasters from presenting "one-sided political propaganda." The
court rejected (id. at 15a) the government's contention that
"restrictions on editorializing are necessary to ensure that
government funding of noncommercial broadcast stations will not
interfere with the balanced presentation of opinion on those
stations," concluding (id. at 17a) that "(t)he protections offered by
the fairness doctrine effectively eliminate any substantial danger of
'unbalanced' programming." /9/

                          SUMMARY OF ARGUMENT

   This case presents the question whether 47 U.S.C. 399, which
prohibits "editorializing" and "support(ing) or oppos(ing)" political
candidates by noncommercial broadcasting stations that receive federal
subsidies from the Corporation for Public Broadcasting, violates the
First Amendment.  The term "editorializing" means the expression of
views directly by or on behalf of the station's management;  the
statute does not otherwise restrict expression and in no way prevents
controversial public affairs programming.

                                   I

   The cardinal teaching of this Court's cases involving freedom of
expression in broadcasting is that broadcasting is a special national
resource, and that the validity of any challenged regulation must be
decided in the context of its unique characteristics and problems.
Given the special character of noncommercial -- "public" --
broadcasting, Section 399 is plainly constitutional.

   A. Public broadcasting is the product of a national commitment,
financed by government, to create broadcast services not provided by
the private sector.  It operates on scarce and valuable television and
radio channels reserved by government for noncommercial use.  The
federal government provides large subsidies to public broadcasting for
construction of facilities, for production of programs, and for
station operations.  It also provides critical tax subsidies to
tax-exempt noncommercial stations.  State and local governments also
provide substantial subsidies.  Direct government subsidies total 59%
of public television income and 67% of public radio income.

   Units of government and government instrumentalities own more than
two-thirds of all public television stations and approximately
three-fifths of all public radio stations.

   Public television and radio are, in sum, inextricably entwined with
government.  Created and sustained in order to promote excellence and
diversity in broadcasting, they were designed as a community resource
-- not a private vehicle -- to be supported by all and to serve all.

   To ensure that public broadcasting fulfills its public mission, it
is subject to special restrictions.  Public stations may not sell time
or accept advertising.  They may not operate for profit, may not
support or oppose political candidates, and are subject to special
rules of financial disclosure, accounting, and employment practices.
Congress also has enacted special measures designed to see that public
stations broadcast educational and cultural programs, meet the
educational and cultural needs of their communities, and maintain
strict objectivity and balance in controversial programs and series.

   B. Congress has repeatedly manifested its judgment that the public
broadcasting system can achieve its purposes only if it refrains from
direct partisan interventions in the political arena.  More
particularly, the legislative history of Section 399 demonstrates
Congress's judgment that allowing owners and managers to use public
stations to editorialize and electioneer would invite government
pressure;  would unfairly devote public moneys to the propagation of
private views;  would place an official imprimatur on certain views
while disfavoring others;  and would jeopardize the broad support that
public broadcasting needs.

   C. This Court's decisions leave ample space for that congressional
judgment.  The Court has recognized that, in view of broadcasting's
special characteristics, the First Amendment permits -- indeed, is
served by -- regulations to insure diversity and fair balance in the
use of that medium.  Thus, while the right of the print media to be
partisan is virtually unlimited, this Court has upheld significant
limitations upon the right of all broadcasters to serve private and
partisan ends.

   D. Public stations constitute a publicly-supported educational and
cultural resource for the entire community;  their purpose is not to
become outlets for the propagation of specific private views.  If such
stations were permitted to editorialize or electioneer, they would
become inviting targets for narrowly based groups hoping to acquire a
powerful voice at public expense.  And embroilment in partisan
political controversies could distract licensees from their public
mission and threaten the public support educational broadcasting needs
to maintain its independence, its privileged status, and its financial
health.

   The ban on editorializing also insulates public stations against
pressure to become instruments of government propaganda.  Government
holds the purse-strings, supplying more than 60% of public
broadcasting income.  It owns the majority of public stations.  The
danger of government control is, therefore -- as Congress has
repeatedly found -- formidable, and justifies Section 399's protective
shield.

   The prohibition against editorializing also protects First
Amendment values by preventing the use of tax funds to promote private
views with which many taxpayers may disagree.  "A system which secures
the right to proselytize * * * must also guarantee the concomitant
right to decline to foster such concepts.  Wooley v. Maynard, 430 U.S.
705, 714 (1977).

   E. The ban on editorializing interfers only minimally with the free
marketplace of ideas.  It only prohibits the privileged use of public
stations for "official" expressions of opinion by or on behalf of
station owners and management.  Public broadcasting in fact provides
excellent public affairs programming on which a lively and diverse
range of views is expressed on many controversial issues.  And station
owners and managers -- like the rest of the public -- remain free to
express their views by all other means.

                                  II

   Section 399 is also constitutional because it represents a valid
exercise of Congress's Spending Power.  Section 399 does not prevent
licensees of public stations from expressing their opinions.  It
simply provides that the government will not pay for it.

   For First Amendment purposes, Section 399 is indistinguishable from
Section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C.),
which grants a subsidy in the form of tax exemption only to those
nonprofit organizations that do not devote a substantial part of their
activities to lobbying or propagandizing.  In Regan v. Taxation With
Representation, No. 81-2338 (May 23, 1983), this Court unanimously
upheld that measure.  The Court found that Section 501(c)(3) does not
prevent any organization from exercising its First Amendment rights
but merely represents Congress's refusal to pay for those activities
out of public funds.  The provision at issue here is constitutional
for precisely the same reason.

   Section 399 is readily distinguishable from situations in which it
was held that government improperly denied a person a benefit because
he exercised a constitutional right.  The measures held
unconstitutional in those cases were content-based restrictions
adopted to restrain speech rather than to insure that government funds
were used for public purposes.  In contrast, Section 399 is a
content-neutral regulation designed to assure that public funds do not
go to subsidize private political and ideological activity.

                               ARGUMENT

         SECTION 399's PROHIBITION AGAINST "EDITORIALIZING" IS

         A PERMISSIBLE REGULATION OF PUBLIC BROADCASTING

         STATIONS RECEIVING GRANTS FROM THE CORPORATION FOR

         PUBLIC BROADCASTING

 I. CONGRESS HAS POWER TO ESTABLISH AND FINANCE A PUBLIC NONCOMMERCIAL
AND EDUCATIONAL BROADCASTING SYSTEM AND TO REQUIRE THAT SUBSIDIZED
STATIONS LICENSED AS PART OF THAT SYSTEM REFRAIN FROM DIRECT
EDITORIALIZING AND POLITICAL ELECTIONEERING

   This case concerns Congress's power to regulate educational
noncommercial broadcasting stations receiving federal government
subsidies.  It is not a coincidence that these stations are often
referred to as public broadcasting stations, and that together they
constitute the public broadcasting system.  The very existence of this
sort of broadcasting is a product of a national commitment, financed
by government funds, to create and sustain broadcast services and
programs of a sort not provided by the private, commercial sector of
the broadcast industry.  Public broadcasting stations exist in order
to serve as a special community resource -- not in order to benefit
their owners, either by enriching them or by giving them special power
and influence.

   Ever since Congress undertook a serious national program to create
and sustain a public broadcasting system, it has manifested its
considered judgment that the system can achieve its purposes only if
it remains, in some sense, nonpartisan and nonpolitical.  This
judgment is an integral part of the scheme that Congress set on foot
when it created and funded the system.  The judgment is manifested in
the provision at issue in this case, which in effect provides that the
owners and managers of federally-funded noncommercial educational
stations may not use those stations to engage in direct partisan
interventions in the ideological and political arena.

   The district court's decision, invalidating this provision,
seriously interferes with the congressional plan for public
broadcasting.  It simply sets aside Congress's judgment that allowing
public stations to editorialize would interfere with the rendering of
the services they were designed to provide.  And it flatly overrules
Congress's judgment that public broadcasting must be protected from
the political pressures that would be evoked by partisan interventions
into the political and ideological arena.

   The district court's decision also ignores the central lesson of
this Court's decisions about the meaning of the First Amendment in the
context of broadcasting.  That lesson is that broadcasting as a whole
is a special national resource, the wise use of which requires and
justifies governmental umpiring of a sort that may be inappropriate --
because inapposite -- in other contexts.  The cardinal teaching of
this Court's broadcast cases is that the validity of Congress's
regulatory judgments must be decided contextually, in the framework of
an understanding of the special problems and promises of this medium
-- rather than on the basis of a wooden application of abstract rules
derived from other settings.  This principle should, of course, be
seen as even more telling when the subject of regulation is public
broadcasting, which depends so heavily on a public judgment to reserve
space for and fund specific kinds of broadcast services.
Nevertheless, the district court dealt with Section 399 without
reference to context, as if it were any other statute "restricting the
discussion of public issues" (J.A. App. 9a).

   This Court has decided numerous and well-known cases involving
commercial radio and television, and is fully familiar with that
industry and with the doctrines defining the permissible scope of its
regulation.  By contrast, the Court has decided few cases involving
noncommercial broadcasting and has not had occasion to define the
extent to which government may regulate its activities in light of its
special history, character, and needs.  We believe that understanding
Section 399 and the role it plays in effectuating the congressional
plan for public broadcasting requires an understanding of how this
part of the broadcast universe developed, how it is sustained, and by
whom it is controlled.  We therefore open this part of our brief with
an account of the public broadcasting system ("A").  We then outline
the history of Section 399 and sketch the legislative materials that
cast light on its purposes ("B").  Part "C" shows that this Court's
cases provide a doctrinal framework that gives ample space for Section
399.  Part "D" then provides a detailed analysis of the significant
public purposes that justify that provision.  We conclude in Part "E"
by demonstrating that the effects of Section 399 in restraining speech
are minimal.

   A. The public broadcasting system was publicly created and is

      publicly supported to be a community resource /10/

   The public broadcasting system developed haltingly over the first
50 years of its existence.  It assumed its present form when Congress
made a major national commitment by enacting the Public Broadcasting
Act of 1967, Pub. L. No. 90-129, 81 Stat. 365, 47 U.S.C. (& Supp. V)
390 et seq.

   1. Educational institutions have operated radio stations since
1919.  /11/ By 1934, the Federal Radio Commission had issued nearly
300 licenses to educational institutions.  Most of these licensees
had, however, met insuperable financial difficulties and had assigned
their licenses to commercial stations;  /12/ only 2% of outstanding
licenses were held by noncommercial stations.  /13/

   In 1934, Congress passed the landmark Communications Act.  In
connection with that Act, Congress considered whether to reserve 25%
of all AM radio facilities for stations operated by nonprofit
organizations.  See 78 Cong. Rec. 8828-8829 (1934).  Congress decided,
however, not to deal with this matter by legislation;  rather, the
issue was left to the FCC.  The Commission, in turn, conducted
hearings but determined not to act (FCC Report Pursuant to Section
307(c) of the Communications Act 5 (1935)).

   After the Second World War, the Commission recognized that
noncommercial broadcasting could not flourish without special
protection.  In 1945, therefore, it decided to allocate 20 FM radio
channels exclusively for educational use.  /14/ More important, in
1952 -- before the first educational television station went on the
air /15/ -- the Commission reserved 242 television channels for
educational broadcasting, including 80 on the VHF band.  /16/ The
critical importance of this step cannot be exaggerated.  Without it,
there is little doubt that virtually all of the scarce and lucrative
VHF channels in major markets would have been occupied by commercial
broadcasters.  /17/ (The UHF band was relatively insignificant until
after 1962, when Congress required that all new sets be capable of
receiving both VHF and UHF.  /18/ And even today, UHF outlets continue
to be much less desirable than VHF stations).  /19/ As a result of the
reservations, VHF educational stations came into existence in those
major cities (e.g., Boston, Chicago, San Francisco) where channels
were still available.  /20/

   Despite the reservation of special channels, educational
broadcasting developed slowly.  By the mid-1950's, less than half of
the reserved television channels had been applied for.  Many of these
unactivated channels were in communities that could support additional
commercial outlets.  /21/ The Commission therefore began deleting
certain unactivated educational reservations.  /22/

   In 1962, there were only 54 educational TV stations on the air;
two-thirds of the population had no access to educational television.
S. Rep. No. 67, 87th Cong., 1st Sess. 3 (1961).  A Senate report
(ibid.) attributed this slow progress to the fact that "the problem of
fundraising has seemed almost insurmountable in spite of almost
herculean efforts on the part of many of our leading educators and
civic leaders." The report also concluded (ibid.) that "once a station
has been built, State legislatures, local educational systems, and
local communities raise the funds to produce the programming and
operate the stations." Congress therefore enacted the Educational
Television Facilities Act of 1962, Pub. L. No. 87-447, 76 Stat. 64,
which authorized $32 million over five years to aid the construction
of educational stations.  By 1967 when this program expired, 126
educational stations were operating.

   In 1967, a Carnegie Corporation Commission created to study
educational broadcasting found that there were too few stations and
that those in existence were "inadequately staffed, inadequately
equipped, and inadequately financed.  Deficiencies affect the entire
system * * *." Carnegie I, supra, at 33 (see note 10, supra).  The
Commission recommended creation of a federally-chartered "Corporation
for Public Television" to provide support for noncommercial
broadcasting, including funding for program production, and the
establishment of "interconnection" facilities to permit nationwide
broadcasting of noncommercial programs (id. at 36-41).  The Commission
also recommended that federal funds be distributed to stations to
support their general operations, and that a new federally-funded
facilities program be started (id. at 74-80).  To finance these
measures without subjecting public broadcasting to political
pressures, the Commission recommended a dedicated federal excise tax
on the sale of all television sets (id. at 68-73).

   2. The most importnat event in the history of noncommercial
broadcasting was the enactment of the Public Broadcasting Act of 1967,
Pub. L. No. 90-129, 81 Stat. 365, 47 U.S.C. (& Supp. V) 390 et seq.
Sponsored by President Johnson and incorporating most of the
recommendations of the Carnegie Commission, this statute created the
public broadcasting system of today.  Title I provided new
construction grants.  Title II created the Corporation for Public
Broadcasting, a nonprofit, government-chartered corporation governed
by a 15-person board of directors appointed by the President with the
advice and consent of the Senate (see 47 U.S.C. (& Supp. V)
396(b)-(f)).  The Corporation was authorized to make grants to
stations, to fund the production of programs, and to assist in the
establishment and development of interconnection systems (47 U.S.C.
(Supp. V) 396(g)), such as the subsequently created Public
Broadcasting System.  /23/ Departing from the Carnegie Commission
recommendation, Congress accepted President Johnson's proposal that
the Corporation's funds be drawn from general revenues until the
question of financing could be studied further.  /24/ This method of
financing has in fact been retained (see 47 U.S.C. (Supp. V) 396(k),
as amended by Pub. L. No. 97-53, Title XII, Section 1227, 95 Stat.
727).

   Congress's purpose in creating the new broadcasting system was
lofty.  Public broadcasting was to provide a diversity of educational,
cultural, and public affairs programming that commercial stations had
failed to furnish.  During the late 1950s and 1960s, there was concern
that commercial television had settled into a disappointing pattern.
/25/ Public broadcasting, in addition to serving its traditional
instructional functions, was to provide a space where excellence and
diversity could flourish.  It was to educate, broaden, challenge,
enlighten, and at times disturb;  it was to make history and science
and great works of art accessible to a huge new audience.  Its goal
was not to create a privileged outlet for particular tastes or views,
but rather to expand and diversify the audience's experiences.  /26/

   To achieve these objectives, Congress could of course have created
a federally owned and operated broadcasting network, such as the BBC.
Had it done so, it unquestionably could have insisted that the network
refrain from editorializing and maintain strict political neutrality.
"Government is not restrained by the First Amendment from controlling
its own expression." CBS, Inc. v. Democratic National Committee, 412
U.S. 94, 139 n.7 (1973) (Stewart, J., concurring);  see also T.
Emerson, The System of Freedom of Expression 700 (1970).  However,
partly because of fear of the enormous power that a federally-owned
network could wield, /27/ Congress adhered to the tradition of not
creating federally owned stations and chose instead to furnish
assistance to noncommercial stations owned and controlled by others.
But in order to make sure that public broadcasting would remain true
to its mission, it was subjected to certain special restrictions and
obligations.  Most important, public broadcasters were prohibited from
selling air time for any purpose whatever -- including selling time
for political or public affairs presentations.  /28/ Public
broadcasting stations were required to be government entities or
nonprofit organizations (47 U.S.C. (Supp. V) 397(5) and (7)).
"(E)ducational television or radio programs" were defined by the Act
as "programs which are primarily designed for educational or cultural
purposes" (47 U.S.C. 397(9)), thereby limiting both the types of
programs that the Corporation could fund and the activities of the
stations it assisted (47 U.S.C. (Supp. V) 396(g)(2)(B) and (C)).  /29/
The Corporation was instructed to facilitate the development of a
public broadcasting system with "strict adherence to objectivity and
balance in all programs or series of programs of a controversial
nature" (47 U.S.C. (Supp. V) 396(g)(1)(A)).  /30/ In the provision at
issue here, noncommercial stations were forbidden to editorialize or
endorse or oppose political candidates.  Finally, stations receiving
CPB funds were made subject to audit by the General Accounting Office
(47 U.S.C. (Supp. V) 396(e)).  /31/

   The activities of noncommercial broadcasting stations are also
significantly restricted as a consequence of the fact that virtually
all of those not owned and operated by governmental entities are
qualified for tax exemption under Section 501(c)(3) of the Internal
Revenue Code (see 47 U.S.C. (Supp. V) 397(5) and (7)), and thus may
not devote a substantial amount of their activities to "carrying on
propaganda, or otherwise attempting, to influence legislation."

   The 1967 Act initiated a period of substantial growth in public
broadcasting.  The number of noncommercial television stations has
grown from 126 to more than 290;  /32/ the number of noncommercial
radio stations qualified for CPB grants from 73 to 238.  /33/ In
fiscal 1969, Congress appropriated approximately $9 million for the
CPB. Pub. L. No. 90-129, Title II, Section 201, 81 Stat. 367.  In
fiscal 1983, the figure was $172 million.  /34/ In 1969 public
television stations broadcast an average of 56 hours per week;  by
1981 that figure was 98.7 hours per week.  /35/

   Despite this growth, it is important to remember that public
broadcasting stations remain a scarce and valuable resource.  Most
major cities have at least three commercial television stations;  few
have more than a single public station.  /36/ There are still only 111
public VHF TV stations in the entire country, as compared with 527
commercial VHF stations.  /37/

   3. Public broadcasting's entanglements with and dependence on
government are abundantly clear.

   Funding.  In fiscal 1981, 60.4% of public broadcasting's total
income came from federal, state, or local government.  CPB, Public
Broadcasting Income Fiscal Year 1981, at 8 (1983).  The federal
government's contribution (25.2%) was the largest, followed by that of
state governments (18.8%), state colleges (10.6%), and local
governments (5.8%).  Ibid.  Public television, whose revenues dwarf
those of public radio, /38/ received 59% of its income from
government;  federal funds constituted 23.7% of total income.  Id. at
9.  Public radio derived 66.8% of its income from government;  31.7%
came from federal sources.  Id. at 10.

   In fact these figures understate governmental contributions to
public broadcasting.  In the year ending October 1981, more than 25%
of the CPB's television subsidies were devoted to funding television
program production and distribution.  CPB, Annual Report 1981, at
28-29.  These funds are, of course, indirect subsidies to stations
that would otherwise have to bear full production and distribution
costs.

   Other federal departments and agencies also finance the production
of television shows supplied to public stations at no cost or at less
than cost.  /39/ The Department of Education, which finances
production of such popular programs as Sesame Street and The Electric
Company, has determined that nearly one-fifth of the programs aired on
the average noncommercial station are produced with its funds.  /40/

   Private donations, which constituted 14.4% of public broadcasting
income in fiscal year 1981, /41/ are themselves governmentally
stimulated by the "matching fund" principle:  CPB appropriations are
based in part on the amount of nonfederal revenues received by public
stations.  /42/ Even more important, virtually all noncommercial
stations are exempt from federal tax, and contributions to those
stations are deductible for federal income, estate, and gift tax
purposes (26 U.S.C. 170(c), 2055(a), 2106(a), 2522(a) and (b)).  See
Regan v. Taxation With Representation, No. 81-2338 (May 23, 1983),
slip op. 3 ("Both tax exemptions and tax-deductibility are a form of
subsidy that is administered through the tax system.").

   Ownership.  More than two-thirds of the public television stations
now in existence are licensed to governmental entities.  /43/ Many are
licensed to state authorities or commissions whose members are public
officials or persons appointed by the governor with the approval of
the legislature.  /44/ Other licenses are held by counties,
municipalities, school boards, and public colleges and universities.

   The ownership of full-service public radio stations is also
dominated by government-affiliated entities.  Of the 262 stations
qualified to receive CPB assistance, 58% are licensed to such bodies.
/45/

   In sum, the entire noncommercial broadcasting system as it now
exists is, in a very special sense, public.  Without substantial
sustained public support it would never have developed, and without
that support it would almost certainly wither.

   B. Congress enacted and retained the prohibitions of Section

      399 in order to maintain the independence of subsidized public
      broadcasting from government influence and to serve other
      important First Amendment purposes

   The legislative history of Section 399 makes clear that Congress
recognized that the use of public stations for direct editorializing
and political endorsements would be incompatible with the public
broadcasting system that Congress sought to create -- a system
deicated to public purposes and sustained by public funds.  /46/
Direct partisan interventions would create a serious danger of
government propagandizing;  would unfairly devote public moneys to the
propagation of private views;  would place an official imprimatur on
some views while disfavoring others;  and would jeopardize the broad
support that public broadcasting needs for its independence and
financial health.  These concerns were not only expressed in 1967,
when Section 399 was enacted, but were reiterated in 1978, when a
proposal to narrow the statute was defeated, and again in 1981, when
Section 399 was amended so as to apply in part only to stations
receiving CPB grants.

   1. One of the dominant themes in the legislative history of the
1967 Act was that a viable system of public broadcasting must be
independent;  public stations are not to become government propaganda
organs.  Although Congress naturally focused primarily on the dangers
of federal control, concern was also expressed about control by other
governmental bodies.

   In recommending passage of the 1967 Act, President Johnson stressed
that "(n)on-commercial television and radio in America, even though
supported by federal funds, must be absolutely free from any federal
government interference over programming" (Special Message to the
Congress:  "Education and Health in America," 1 Pub. Papers 250 (Feb.
28, 1967)).  At the beginning of the Senate subcommittee hearings, the
chairman, Senator Pastore, stated:  "I intend to see * * * every
possible safeguard written into the legislation necessary to assure
complete freedom from any Federal Government interference." The Public
Television Act of 1967:  Hearings on S.1160 Before the Subcomm. on
Communications of the Senate Comm. on Commerce, 90th Cong., 1st Sess.
9 (1967) (hereinafter "1967 Senate Hearings").  A chorus of witnesses
and Senators echoed this view, /47/ and several witnesses expressed
concern about the adequacy of the bill's safeguards against such
interference.  The most important concern was that the administration
proposal did not provide for a dedicated tax to fund the CPB;
instead, it provided (at least initially) for funding from general
appropriations.  /48/ Concern was also expressed about the fact that
the members of the CPB board were to be appointed by the President.
/49/

   The Senate committee, in reporting favorably on the bill, stated
that the committee was satisfied that the bill would not lead to
"Government control or interference in programming" (S. Rep. No. 222,
90th Cong., 1st Sess. 11 (1967)).

   2. The House was equally concerned that government propagandizing
not infect public broadcasting.  It added Section 399 to the bill as
an additional safeguard.

   It is notable that, at the House hearings at which the ban on
editorializing and political endorsements was suggested, leaders in
the field of educational broadcasting themselves argued against these
practices.  Asked whether any of his member stations broadcast
editorials, the president of the National Association of Educational
Broadcasters replied emphatically:  "They have not, they do not, and
they will not." Public Television Act of 1967:  Hearings on H.R. 6736
and S. 1160 Before the House Comm. on Interstate and Foreign Commerce,
90th Cong., 1st Sess. 513 (1967) (hereinafter "1967 House Hearings").
See also id. at 416, 449, 596-597, 641, 731, 747, 804.  The director
of the New York City Broadcasting System, noting that his station was
directly answerable to the mayor, stated (id. at 731):  "If we were to
take an editorial position, it would necessarily have to be that of
the administration, and therefore we take none." The representative of
the Joint Council on Educational Telecommunications expressed concern
about "the control of the facilities so that (they do) not become the
implement of those who might use (them) to advance one political
philosophy or another in a biased manner." Id. at 623.  /50/ Another
witness stated that since public stations were "using, in many cases,
tax moneys," they had "a responsibility to the general public for the
expenditure of these funds" (id. at 514).  It was also noted that
editorializing might alienate public support (id. at 514, 596), and
jeopardize the stations' tax exempt status (id. at 514, 596, 641).

   Noting the testimony that educational stations did not editorialize
or wish to do so, the House report stated that the prohibition against
editorializing had been added "(o)ut of an abundance of caution" (H.R.
Rep. No. 572, 90th Cong., 1st Sess. 20 (1967)).  /51/ The House left
no doubt that its primary motivation was the concern, "shared by all
members of the committee," "that the proposed Corporation could become
an instrument for political propaganda" (113 Cong. Rec. 28383 (1967)
(remarks of Rep. Staggers, chairman of House Comm. on Interstate and
Foreign Commerce)).  /52/

   3. Congress reiterated the same concerns in 1978 when the Senate
defeated an Administration proposal /53/ to restrict the
editorializing ban to those stations "licensed to any governmental
agency or instrumentality" (S. 2883, 95th Cong., 2d Sess. Section
404(a) (1978)).  In a speech that elicited no disagreement, Senator
McClure recalled that Section 399 had been adopted to prevent
noncommercial broadcasting from becoming "a partisan political tool"
and because the CPB's bipartisan board of directors had not been
viewed as sufficient protection.  He noted:  "As we all know, there
have been instances when Public Broadcasting has been criticized for
exhibiting bias and a woeful lack of objectivity in its programming."
He stated that it was fundamentally unfair to use tax money to
propagate controversial private views and that editorializing would
jeopardize public broadcasting's "popular acceptance" and financial
support.  Finally, he observed that "public broadcasters are,
themselves, not unanimous or enthusiastic in their support for this
proposed change." 124 Cong. Rec. 30058 (1978).

   Senator Hollings touched on many of these points.  He stressed that
"we do not want a Government propaganda agency funded by the
taxpayers' dollars," and that "if we allow editorializing or
sponsorship of political candidates, it could be the death knell of
public broadcasting." 124 Cong. Rec. 30059 (1978).

   4. Finally, in 1981, the prohibition against editorializing was
amended so as to apply only to those stations receiving CPB grants.
This amendment had little practical significance.  In 1981, the last
year for which such figures are available, all public television
stations received CPB grants, as did 24 (or 90%) of the 238 qualified
radio stations.  CPB, Annual Report 1981, at 3-4.  The principal
result of the 1981 amendment was therefore to exempt those
noncommercial radio stations ineligible for CPB aid;  these are
generally small stations that have low-power transmitters, employ
fewer than five full-time employees, or broadcast fewer than 18 hours
per day.  /54/

   During the consideration of the 1981 amendment, Congress reaffirmed
its commitment to the purposes served by Section 399.  It was again
noted that the prohibition alleviated political pressure on publicly
funded stations and prevented their use for government propaganda.
/55/ The particular problems posed by government-owned stations were
also stressed again.  Referring to "the Denver television station * *
* owned by the local school board," Congressman Aylward observed:
"One can imagine the kind of conflicts the station would get into if
they were allowed to editorialize for candidates for public office."
/56/

   The impropriety of using tax dollars for partisan or ideological
proselytizing was reiterated.  Congressman Moorehead stated:

         There is nothing in the First Amendment that guarantees that
      the Federal Government will give one person a bigger horn than
      someone else for the exercise of his rights.

         When we pay for public broadcasting we are giving them a
      tremendous voice.  If they are going to be allowed to
      editorialize with Federal money then they have a tremendous
      advantage over other points of view that may be just as valid.
      /57/

   Members also suggested that editorializing might jeopardize public
support of noncommercial stations /58/ and that editorials by public
stations might be viewed as official pronouncements.

   C. This Court has consistently recognized that the special

      character of broadcasting justifies special regulations designed
      to preserve the public interest in diversity and fairness in
      broadcasting

   1. The district court committed fundamental error by requiring the
government to show that Section 399 rested on (what the court could be
persuaded was) a "compelling interest." In doing so, the court failed
to heed a consistent line of Supreme Court precedent holding that
First Amendment analysis in this context must take into account the
special characteristics of broadcasting.  See, e.g., CBS, Inc. v. FCC,
453 U.S. 367, 394-397 (1981);  FCC v. Pacifica Foundation, 438 U.S.
726, 742 n.17 (1978);  FCC v. National Citizens Committee for
Broadcasting, 436 U.S. 775, 799-800 (1978);  First National Bank of
Boston v. Bellotti, 435 U.S. 765, 791 n.30 (1978);  CBS, Inc. v.
Democratic National Committee, supra, 412 U.S. at 101;  Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969).  As the Court
stated in CBS, Inc. v. Democratic National Committee, supra, 412 U.S.
at 101:

      (T)he broadcast media pose unique and special problems not
      present in the traditional free speech case.  Unlike other
      media, broadcasting is subject to an inherent physical
      limitation.  Broadcasting frequencies are a scarce resource;
      they must be portioned out among applicants.  All who possess
      the financial resources and the desire to communicate by
      television or radio cannot be satisfactorily accommodated.  The
      Court spoke to this reality when, in Red Lion, we said "it is
      idle to posit an unabridgeable First Amendment right to
      broadcast comparable to the right of every individual to speak,
      write, or publish." Id. at 388.

   The very right to broadcast depends on a government license to be
exercised in the public interest.  Broadcast frequencies are both
scarce and uniquely powerful;  /59/ there is therefore a special
public interest in assuring that the airwaves are not monopolized by a
narrow range of interests and views.  (Special regulations to
guarantee diversity in broadcasting -- such as restrictions (going
beyond general antitrust requirements) on the right of newspaper
owners to obtain broadcast licenses -- are justified on this ground.
See FCC v. National Citizens Committee for Broadcasting, supra.) The
fact that the government entrusts licensees with "a valuable and
limited public resource" (CBS, Inc. v. Democratic National Committee,
supra, 412 U.S. at 101) creates a special tension between the
privileges of licensees and the rights of the public, one that the
Court has resolved by holding that "(i)t is the right of the viewers
and listeners, not the right of the broadcasters, which is paramount."
Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 390.  "'(W)hat is
essential is not that everyone shall speak, but that everything worth
saying shall be said'" (CBS, Inc. v. Democratic National Committee,
supra, 412 U.S. at 122, quoting A. Meiklejohn, Political Freedom 26
(1948)).

   Thus, in First Amendment cases involving regulation of broadcast
licensees, the Court has not demanded proof of a compelling government
interest of the kind conventionally demanded in other First Amendment
contexts.  /60/ It has recognized that "(i)t is the purpose of the
First Amendment to preserve an uninhibited marketplace of ideas in
which truth will ultimately prevail * * *" (Red Lion Broadcasting Co.
v. FCC, supra, 395 U.S. at 390);  it has tested restrictions placed
upon broadcasters in the context of the special public interest in a
diverse broadcasting system free from domination by a narrow set of
interests.  See Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at
386-392;  CBS, Inc. v. Democratic National Committee, supra, 412 U.S.
at 121-132;  FCC v. Pacifica Foundation, supra, 438 U.S. at 744-751;
CBS, Inc. v. FCC, supra, 453 U.S. at 394-397.  In conducting this
"'delicate balancing of competing interests'" (id. at 394), the Court
has accorded "great weight to the decisions of Congress * * *." CBS,
Inc. v. Democratic National Committee, supra, 412 U.S. at 102;  see
also Fullilove v. Klutznick, 448 U.S. 448, 472 (1980).

   2. More specifically, this Court has sustained important
restrictions upon the right of all broadcasters to editorialize -- and
has done so without demanding proof of a "compelling" government
interest.

   This is particularly significant because, in the print media, the
right to editorialize is of course virtually unrestricted.  A
newspaper has no legal duty to act in the public interest;  it does
not have to serve the public.  A newspaper may print editorials or
decline to do so.  If it editorializes, it may select the topics of
its choice.  It may remain mute on important issues, while dwelling on
subjects of little interest to most persons.  It may stridently
advance a single point of view;  it may not be compelled to cede space
for reply to those it attacks.  Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241 (1974).  Subject to narrow restrictions, it may
advocate the most extreme measures.  And in making factual assertions,
it is bounded only by the laws of libel and slander.  Cf. New York
Times Co. v. Sullivan, 376 U.S. 254 (1964).

   On the other hand, a broadcaster's rights are hedged on all sides.
/61/ Broadcast licenses may be denied or revoked if the Federal
Communications Commission determines that "the public interest,
convenience, and necessity" require.  47 U.S.C. 309(a);  FCC v. WOKO,
Inc., 329 U.S. 223, 229 (1946).  And in making this determination, the
Commission takes into consideration a broadcaster's coverage of public
affairs.  /62/

   Other significant restrictions upon the editorial freedom of
broadcasters were upheld in Red Lion Broadcasting Co. v. FCC, supra.
In that case, the Court sustained the constitutionality of FCC
regulations granting a right to reply (a) "(w)hen during the
presentation of views on a controversial issue of public importance,
an attack is made upon the honesty, character, integrity or like
personal qualities of an identified person or group" or (b) "(w)here a
licensee, in an editorial * * * opposes a legally qualified candidate"
(395 U.S. at 373-375).  By implication, the Court also upheld the
broader "fairness doctrine" on which these rules are based.  As the
Court has explained (CBS, Inc. v. Democratic National Committee,
supra, 412 U.S. at 111), that doctrine imposes two affirmative
responsibilities upon all broadcasters:  "coverage of issues of public
importance must be adequate and must fairly reflect differing
viewpoints." The Court further stated in Red Lion (395 U.S. at 391)
that the FCC's personal attack and electoral opposition rules were
"indistinguishable" "(i)n terms of constitutional principle" from the
equal-time rule (47 U.S.C. 315) under which a candidate for public
orfice is entitled to broadcast time equal to that furnished to his
adversary.  The Court concluded that all these broadcasting
regulations are consistent with the First Amendment's purpose of
"preserv(ing) an uninhibited marketplace of ideas in which truth will
ultimately prevail, rather than * * * countenanc(ing) monopolization
of that market, whether it be by the Government itself or a private
licensee" (395 U.S. at 390).

   In sum, all broadcasters have been validly subjected to public
responsibilities that prevent use of their stations for unrestrainedly
private or partisan ends.  In the case of federally funded public
broadcasters, Congress has imposed even more careful limitations --
among them Section 399's ban on editorializing and on supporting or
opposing political candidates.  In our view, the special
characteristics of noncommercial broadcasting justify the specific
prohibitions contained in Section 399.

   D. The bar on editorializing and electioneering is an

      essential element of the congressional plan to create and
      finance a public broadcasting system devoted to public, not
      private, purposes

   1. The measures the government has adopted to create and foster
public broadcasting during the past 50 years -- the reservation of a
limited number of channels for noncommercial and educational
broadcasting;  the allocation of these channels throughout the nation;
 the licensing of numerous noncommercial stations to state and local
entities, educational institutions, and broadly based community and
nonprofit organizations;  the funding of construction of facilities;
the production and distribution of educational programming;  and the
massive financing of noncommercial station operations -- represent a
national commitment to an important public purpose:  the creation and
fostering of a special broadcasting system that would give the nation
a kind of programming excellence and diversity that the commercial
sector could not or would not produce.  The countervailing
restrictions Congress has imposed on these special stations --
including those contained in Section 399 -- are designed to serve the
same generous public purpose.  Noncommercial stations, even more than
commercial ones, are to be a community resource.  They are to be
funded by all -- through federal and state and local taxes and through
tax-deductible contributions.  And they are to serve all.  They
constitute a forum where many voices are to be heard but none is to be
preferred and none may be "official." It has always been central to
this vision that these public stations should not be dedicated to the
propagation of particular partisan and ideological views.  Any breach
of this principle, as Senator Hollings noted, "could be the death
knell of public broadcasting" (124 Cong. Rec. 30059 (1978)).

   If editorializing and other partisan political interventions were
permitted, public stations would become an inviting target for capture
by private interest groups that hope to acquire a powerful voice -- at
public expense.  The fact that the number of public stations is
limited -- especially in the case of television -- makes this concern
especially acute.  In most cities the one public TV station is an
absolutely unique community asset;  it would certainly be highly
disturbing if its owners and managers, financed by tax dollars, could
use it to propagate partisan ideological ends.  This concern would be
compounded if numerous educational stations were to be captured by
groups representing a narrow set of ideological interests.  This Court
has recognized that the maintnenace of diversity is especially
important in the broadcast media;  /63/ allowing noncommercial
stations to serve partisan ends would put strains on this important
interest and might eventually involve the FCC in ideological issues
when licensing noncommercial stations.

   Even more important is the point that allowing educational station
owners and managers to use the station to propagate their own partisan
ends is wholly irrelevant to, and might seriously interfere with, the
public mission for which these stations are licensed and federally
funded.  That mission is not to serve as a privileged outlet for the
political and ideological opinions of station owners and managers, but
to provide the public with a special sort of diverse and excellent
programming unavailable on commercial radio and TV.  That mission
includes, of course, the airing of the multitude of lively and
controversial public affairs programs -- programs on which every
possible view may be freely expressed -- that have so notably
enlivened public radio and television since the beginning,
notwithstanding the ban on editorializing.  Carrying out that
educational mission is a full time job, difficult and often
controversial in its own right.  Embroilment in partisan political
controversies could only distract from that central mission.  It could
also compromise the broad public support that educational broadcasting
desperately needs in order to maintain its independence, its
privileged status, and its financial health.  Support for educational
broadcasting -- just like support for many schools and universities --
would rapidly erode if these institutions were perceived as serving
narrow partisan ends.  To compromise the public role of public
broadcasting by allowing it to be exploited for partisan ends would
endanger this noble enterprise.

   2. The ban on editorializing is also justified because it protects
against the use of public stations for government propagandizing.
That this is an important government interest can scarcely be denied;
"it is a central tenet of the First Amendment that the government must
remain neutral in the marketplace of ideas." FCC v. Pacifica
Foundation, supra, 438 U.S. at 745-746 (opinion of Stevens, J.;
footnote omitted).  /64/

   Congress specifically found that if public stations were permitted
to editorialize, they might feel pressure to broadcast editorials
acceptable to those who hold the purse strings.  Similarly, if
publicly funded stations became associated with particular editorial
positions, it would be difficult to prevent political considerations
from influencing decisions regarding the appropriation and
distribution of such funds.

   The district court's opinion, disagreeing with the considered
judgment of three Congresses that Section 399 is necessary to insulate
public broadcasting from governmental pressures, furnishes no valid
basis for striking it down.  The court first stressed (J.S. App. 13a)
the "modest level" of CPB funding.  It noted (id. at 12a-13a) that the
average station affected by Section 399 received not more than
approximately 25% of its 1977 operating budget from CPB;  that no such
station depended on CPB for more than 33% of its budget;  and that
only 14% of appellee Pacifica's revenue was allegedly derived from CPB
grants.  /65/

   The flaws in this reasoning are manifest.  When enacting Section
399, Congress made the predictive judgment that CPB funding, whatever
its exact level, would be sufficient to create an unhealthy
possibility of government control;  that judgment is entitled to
respect.  The constitutionality of Section 399 cannot be tied to the
accidents of current levels and trends of federal funding;  otherwise
the statute's validity would vary from year to year as funding waxes
and wanes.

   Further, it is not for the court to make a de novo judgment whether
33%, or 25%, or 14% is substantial.  For all the district court knows,
a 14% decrease in net income may spell bankruptcy for some public
broadcasters.  For many more, the result could be a significant
curtailment of operations, with losses of jobs, salary cuts, and other
consequences.  The federal government is the largest single source of
funding for public broadcasters.  See pp. 18-20, supra.  Congress
determines what the exact level of funding should be;  its judgment
that the potential for influence is substantial should not have been
set aside.

   The district court also completely ignored the danger of political
pressure by state and local governments and their instrumentalities.
These sources account for more than 35% of public broadcasting's
income (ibid.);  they own more than two-thirds of all public stations.
 There thus exists an obvious potential for abuse.  And, in fact,
instances of political pressure upon the programming of governmental
licensees are common enough that in 1981 the National Association of
Educational Broadcasters published a collection of case studies (R.
Schenkkan, C. Thurston & A. Sheldon, Case Studies in Institutional
Licensee Management (1980)).  /66/ Similarly, a survey of public
television stations to determine whether they would editorialize if
allowed to do so reported that "managers of state-licensed stations,
some of which receive sizeable appropriations, responded that (the
potential impact of editorials on their sources of funding) would be a
'very important' factor in their decision." Wollert & Haney,
Editorializing and Fundraising:  Does It Mix?  7 Pub.
Telecommunications Rev., No. 5, at 34, 36 (Sept./Oct. 1979).  /67/

   The district court also suggested (J.S. App. 13a) that the fear of
government influence was "speculative" because of the "protective
insulation" provided by the CPB.  /68/ As we have noted, Congress
wrestled with the problem of structuring the CPB board so as to
provide such insulation;  it ultimately concluded that additional
measures were required.  In our view, the courts should not
second-guess Congress's judgment about the adequacy of the insulation
provided by the CPB or the appropriate combination of means for
achieving this obviously legitimate objective.  /69/

   Finally, the district court placed reliance (J.S. App. 14a) on the
fairness doctrine.  It is important to remember, however, that the
fairness doctrine is itself a significant limitation on the right to
editorialize, and has essentially the same constitutional grounding as
Section 399.  Both provisions reflect the judgment that unrestrained
partisanship by broadcast licensees may threaten First Amendment
values, see Red Lion Broadcasting Co. v. FCC, supra;  to invalidate
one because the government happens currently also to be utilizing the
other is inconsistent and substitutes ad hoc policy judgments for
constitutional doctrine.  Moreover, the fairness doctrine has a
limited scope, and Congress had a reasonable basis for concluding that
additional safeguards are needed against the use of public stations
for government propagandizing.  /70/

   3. The prohibition on editorializing serves an additional important
interest, one not discussed by the district court:  it prevents the
use of taxpayer money to promote private views.  The First Amendment
protects "both the right to speak freely and the right to refrain from
speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977).  This
Court held in Abood v. Detroit Board of Education, 431 U.S. 209, 234
(1977), that a city board of education could not require teachers, as
a condition of employment, to pay union dues insofar as these dues
were used by the union to express political views, to support
political candidates, or to advance other ideological causes "not
germane to its duties as collective-bargaining representative" (id. at
235;  footnote omitted).  The Court explained (ibid.) that the First
Amendment prohibited the board "from requiring (a teacher) to
contribute to the support of an ideological cause he may oppose as a
condition of holding a job as a public school teacher."

   Section 399 supports the same principle.  It would be fundamentally
wrong to exact tax money from all citizens and then give it to
televison and radio stations so that the stations can espouse causes
with which a great many taxpayers might disagree.  "A system which
secures the right to proselytize religious, political, and ideological
causes must also guarantee the concomitant right to decline to foster
such concepts." Wooley v. Maynard, supra, 430 U.S. at 714.  This
problem is here magnified by the tremendous power of the broadcast
media and by the ironic fact that government-funded "public"
television stations may be less answerable to the public than
commercial stations dependent upon ratings for advertising revenue.
/71/

   The ban on editorializing also avoids another danger:  the
appearance that, by providing funds to public stations, the government
has endorsed or "prescribe(d) as orthodox" a particular view on the
issues.  West Virginia State Board of Education v. Barnette, 319 U.S.
624, 645 (1943).  See also Wooley v. Maynard, supra (state may not
compel driver to display on license plate a state motto repugnant to
his moral, religious, and political beliefs).  /72/

   E. The free marketplace of ideas is not substantially inhibited

      by Congress's decision that owners and managers of public
      stations should not have a privileged voice

   The restriction on editorializing in Section 399 interferes only
minimally with the free marketplace of ideas.  As noted,
"editorializing" means only the expression of a licensee's views by
management or a management spokesman (In re Complaint of Accuracy in
Media, Inc., supra, 45 F.C.C.2d at 302).  Station employees,
journalists, academics, polemicists and politicians remain free to
express their views.  Public figures may be invited to give their
opinions or may be interviewed by an interviewer of management's
choice.  Any news subject may be covered in any manner.  Any
documentary or show may be aired.  In addition, the prohibition
against editorializing is strictly neutral;  it makes no effort to
restrict only those expressions of opinion with which those in
positions of authority might disagree.  See Regan v. Taxation With
Representation, supra, slip op. 7, 9;  concurring opinion at 1
(Blackmun, J.).  Finally, the prohibition against editorializing
applies only to the use of subsidized broadcast facilities;  it does
not prevent Pacifica from expressing its views on any other station or
in any other medium (including the publications that many
noncommercial stations mail to their contributors).

   Anyone who has watched public television or listened to public
radio knows that they devote substantial air time to public affairs
programming;  programs such as the McNeil/Lehrer Report, Washington
Week in Review, Wall Street Week, Firing Line, and All Things
Considered, provide a broad and lively range of views on diverse and
controversial topics.

   Moreover, any station that finds the ban on editorializing unduly
restrictive is free to decline CPB grants.  If such grants really are
only an insignificant part of a station's budget -- as the district
court opined (see J.S. App. 12a-14a) -- this should not represent a
major sacrifice.  If, on the other hand, federal subsidies are
critical for a station's operations, management should not complain
that it cannot use public funds to express its own views.  Station
owners and managers subject to Section 399 are, after all, in no worse
position that other persons denied special access to the airwaves to
express their views.  CBS, Inc. v. Democratic National Committee,
supra.  See Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 389
("as far as the First Amendment is concerned those who are licensed
stand no better than those to whom licenses are refused").  In arguing
that the First Amendment guarantees its right to editorialize on a
public station, Pacifica is claiming the right to magnify the force
and reach of its opinions through the use of a valuable public
resource sustained by public funds and entrusted to it for the purpose
of providing a public service.  The First Amendment should not be
interpreted to give owners and managers of public stations such a
privileged voice.

 II. CONGRESS HAS POWER TO DETERMINE THAT IT WILL NOT SUBSIDIZE
PRIVATE EDITORIALIZING AND ELECTIONEERING

   Section 399 is constitutional for another -- simple -- reason.
That provision does not in any way prohibit noncommercial stations
from exercising their right to freedom of expression.  Congress has
merely provided, in the proper exercise of its Spending Power, that it
will not subsidize public broadcasting station editorials.  "A federal
agency providing financial assistance to a public television station
may, of course, attach conditions to its subsidy that will have the
effect of subjecting such licensee to more stringent requirements than
must be met by a commercial licensee." Community Television of
Southern California v. Gottfried, No. 81-198 (Feb. 22, 1983), slip op.
13.  /73/

   To demonstrate the constitutionality of the contested provision of
Section 399, it is necessary to look no further than this Court's
recent, unanimous decision in Regan v. Taxation With Representation,
No. 81-2338 (May 23, 1983) ("TWR"), holding that Section 501(c)(3) of
the Internal Revenue Code (26 U.S.C.) does not abridge the First
Amendment.  Section 501(c)(3) withholds tax exempt status from a
nonprofit organization if a "substantial part" of its activities are
devoted to "carrying on propaganda, or otherwise attempting, to
influence legislation." Equating the tax exemption granted by that
provision to "a cash grant to the organization of the amount of tax it
would have to pay on its income" (TWR, supra, slip op. 3-4), the Court
explained (id. at 4) that Section 501(c)(3) simply expressed
Congress's choice not "to subsidize lobbying as extensively as * * *
other activities that non profit organizations undertake to promote
the public welfare."

   The Court rejected the argument that "the prohibition against
substantial lobbying by Section 501(c)(3) organizations imposes an
'unconstitutional condition' on the receipt of tax-deductible
contributions" (TWR, supra, slip op. 5).  The Court acknowledged that
"the government may not deny a benefit to a person because he
exercises a constitutional right," but explained (ibid.):

      The Code does not deny TWR the right to receive deductible
      contributions to support its nonlobbying activity, nor does it
      deny TWR any independent benefit on account of its intention to
      lobby.  Congress has merely refused to pay for the lobbying out
      of public monies.  This Court has never held that Congress must
      grant a benefit such as TWR claims here to a person who wishes
      to exercise a constitutional right.

                      * * * * *

      Congress has not infringed any First Amendment rights or
      regulated any First Amendment activity.  Congress has simply
      chosen not to pay for TWR's lobbying.

   The reasoning of TWR is applicable to the present case.  /74/ In
neither case did Congress prohibit the exercise of First Amendment
rights.  In both cases, Congress simply decided not to subsidize
private partisanship.  /75/

   Appellees have argued (Mot. to Dismiss or Affirm 16;  emphasis in
original) that Section 399 is unconstitutional because it "does not *
* * simply restrict the manner in which the noncommercial broadcaster
may spend the grant it receives" but "imposes an outright restraint on
what the broadcaster may do or say with any of its funds." This
argument was implicitly rejected in TWR and has no greater validity
here.  The tax exemption provided by Section 501(c)(3) and CPB's
unrestricted grants both benefit all aspects of the subsidized
organizations.  CPB community service grants are used "to produce or
purchase programs, hire production staff, buy equipment or make other
capital improvements, provide training, promote programs or finance
fund-raising activities" (CPB, Annual Report 1981, at 7).  /76/
Without these grants, there might be no staff members to write, edit,
or deliver an editorial;  no station support staff;  no popular
programs to attract an audience for the editorial or stimulate private
contributions;  and no studio, antenna, or other broadcast facilities.
 As in the case of the tax exemption, the only way to prevent federal
funds from subsidizing the activities that Congress wished not to
subsidize (lobbying in the case of Section 501(c)(3);  editorializing
in the case of Section 399) is to ban a subsidized organization from
engaging in the activities.

   Appellees have also argued (Mot. to Dismiss or Affirm 17) that
Section 399 places an unconstitutional condition upon the receipt of
CPB funds.  But like TWR, the present case is readily distinguishable
from those in which the government denied a person a benefit because
he exercised a constitutional right.  Two such cases -- Speiser v.
Randall, 357 U.S. 513 (1958), and Perry v. Sindermann, 408 U.S. 593
(1972) -- were mentioned in TWR (slip op. 5), and they serve to
illustrate the distinction.  In Speiser, taxpayers were denied a
property tax exemption for honorably discharged veterans because they
refused to sign a declaration stating that they did not advocate the
forcible overthrow of the government.  In Perry, a state college
professor was allegedly denied reemployment because he criticized the
Board of Regents.  Only in the most strained and artifical sense could
it be said that the law in Speiser prevented government subsidy of
taxpayer speech (i.e., the refusal to sign the required declaration).
Similarly, in Perry, retention of the professor could not be deemed a
state subsidy of the teacher's criticisms of the Board.  /77/

   Speiser and like cases are distinguishable in another critical
respect, as this Court noted in FCC v. National Citizens Committee for
Broadcasting, supra, 436 U.S. at 800-801.  In that case regulations,
prospectively barring newspapers from obtaining broadcast licenses in
the same community, were attacked on the ground that they
"unconstitutionally condition(ed) receipt of a broadcast license upon
forfeiture of the right to publish a newspaper" (id. at 800).
Rejecting this argument for a unanimous Court, Justice Marshall
pointed out (id. at 801;  emphasis added) that Speiser and related
cases were inapposite because there denial of a benefit "was based
solely on the content of constitutionally protected speech," whereas
the challenged regulations were "not content related." Here, of
course, Section 399 prohibits all editorializing, without regard to
content.

   Finally, in Speiser and similar cases, the restrictions on speech
bore little relationship to the purpose for the government funding;
their only aim was to limit expression.  In Speiser, the purpose of
the tax exemption was presumably to reward veterans, an objective
unrelated to the desirability of signing the prescribed declaration.
And in Perry v. Sindermann, supra, the purpose of employing the
teacher was to provide instruction for students.  Restricting speech
that did not interfere with the performance of that task obviously did
not serve that purpose.  Here, by contrast, as we have shown, Congress
has consistently determined that the prohibition against
editorializing by CPB-funded stations is integral to the purposes it
sought to achieve in creating and subsidizing a public broadcasting
system.

   Section 399, in sum, does not prevent any person or organization
from engaging in any form of expression.  "Congress has simply chosen
not to pay for (public broadcasting stations' editorializing)" (TWR,
supra, slip op. 5).  This Court should "again reject the 'notion that
First Amendment rights are somehow not fully realized unless they are
subsidized by the State'" (id. at 5, quoting Cammarano v. United
States, 358 U.S. 498, 515 (1959) (Douglas, J., concurring)).  /78/

                              CONCLUSION

   The judgment of the district court should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   PAUL M. BATOR

      Deputy Solicitor General

   SAMUEL A. ALITO, JR.

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   MICHAEL JAY SINGER

      Attorneys

   JUNE 1983

   /1/ See McLucas v. DeChamplain, 421 U.S. 21, 30 (1975).

   /2/ Indeed, Section 399 permits "the expression of views on public
issues by employees of a noncommercial educational broadcast station
in their capacity as individuals * * * provided the surrounding facts
and circumstances do not indicate that such views are represented or
intended as the official opinion of the licensee or its management"
(In re Complaint of Accuracy in Media, Inc., supra, 45 F.C.C.2d at
302).

   /3/ S. 2883, 95th Cong., 2d Sess. Section 404(a) (1978).  See pp.
25-26, infra.

   /4/ The district court did not decide whether the League or
Congressman Waxman had standing to bring this action, since their
complaint, as ultimately amended, did not seek any relief not also
requested by Pacifica (J.S. App. 7a).

   /5/ J.S. App. 6a;  Dep't of the Treasury, Internal Revenue Service
Pub. No. 78 (Rev. 1-82), Cumulative List of Organizations 764 (1981);
CPB, 1982 CPB Public Broadcasting Directory 21, 22, 25, 39, 47.

   /6/ In October 1979, in response to the filing of this suit, then
Attorney General Civiletti informed the Senate that the Department of
Justice would not defend the constitutionality of the statute, in part
because it applied to all public broadcasting stations and not just to
those receiving federal aid (J.A. 13).  The Senate then adopted a
resolution, pursuant to 2 U.S.C. (Supp. V) 288e(a), directing its
counsel to intervene as amicus curiae and to defend the suit (J.S.
App. 3a & n.3).  The district court nevertheless dismissed the
complaint on the ground that there was no justiciable controversy
because the government had decided not to enforce the statute (J.S.
app. 4a).  In April 1981, while the case was pending on appeal,
Attorney General Smith notified the Senate that the government would
defend the constitutionality of the statute (J.A. 15-16).  The court
of appeals remanded the case to the district court;  the district
court vacated its order of dismissal;  and the Senate Legal Counsel
withdrew from the litigation (ibid.).

   /7/ See Defendant's Memorandum of Points and Authorities in
Opposition to Plaintiffs' Motion for Summary Judgment 11-20.

   /8/ The meaning of the fairness doctrine is discussed at pp. 38-39
& n.70, infra.

   /9/ The district court "base(d) its decision squarely on the First
Amendment" and did not rule on appellees' equal protection challenge
to the statute (J.S. App. 19a).

   /10/ For comprehensive accounts of the noncommercial public
broadcast system, we refer the Court to the two landmark reports on
that system sponsored by the Carnegie Corporation:  Carnegie
Commission on Educational Television, Public Television:  A Program
for Action (1967) ("Carnegie I"), and Carnegie Commission on the
Future of Public Broadcasting, A Public Trust (1979) ("Carnegie II").

   /11/ S. Frost, Education's own Stations 464 (1937).

   /12/ Note, The Legal Problems of Educational Television, 67 Yale
L.J. 639, 642 & n.14 (1958).

   /13/ 78 Cong. Rec. 8829 (1934).

   /14/ FCC, Report of Proposed Allocations from 25,000 Kilocycles to
30,000,000 Kilocycles 77 (1945).

   /15/ Carnegie I, supra, at 21.

   /16/ Sixth Report and Order, 41 F.C.C. 148 (1952).

   /17/ In the then ten largest cities, commercial stations had taken
all available VHF channels in seven (New York, Philadelphia, Los
Angeles, Detroit, Baltimore, Cleveland, and Washington, D.C.).  Bureau
of the Census, Statistical Abstract of the United States 1976, at
23-24;  Sixth Report and Order, 41 F.C.C. 148 (1952).  Except for New
York, all these cities still lack a noncommercial VHF outlet. CPB,
1982 CPB Public Broadcasting Directory 67, 69 74-75, 80;  RCA
Broadcast Systems, Television & Cable Factbook 1014, 1046 (1982-83
ed.).  A noncommercial VHF station for the New York City area was
established in 1962 when an educational broadcasting organization
bought a commercial station in Newark, N.J., for $5.75 million.
Carnegie II, supra, at 315-316;  E. Barnouw, The Image Empire -- A
History of Broadcasting in the United States 197-198 (1970).

   /18/ See All Channel Receiver Act, Pub. L. No. 87-529, Sections 1
and 2, 76 Stat. 150 and 151 (codified at 47 U.S.C. 303(s) and 330(a)).
 This legislation "was of crucial importance to noncommercial
television" (E. Barnouw, supra note 17, at 201).  See also Carnegie
II, supra, at 34.

   /19/ UHF transmitters require much greater power than VHF and are
less efficient, and UHF reception is generally inferior.  Carnegie II,
supra, at 239 n.9.

   /20/ On the following dates, noncommercial VHF stations began
operations in major cities.  In 1953:  KUHT in Houston.  In 1954:
WQED in Pittsburgh, KQED in San Francisco, KETC in St. Louis, and KCTS
in Seattle.  In 1955:  WGBH in Boston and WPBT in Miami.  In 1956:
KRMA in Denver.  In 1957:  WTTW in Chicago, WMVS in Milwaukee, KTCA in
Minneapolis-St. Paul, WYES in New Orleans, and KOAC in Portland,
Oregon.  In 1958:  KUED in Salt Lake City.  In 1960:  KERA in Dallas.
In 1961:  KAET in Tempe (Phoenix), Arizona.  CPB, 1982 CPB Public
Broadcasting Directory 66, 68, 70, 71, 73, 74, 76, 81, 82, 84, 85, 86;
 RCA Broadcast Systems, Television & Cable Factbook 1014 (1982-83
ed.).

   /21/ Note, supra note 12, at 646.

   /22/ Report and Order, 41 F.C.C. 784, 786 (1956).

   /23/ The Public Broadcasting System (PBS) "was established by the
Corporation for Public Broadcasting and the nation's public television
licensees in 1969 as the interconnection service for public
television.  It was reorganized in 1973 as a membership-supported
organization.  PBS is responsible for the scheduling, promotion and
distribution of the national program service to noncommercial
television stations across the country, and for representation of the
public television stations' interests at the national level." CPB, Ten
Years of Public Broadcasting, 1967-1977, at 14 (1977).  PBS obtains
and distributes programming from member stations and other sources
(ibid.).  National Public Radio, established by CPB in 1971, performs
an analogous service for public radio stations (id. at 15).

   /24/ Special Message to the Congress:  "Education and Health in
America," 1 Pub. Papers 250 (Feb. 28, 1967);  Pub. L. No. 90-129,
Title II, Section 201, 81 Stat. 367.

   /25/ See E. Barnouw, supra note 17, at 197-198.

   /26/ See Remarks Upon Signing the Public Broadcasting Act of 1967,
2 Pub. Papers 474 (Nov. 7, 1967) (remarks of President Johnson);  The
Public Television Act of 1967:  Hearings on S. 1160 Before the
Subcomm. on Communications of the Senate Comm. on Commerce, 90th
Cong., 1st Sess. 128 (1967) (Roger L. Stevens, chairman, National
Foundation on the Arts and Humanities);  id. at 173 (Fred Friendly,
former president, CBS News);  id. at 366-367 (James D. O'Connell,
White House Director of Telecommunications Management);  Public
Television Act of 1967:  Hearings on H.R. 6736 and S. 1160 Before the
House Comm. on Interstate and Foreign Commerce, 90th Cong., 1st Sess.
28 (1967) (John W. Gardner, Secretary of HEW);  id. at 122-123 (James
R. Killian, Jr., Carnegie Commission chairman);  id. at 279-280
(Julian Goodman, NBC president);  id. at 371 (McGeorge Bundy, Ford
Foundation president);  id. at 377-379 (Fred Friendly);  id. at 446
(William G. Harley, president of National Association of Educational
Broadcasters);  Carnegie I, supra, at 13, 17-18, 92-99.

   /27/ See pp. 22-25, infra.

   /28/ See 47 U.S.C. (Supp. V) 397(7);  47 C.F.R. 73.503(d) (radio);
47 C.F.R. 73.621(e) (TV).  In 1981, Congress added 47 U.S.C. (Supp. V)
399a, as amended by Pub. L. No. 97-35, Title XII, Section 1230, 95
Stat. 730, which reiterates the ban on advertisements and specifically
prohibits political or public affairs advertisements.

   /29/ A House provision that would have prohibited mere "amusement"
or "entertainment" was struck by the Conference Committee.  H.R. Conf.
Rep. No. 794, 90th Cong., 1st Sess. 13 (1967).

   /30/ Cf. Accuracy in Media, Inc. v. FCC, 521 F.2d 288, 297 (D.C.
Cir. 1975) (provision is "set of goals to which the Directors of CPB
should aspire," "not a substantive standard, legally enforceable by
agency or courts") (footnote omitted);  compare Canby, The First
Amendment and the State as Editor:  Implications for Public
Broadcasting, 52 Tex. L. Rev. 1123, 1161 (1974).

   /31/ In succeeding years, additional restrictions have been
imposed.  Recipient stations not owned by governmental entities are
required to establish "community advisory board(s)" that are
"reasonably representative of the diverse needs and interests of the
communities" they serve.  These boards must be permitted to review the
stations' programming goals, service, and significant policy
decisions.  The boards must advise the stations whether they are
meeting community educational and cultural needs and may make
recommendations.  47 U.S.C. (Supp. V) 396(k)(9).  Recipient stations
are subject to stringent accounting (47 U.S.C. (Supp. V) 396(e)) and
financial disclosure (47 U.S.C. (Supp. V) 396(k)(5)) requirements, and
special equal employment opportunity rules (47 U.S.C. (Supp. V)
398(b)).  The meetings of their governing bodies must generally be
open to the public (47 U.S.C. (Supp. V) 396(k)(4)).

   /32/ CPB, Annual Report 1981, at 3.

   /33/ CPB, Annual Report 1981, at 3.  Only full-service radio
stations are qualified for CPB grants.  CPB, Policy for Public Radio
Station Assistance (1981).  See p. 26 and note 54, infra.

   /34/ Executive Office of the President, Office of Management and
Budget, Appendix to the Budget for Fiscal Year 1984, at I-VI4.

   /35/ CPB, Annual Report 1981, at 3.

   /36/ Of the 25 largest cities, only six (New York, Los Angeles,
Washington, D.C., Boston, San Francisco, and Milwaukee) have two
public stations, and virtually none of the smaller cities has more
than one. CPB, 1982 CPB Public Broadcasting Directory 66-88;  Bureau
of the Census, Statistical Abstract of the United States, 1982-83, at
22-24.  Even in cities with two public stations, programming between
the two is often duplicative.  Public radio stations are
overwhelmingly concentrated on the FM band.  CPB, 1982 CPB Public
Broadcasting Directory 18-50.

   /37/ FCC News Release (Mar. 14, 1983).

   /38/ In fiscal year 1981, public television received 80% of all
public broadcasting income.  CPB, Public Broadcasting Income Fiscal
Year 1981, at 8-10 (1983).

   /39/ See, e.g., Pub. L. No. 97-35, Section 561, 95 Stat. 469
(Department of Education).

   /40/ Letter from Department of Education to James L. Loper,
president of KCET, reprinted in Br. for Petitioner Community
Television of Southern Calif. at 1a, Community Television of Southern
California v. Gottfried, Nos. 81-291, 81-799 (filed Feb. 22, 1983);
S. Katzman & N. Katzman, Public Television Programming Content by
Category Fiscal Year 1978 (1979).

   /41/ CPB, Public Broadcasting Income Fiscal Year 1981, at 8 (1983).
 In addition to the 60.4% contributed by government and the 14.4% from
private subscriptions, business contributed 11.3%, foundations 2.5%,
colleges other than state colleges 2.5%, and all others 6.3% (ibid.).

   /42/ 47 U.S.C. (Supp. V) 396(k)(1)(B) and 47 U.S.C. (Supp. V)
396(k)(1)(C), as amended by Pub. L. No. 97-35;  Title XII, Section
1227(a), 95 Stat. 727.  See also 47 U.S.C. (Supp. V) 396(k)(6)(B)(ii),
as amended by Pub. L. No. 97-35, Title XII, Section 1227(d), 95 Stat.
729.

   /43/ CPB, 1982 CPB Public Broadcasting Directory 66-88;  RCA
Broadcast Systems, Television & Cable Factbook 1007-1059 (1982-83
ed.).

   /44/ State-owned public television is generally managed by
authorities or commissions comprised of public officials or political
appointees.  In many states, the governor appoints commission members
with the advice and consent of the state senate.  E.g., Ala. Code
Section 16-7-2 (Cum. Supp. 1982) (Alabama Educational Commission
comprised of seven members appointed by governor with advice and
consent of senate);  see Alaska Stat. Section 44.21.025 (1980);  Ark.
Stat. Ann. Section 80-3902 (1980);  Hawaii Rev. Stat. Section 314-2
(1976);  Wyo. Stat. Section 9-3-1102 (1977).

   In some states, the legislature joins the governor in actually
naming members to the commission.  E.g., Or. Rev. Stat. Section
354.115 (Repl. 1981) (Oregon Commision for Public Broadcasting
comprised of five members appointed by governor, three members
appointed by President of the Senate, and three members appointed by
Speaker of the House);  see Cal. Gov't Code Section 8811 (1980);  N.C.
Gen. Stat. Section 143B-426.9 (Cum. Supp. 1981);  71 Pa. Cons. Stat.
Ann. Section 1188.2 (Purdon Cum. Supp. 1982);  S.C. Code Ann. Section
59-7-10 (Law. Co-op. 1977).

   Many other states combine appointed members with specified public
officials who are members ex officio.  E.g., N.J. Stat. Ann. Section
48:23-4 (West Cum. Supp. 1982) (New Jersey Public Broadcasting
Authority comprised of five cabinet officers and ten other members
appointed by governor with advice and consent of Senate);  see Ky.
Rev. Stat. Ann. Section 168.040 (1980);  La. Rev. Stat. Ann. Section
17.2503 (West 1982);  Mass. Gen. Laws Ann. ch. 65 (1982);  Neb. Rev.
Stat. Section 79-2102 (1981);  N.D. Cent. Code ch. 15-65 (1981);  Ohio
Rev. Code Ann. Section 3353.02 (Page Supp. 1982);  Okla. Stat. Ann.
tit. 70, Section 23-105 (West Cum. Supp. 1982);  S.D. Codified Laws
Ann. Section 13-47-1 (1982);  W. Va. Code Section 10-5-2 (1976).

   A number of states operate public television systems through the
state board of education or its equivalent.  E.g., Fla. Stat. Section
229.805 (1977 & Cum. Supp. 1983) (Florida educational television
network operated by State Department of Education pursuant to policies
adopted by State Board of Eduation);  see Colo. Rev. Stat. Section
22-50-113.7 (Cum. Supp. 1982);  Del. Code Ann. tit. 14, Sections 129,
130 (1981);  Ga. Code Ann. Section 20-2-12 (Cum. Supp. 1982);  Iowa
Code Ann. Section 18.138 (West 1978);  Kan. Stat. Ann. Section 75-4906
(1977);  Mich. Comp. Laws Section 15.2090 (1979);  N.Y. Educ. Law
Section 236 (McKinney Cum. Supp. 1982);  Tenn. Code Ann. Section
49-3853 (Cum. Supp. 1982);  Utah Code Ann. Section 53-42-1 (1981).

   /45/ CPB, 1982 CPB Public Broadcasting Directory 18-50.

   /46/ Appellees would have this Court believe (Br. in Opp. 20 n.13)
that Congress enacted Section 399 solely for the illegitimate purpose
of "suppress(ing) potentially critical public comment" concerning its
members.  Appellees cite (ibid.) three isolated statements taken out
of context from the congressional debates.  These statements do not
support the argument.  Congressman Keith was making the valid point
that an administration film promoting its legislative program could
have been used against opposing congressmen (113 Cong. Rec. 26391
(1967)).  The broadcasting of such federal government propaganda on
public stations is just the mischief that Section 399 was designed to
prevent.  Congressman Joelson (113 Cong. Rec. 26391 (1967)) was
discussing slander, which is not protected speech.  His remarks were
spurred by a colleague's question whether the government could be sued
by a private citizen for slander broadcast by a publicly-funded
station;  he may have meant that "the right of editorializing should
be very, very carefully scrutinized" for that reason (ibid.).

   In any event, these isolated remarks are of little import.  "(I)
nquiry into legislative motive is often an unsatisfactory venture. * *
* What motivates one legislator to vote for a statute is not
necessarily what motivates scores of others to enact it." Pacific Gas
& Electric Co. v. State Energy Resources Conservation & Development
Commission, No. 81-1945 (Apr. 20, 1983), slip op. 23;  see also United
States v. O'Brien, 391 U.S. 367, 383 (1968).

   /47/ See, e.g., 1967 Senate Hearings, at 93 (Rosel H. Hyde, FCC
chairman);  id. at 172-173 (Fred Friendly, former CBS news president);
 id. at 197 (John F. White, president of NET);  id. at 219 (Jack G.
McBride, general manager of Nebraska ETV Network).

   /48/ See, e.g., the criticisms of Fred Friendly and Senator Javits,
1967 Senate Hearings, at 173, 451-452.

   /49/ See, e.g., 1967 Senate Hearings, at 130 (Roger L. Stevens,
chairman of the National Foundation on the Arts and the Humanities);
id. at 449 (Sen. Javits).

   The committee sought to remedy this feature by providing for
Presidential appointment of nine of the 15 members, with the nine
Presidential appointees to elect the remaining six.  See S. Rep. No.
222, 90th Cong., 1st Sess. 13 (1967);  113 Cong. Rec. 12990 (1967)
(remarks of Sen. Pastore).  This provision was eliminated from the
final version of the Act, with the House substituting the requirement
that not more than eight of the members could belong to the same party
(see 47 U.S.C. (Supp. V) 396(c)).

   /50/ An educational station manager explained that his station felt
that editorializing was inconsistent with its role as a representative
of the entire community (1967 House Hearings, at 516):

      (T)he board feels that it is representing the whole public.  It
      is drawing funds from all segments of the public.  It simply
      doesn't feel it has any right to impose an opinion of a group or
      an individual on this general public.

   /51/ See 1967 House Hearings, at 513 (remarks of Rep. Van Deerlin);
 id. at 643 (remarks of Rep. Ottinger).

   /52/ Committee Chairman Staggers, explaining the distinction
between editorializing by commercial and noncommercial stations,
stated (1967 House Hearings, at 721) that in the latter case "there is
both the use of a public resource and the use of Government funds for
financing" (113 Cong. Rec. 26383 (1967)).  See also id. at 26394
(remarks of Rep. Brotzman);  id. at 26387, 26407 (remarks of Rep.
Springer);  id. at 26397 (remarks of Rep. Fascell);  1967 House
Hearings, at 417 (remarks of Rep. Carter) (CPB, governed by
presidential appointees, provided insufficient protection).

   /53/ President Carter stated that the "ban makes sense for stations
licensed to a state or local government instrumentality. * * * * *
Another step toward journalistic independence would be for state and
local governments to better insulate these stations.  The danger of
undue political control is as real here as at the Federal level."
Public Broadcasting System:  Message to the Congress, 2 Pub. Papers
1743 (Oct. 6, 1977) (emphasis added).  The Administration proposal was
passed by the House (124 Cong. Rec. 19932, 19937 (1978);  see also
H.R. Rep. No. 95-1178, 95th Cong., 2d Sess. 31 (1978)) but not the
Senate (124 Cong. Rec. 15439 (1978)).  The House conferees receded
(H.R. Conf. Rep. No. 95-1774, 95th Cong., 2d Sess. 35 (1978)).

   /54/ See note 33, supra.  It is to these relatively insignificant
stations that appellees refer when they state (Mot. to Dismiss or
Affirm 20 n.13) that before 1981 Section 399 "applied to the hundreds
of noncommercial broadcasters that received absolutely no federal
funding."

   The legislative history suggests that Congress did not even
consider these small radio stations when Section 399 was enacted in
1967.  Both President Johnson and Congress focused primarily on
television.  Indeed, as originally introduced the legislation was
entitled the Public Television Act and called for the creation of the
Corporation for Public Television.  See S. 1160, 90th Cong., 1st Sess.
(1967).  And Congress believed -- correctly -- that all public
television stations would receive CPB grants.  See 113 Cong. Rec.
26416 (1967).  Contrary to appellees' contention (Mot. to Dismiss or
Affirm 6 n.2), there is nothing to suggest that Congress believed that
"not all local noncommercial broadcasting stations would receive CPB
funding."

   /55/ Congressman Tauke stated:

         It occurs to me * * * if the Des Moines Register in my own
      state were receiving public funds its editorial policy would be
      substantially different or otherwise, it * * * probably would no
      longer be relying on those Federal funds.

         If it were relying on public funds, it could not speak as it
      does about Members of Congress, members of the Iowa Legislature.

   May 11, 1981 Tr. 37 of Markup of Public Broadcasting Legislation by
the Subcomm. on Telecommunications, Consumer Protection, and Finance
of the House Comm. on Energy and Commerce, 97th Cong., 1st Sess.
(1981) (hereinafter "May 11, 1981 House Markup").

   /56/ May 6, 1981 Tr. 75 of Markup of H.R. 3238 by the Subcomm. on
Telecommunications, Consumer Protection, and Finance of the House
Comm. on Energy and Commerce, 97th Cong., 1st Sess. (1981).  See also
Hearings on H.R. 3238 Before the Subcomm. on Telecommunications,
Consumer Protection, and Finance of the House Comm. on Energy and
Commerce, 97th Cong., 1st Sess. 10 (1981) (hereinafter "1981 House
Hearings");  see also 1967 Senate Hearings, at 10.

   /57/ May 11, 1981 House Markup, at 39;  see also 1981 House
Hearings, at 65-66 (remarks of Rep. Swift).

   /58/ May 11, 1981 House Markup, at 36;  1981 House Hearings, at

   65.

   /59/ It has been suggested that recent technological advances --
such as cable TV and direct satellite reception -- have ended the days
of scarcity in access to broadcasting channels.  See Note, The Public
Broadcasting Act:  The Licensee Editorializing Ban and the First
Amendment, 13 U. Mich. J. L. Ref. 541, 553 (1980).  The fact is,
however -- as every resident of the District of Columbia knows --
that, though much talked about, the day when most viewers have access
to these new technological marvels still lies in the uncertain future.
 For most viewers, television still consists, first, of the two or
three or four VHF stations accessible to the community, and, second,
of a few additional UHF outlets.  The fact of scarcity is, of course,
vividly recognized by that most realistic of measurements, the market.
 A VHF station license in an urban market commands a staggering price;
 channel 5 in Boston was sold in 1982 for $220 million.  Broadcasting/
Cablecasting Yearbook 1983, at C-91.  There is acute competition for
even UHF licenses in major markets.  A UHF license in the San
Bernardino Valley was recently revoked;  40 competing applications
were received for that channel.  FCC Public Notice, TV Broadcast
Applications Accepted for Filing and Notification of Cut-Off Date for
San Bernardino, California (May 18, 1983).

   Further, it is clearly for Congress in the first instance to
determine whether and when technological changes warrant a major
restructuring of our system of broadcast regulation.  Congress's
determination that -- as of now -- broadcast licenses still constitute
a special public resource to be used for the public interest is surely
not unwarranted.

   /60/ Compare, e.g., Minneapolis Star & Tribune Co. v. Minnesota
Commissioner of Revenue, No. 81-1839 (Mar. 29, 1983), slip op. 7
(state tax that singles out the newspaper press for special treatment
cannot withstand First Amendment scrutiny in the absence of "an
overriding governmental interest");  Carey v. Brown, 447 U.S. 455,
461-462 (1980) (statute excluding all non-labor picketing in
residential neighborhoods cannot stand unless necessary to serve a
compelling state interest and statute is narrowly tailored to achieve
that interest);  First National Bank of Boston v. Bellotti, supra, 435
U.S. at 786 (state statute unconstitutional unless state can meet its
burden to show that the challenged restriction is narrowly drawn to
serve a compelling state interest).  See generally Perry Education
Ass'n v. Perry Local Educators' Ass'n, No. 81-896 (Feb. 23, 1983),
slip op. 7-8 (discussion of traditional "public forum" cases).

   /61/ Indeed, at one time, all broadcasters were forbidden to
editorialize.  See In re Mayflower Broadcasting Corp., 8 F.C.C. 333,
340 (1940) ("(A)s one licensed to operate in a public domain the
licensee has assumed the obligation of presenting all sides of
important public questions * * *.  The public interest -- not the
private -- is paramount.").  The Commission lifted this ban, not
because it believed it to be unconstitutional, but because it
concluded that "overt licensee editorialization, within reasonable
limits and subject to the general requirements of fairness * * * is
not contrary to the public interest." In re Editorializing by
Broadcast Licensees, 13 F.C.C. 1246, 1253 (1949) (emphasis added).

   /62/ CBS, Inc. v. Democratic National Committee, supra, 412 U.S. at
110-112.

   /63/ E.g., FCC v. National Citizens Committee for Broadcasting, 436
U.S. 775, 794-802 (1978) (in interest of diversification, FCC may deny
broadcast license to owners of newspaper in same community);
Associated Press v. United States, 326 U.S. 1, 20 (1945).

   /64/ Cf. Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974)
(plurality) (city transit system may refuse to permit political
advertisement to prevent appearance of "favoritism");  United Public
Workers v. Mitchell, 330 U.S. 75, 97 (1947) ("principle of required
political neutrality for classified public servants").  See also
Community-Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d
1102, 1148-1149 (D.C. Cir. 1978) (en banc) (Leventhal, J.,
dissenting).

   /65/ There is no formal proof in the record concerning the amount
of funding received by the Pacifica stations from government sources.
In their Memorandum of Points and Authorities in Support of Motion for
Summary Judgment at 18, appellees asserted that of Pacifica's total
1978 revenues of "nearly $2 million," 14% came from CPB Community
Service Grants" and "8% * * * came from direct federal grants."
Appellees did not assert how much they received from CPB in other
forms or how much they received in indirect federal aid or from state
and local government.  In response to a request for more detailed
funding figures, appellees' counsel later stated that "Pacifica is
reluctant to release any more financial information than is absolutely
necessary" but asserted that in fiscal 1981 "between 20-25% of
Pacifica's gross operating budget (came) from CPB grants" (see
Appendix to Defendant's Supplemental Memorandum on Amendment of
Section 399 (Sept. 14, 1981), App., 2a, infra).

   /66/ See also Community-Service Broadcasting of Mid-America, Inc.
v. FCC, 593 F.2d 1102, 1114-1115 (D.C. Cir. 1978) (executive director
of Maryland Center for Public Broadcasting stated "it would be
unlikely that his viewers would see a program highly critical of the
Maryland General Assembly, since the Assembly is the source of two
thirds of the system's funding");  Lucoff, The University and Public
Radio:  Who's in Charge?, 7 Pub. Telecommunications Rev., No. 5, at
22-26 (Sept./Oct. 1979) (account of administration control of
programming at state university radio station;  concludes (at 26) that
"(s)olving the problem of insulating the programming process from
those who supply the funding has defied the best minds in public
broadcasting");  Thurston, Insulation and Institutional Licensees, 8
Pub. Telecommunications Rev., No. 2, at 10-14 (Mar./Apr. 1980).

   /67/ In recognition of these dangers, some -- but by no means all
-- states have enacted laws to prevent the use of publicly owned
stations for partisan purposes.  See Fla. Stat. Section 229.905(4)
(1977 & Cum. Supp. 1983) (crime to use educational television to
support political candidate);  Ky. Rev. Stat. Ann. Section 168.100(2)
(Bobbs-Merrill 1980) (prohibits political propaganda or "image or
message in the interests of any political party or candidate for
public office");  La. Rev. Stat. Ann. Section 17.2506 (West 1982)
(prohibits presentation of "biased or one-sided aspects of partisan
politics" or advocating or opposing any political candidacy or
legislation);  N.J. Stat. Ann. Section 48:23-9 (West Cum. Supp. 1982)
(prohibiting support of or opposition to political party or candidate
or attempting to influence enactment of legislation);  N.Y. Educ. Law
Section 236 (McKinney Cum. Supp. 1982) (state charter may be revoked
if station used for partisan or political purposes or to influence
legislation);  Okla. Stat. Ann. tit. 70, Section 23-102 (West Cum.
Supp. 1982) (crime for elected official to influence or attempt to
influence public television program content for personal gain or
political baenefit);  R.I. Gen. Laws Section 16-28-3 (1981) (prohibits
sponsorship of any individual's election);  S.D. Codified Laws Ann.
Section 13-47-17 (1982) (state board must assure that facilities not
used to broadcast propaganda or influence legislation).

   These laws show that some legislatures perceived the danger that
state-owned stations might be used for partisan ends.  Ironically the
broad language of some of them, which contrasts with Section 399's
narrow prohibition against editorializing, creates the danger of
authorizing the control of program content by politically appointed
state broadcasting authorities.

   /68/ While appellees now contend that the present system "ensure(s)
that CPB-FUNDED stations will not be vulnerable" to political
influence (Mot. to Dismiss or Affirm 19;  emphasis added), during
debate on the 1978 amendments to the Public Broadcasting Act, appellee
Waxman stated that the Corporation is "composed of political
appointees" (124 Cong. Reg. 37037 (1978)) and added (ibid.):  "Further
steps must be taken * * * to provide a greater degree of insulation
for both (public broadcasting's) funding sources and programming
decisions."

   /69/ The district court relied (J.S. App. 13a) on the fact that CPB
grants are distributed according to "objective, nondiscretionary
criteria." This statement is a considerable over-simplification.  See,
e.g., 47 U.S.C. (Supp. V) 396(g)(2)(B) (discretionary grants to
stations for program production).  The district court cited a passage
in the second Carnegie Commission report noting that the system by
which federal funds were allocated among stations was "'well
positioned to avoid review of program content as a condition for
increased funding'" (J.S. App. 14a n.8, quoting Carnegie II, at 124).
The court failed, however, to note the Commission's conclusion that in
actual practice "the purpose of (the plan) -- the insulation from
annual political review of the system -- has been undermined."
Carnegie II, at 125-126.

   /70/ The personal attack and political editorial rules (47 C.F.R.
73.1920 and 73.1930) apply only in narrow circumstances.  Neither
would apply, for example, if a broadcaster simply editorialized on a
controversial issue of public importance without attacking any person
or group or opposing a candidate.  The broader fairness doctrine would
in that situation require only that the broadcaster provide a
"'reasonable opportunity for the presentation of contrasting
viewpoints.'" 39 Fed. Reg. 26372, 26375 (1974).  The broadcaster would
retain considerable discretion in selecting the opposing spokesman to
be heard, the amount of time to be alloted, the time of day at which
the presentation would be broadcast, and the format to be employed
(id. at 26377-26378).  The fairness doctrine thus does not purport to
put a licensee who editorializes on the same footing as a spokesman
for a contrasting view.  Furthermore, an editorial endorsed by a
"public" station might carry far more weight than any response by a
private individual.  Finally, the FCC has recently proposed modifying
or repealing its personal attack and political editorial rules.
Notice of Proposed Rule Making In re Repeal or Modification of the
Personal Attack and Political Editorial Rules, FCC Gen. Docket No.
83-484 (adopted May 12, 1983).

   /71/ When commercial broadcasters choose to advance their private
political, social, and economic views, they are bounded by "the
acceptance of a sufficient number of (viewers or listeners) -- and
hence advertisers -- to assure financial success * * *" (CBS, Inc. v.
Democratic National Committee, supra, 412 U.S. at 117 (opinion of
Burger, C.J.)).  Inthe case of noncommercial stations, this factor is
less important, since private contributions supply only part of their
budgets.

   /72/ To be sure, in a democracy the very conduct of government
necessarily entails some political advocacy:  government officials
must communicate with the people, explain their programs, and provide
leadership and direction to the nation.  Members of Congress and the
President and his political appointees necessarily participate in
forms of political advocacy.  And because these communications are
"germane to (the officials') duties" (Abood v. Detroit Board of
Education, supra, 431 U.S. at 235), they may properly be supported
with public funds.  But all of that stands on a wholly different
footing from the question presented here -- whether Congress has power
to insist that taxpayer funds not be used to subsidize the propagation
of private political views that may be unwelcome or even repugnant to
many taxpayers.

   /73/ See also Fullilove V. Klutznick, 448 U.S. 448, 474 (1980)
(opinion of Burger, C.J.).

   The fact that two-thirds of all public broadcasting stations are
licensed to state authorities, subdivisions of state government, and
other government-affiliated entities, gives particular relevance to
the line of cases recognizing that "Congress' power to legislate
pursuant to the spending power" includes the authority to "fix the
terms on which it shall disburse federal money to the States."
Pennhurst State School v. Halderman, 451 U.S. 1, 17 (1981).  In
Oklahoma v. CSC, 330 U.S. 127 (1947), the Court upheld a provision of
the Hatch Act prohibiting partisan political activity by state
employees whose principal employment was in connection with a
federally-financed activity.  Insofar as Section 399 applies to
stations licensed to government-affiliated entities, CSC is directly
controlling.

   /74/ The concurring opinion in TWR also supports the
constitutionality of Section 399.  The concurrence was based upon the
fact that a non-profit organization "may use its * * * Section
501(c)(3) organization for its nonlobbying activities and may create a
Section 501(c)(4) affiliate to pursue its charitable goals through
lobbying" (concurring slip op. 2).  Pacifica -- which owns five
stations -- is free to editorialize on any unsubsidized station while
continuing to operate a subsidized one.  Moreover, unlike Section
501(c)(3), which applies to lobbying or propagandizing by any means,
Section 399 applies only to broadcasting.  It does not prevent
Pacifica from editorializing in any other medium.

   /75/ To be sure, Section 501(c)(3) withholds a tax subsidy only if
a non-profit organization engages in "substantial" propaganda
activities, whereas 47 U.S.C. (Supp. V) 399, as amended by the Public
Broadcasting Amendments Act of 1981, Pub. L. No. 97-35, Title XII,
Section 1229, 95 Stat. 730, withholds federal funding if a
noncommercial broadcasting station engages in any editorializing.
However, the principle of TWR would just as clearly apply if the
statute withheld tax exempt status from any organization that engages
in any lobbying.  In enacting such a law, Congress would have "simply
chosen not to pay for (the organization's) lobbying" (slip op. 5).

   /76/ Appellees have argued (Mot. to Dismiss or Affirm 16 & n.9)
that CPB grants do not count as federal subsidies.  However, those
funds are appropriated from the Treasury (47 U.S.C. (Supp. V) 396(k),
as amended by Pub. L. No. 97-53, Title XII, Section 1227, 95 Stat.
727), and the mere fact that they pass through the CPB does not
prevent Congress, in the exercise of its Spending Power, from
specifying how they shall be spent.  Cf. CBS, Inc. v. Democratic
National Committee, supra, 412 U.S. at 149-150 (Douglas, J.,
concurring).  To hold otherwise would bring down the entire structure
of the Public Broadcasting Act, which specifies in some detail how
those grants are to be used.  See 47 U.S.C. (Supp. V) 396(k), as
amended by Pub. L. No. 97-53, Title XII, Section 1227, 95 Stat. 727;
H.R. Conf. Rep. No. 97-208, 97th Cong., 1st Sess. 892-894 (1981).
Whether CPB grants constitute "federal financial assistance" within
the meaning of certain federal statutes (e.g., 20 U.S.C. 1681(a);  29
U.S.C. (Supp. V) 794;  42 U.S.C. 2000d) is not relevant here (compare
Mot. to Dismiss or Affirm 16 n.9).

   /77/ In this regard, appellee's hypothetical (Mot. to Dismiss or
Affirm 17-18) is entirely different from that in our jurisdictional
statement (at 10 n.10).  The government could not prohibit outside
research by a college professor who received a small grant to conduct
research in a particular area because, assuming that he properly
performed the research called for in the grant, the government would
not be financing his other work any more than it would be financing
his private life.  However, to take a hypothetical more analogous to
Section 399, if the government gave him access to a federally financed
laboratory for the purpose of doing the grant research, it could
legitimately insist that he not use the facility for printing
political propaganda pamphlets.

   /78/ There are many other valid statutes based on the same
principle.  For instance, Congress has prohibited the unauthorized use
of federal funds for lobbying (18 U.S.C. 1913), even though lobbying
is protected by the First Amendment.  Congress has also prohibited the
International Communication Agency (the successor of the United States
Information Agency and the Voice of America) from disseminating
information within this country (22 U.S.C. (Supp. V) 1461), despite
the fact that such a restriction would certainly violate the First
Amendment if applied to a private news organization.  And 2 U.S.C.
441c prohibits government contractors from making political
contributions during the life of the contract even though the First
Amendment protects a citizen's right to make such contributions (see
Buckley v. Valeo, 424 U.S. 1, 22-23 (1976)).

   Appendix Omitted