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

   Jurisdictional Statement

                       PARTIES TO THE PROCEEDING

   In addition to the appellee named in the caption, the appellees
include Pacifica Foundation and Henry Waxman.

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   The question is substantial
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                             OPINION BELOW

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

                             JURISDICTION

   The judgment of the district court (App. B, infra, 21a-22a) was
entered on August 5, 1982.  The notice of appeal (App. C, infra, 23a)
was filed on September 3, 1982.  On October 26, 1982, Justice
Rehnquist extended the time for docketing an appeal until December 1,
1982.  The jurisdiction of this Court is invoked under 28 U.S.C. 1252.

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   1. The First Amendment to the Constitution provides in pertinent
part:

      Congress shall make no law * * * abridging the freedom of
      speech, or of the press * * *.

   2. 47 U.S.C. 399, as amended by the Public Broadcasting Amendment
Act of 1981, Section 1229, Pub. L. No. 97-35, 95 Stat. 730, provides:

      No noncommercial educational broadcasting station which receives
      a grant from the Corporation (for Public Broadcasting) under
      subpart C of this part may engage in editorializing.  No
      noncommercial educational broadcasting station may support or
      oppose any candidate for political office.

                          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

   1. Congress enacted the Public Broadcasting Act of 1967, 47 U.S.C.
(& Supp. IV) 390 et seq., in order "to encourage the growth and
development of public radio and television broadcasting, including the
use of such media for instructional, educational and cultural
purposes" (47 U.S.C. (& Supp. IV) 396).  To achieve these goals,
Congress made considerable financial assistance available "to assist
in providing the broadcast facilities necessary to carry educational
radio and television programs * * * (and to encourage the development
of) programs of high quality, responsive to the cultural and
educational needs of the people" (S. Rep. No. 222, 90th Cong., 1st
Sess. 2 (1967)).  At the same time, Congress wanted to prevent the
government's substantial financial support from subjecting public
broadcasters to undue political influence or pressure.  /1/ Thus, to
ensure that the discussion of important public issues would not be
distorted by government funding, Congress enacted several safeguards,
including the predecessor of the provision at issue in this case.  /2/

   In its original form, 47 U.S.C. 399 stated that "(n)o noncommercial
educational broadcasting station may engage in editorializing or may
support or oppose any candidate for political office." The Federal
Communications Commission has construed "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).
/3/ Accordingly, broadcasters are not precluded from airing programs
advocating controversial views as long as editorials are not issued in
the broadcaster's name.  Congress took pains to "emphasize() that
these provisions (prohibiting editorializing) are not intended to
preclude balanced, fair, and objective presentations of controversial
issues by noncommercial educational broadcast stations" (H.R. Rep. No.
794, 90th Cong., 1st Sess. 12 (1967)).

   When the original act was passed, it was generally assumed that all
public broadcasting stations would receive government funding, and the
prohibition against editorializing extended to all public
broadcasters.  /4/ That assumption proved unfounded, /5/ and 47 U.S.C.
399 was amended in 1981 so that the prohibition of editorializing
would extend only to those stations that receive Corporation for
Public Broadcasting funds (Public Broadcasting Amendment Act of 1981,
Pub. L. No. 97-35, 95 Stat. 725 et seq.).

   2. Appellee Pacifica Foundation is a non-profit educational
corporation that owns and operates noncommercial educational
broadcasting stations in five major markets (App. A, infra, 6a).  Its
licensees receive Corporation for Public Broadcasting grants and are
therefore prohibited from editorializing (ibid.).  In 1979, Pacifica
and others /6/ brought this suit in the United States District Court
for the Central District of California challenging the
constitutionality of the provisions of 47 U.S.C. 399 that prohibited
public broadcasters from editorializing or supporting candidates for
political office.  In October 1979, former 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.  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 defend the suit (App. A, infra, 3a & n.3).  /7/

   In April 1981, Attorney General Smith notified the Senate that the
Department of Justice would defend the statute and noted that the
statute could be narrowly construed to avoid constitutional defects.
The government subsequently urged the district court to uphold the
constitutionality of the statute at least insofar as it applied to
publicly-funded stations.  See Defendant's Memorandum of Points and
Authorities in Opposition to Plaintiff's Motion for Summary Judgment
11-20.  While the suit was pending, Congress enacted the recent
amendment of 47 U.S.C. 399 that expressly confines the prohibition of
editorializing to those stations that receive Corporation for Public
Broadcasting funds.  Thereafter, appellees amended their complaint and
abandoned their attack upon the portion of the statute forbidding
public broadcasters to endorse political candidates (App. A, infra,
5a).  Their sole remaining claim was that the prohibition of
editorializing violates the First Amendment (ibid.).

   3. The district court granted summary judgment in favor of
appellees (App. B, infra, 21a-22a).  The court first concluded (App.
A, infra, 11a) that "Section 399 can survive scrutiny under the First
Amendment only if * * * it serves a compelling government interest and
is narrowly tailored to that end." Observing that "regulations such as
Section 399 are presumptively unconstitutional," the court then held
that Section 399 was not supported by any compelling government
interest (ibid.).

   The court refused to accept the contention (App. A, infra, 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 noted (App. A, infra, 12a-13a) that
"(Corporation for Public Broadcasting) funding in 1977 did not
constitute more than approximately 25%" of the budget of the average
station receiving such aid, that "no broadcaster receives more than
approximately 33% of its funds through (such) grants," that Pacifica
allegedly received only 14% of its total revenue from such grants, and
that the amount of Corporation for Public Broadcasting funding was
being reduced.  The court also concluded (id. at 13a-14a) that fear of
government pressure was unfounded because the Corporation for Public
Broadcasting "is an independent, nonprofit, private corporation";
because the Corporation's "funding decisions are based on objective,
non-discretionary criteria";  and because the "fairness doctrine" /8/
prevents broadcasters from presenting "one-sided political
propaganda."

   The court similarly rejected (App. A, infra, 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." The court found no evidence that Congress had enacted
Section 399 for that purpose and that, in any event, such a "concern
(was) not sufficiently compelling to justify the ban on speech imposed
by Section 399 under the First Amendment" (App. A, infra, 17a).  /9/

                      THE QUESTION IS SUBSTANTIAL

   The district court has declared unconstitutional an important
statutory provision that not only serves the vital function of
insulating government-funded public broadcasting stations from
political influence but also prevents the use of public funds to
propagate controversial private views.  The court apparently attached
no legal significance to the fact that the provision of 47 U.S.C. 399
regarding editorializing now applies only to those stations that
voluntarily accept Corporation for Public Broadcasting grants.  The
court therefore applied an unduly strict test in deciding whether that
provision satisfies First Amendment standards.  Based largely upon its
own sanguine assessment of the possibility of government pressure upon
public broadcasters, the court also seriously underestimated the
substantial and legitimate interest served by the provision against
editorializing.

   Congress recently reviewed the need for the provision on
editorializing and decided to retain it in revised form, both because
it was Congress' judgment that the provision meets First Amendment
standards and because Congress continued to believe that it serves
important public needs.  This Court should note probable jurisdiction
to review the district court's exercise of "the grave power of
annulling an Act of Congress." United States v. Gainey, 380 U.S. 63,
65 (1965).

   1. The district court plainly erred in holding (App. A, infra, 11a)
that the prohibition of editorializing by certain public broadcasting
stations "can survive scrutiny under the First Amendment only if * * *
it serves a compelling government interest and is narrowly tailored to
that end." Because the prohibition of editorializing applies only to
those broadcasters who voluntarily receive certain government grants,
that provision is a legitimate exercise of Congress' Spending Power.
"Congress has frequently employed the Spending Power to further broad
policy objectives by conditioning receipt of federal moneys upon
compliance by the recipient with federal statutory and administrative
directives.  This Court has repeatedly upheld against constitutional
challenge the use of this technique to induce governments and private
parties to cooperate voluntarily with federal policy" (Fullilove v.
Klutznick, 448 U.S. 448, 474 (1980) (opinion of Burger, C.J.)).

   This Court has never held or suggested that restrictions on
expression imposed as conditions to the receipt of federal funds must
be supported by a compelling government interest, and it is apparent
that any such blanket rule would lead to absurd results.  Certainly
Congress may direct that federal funds be spent for a particular
purpose and not for others without demonstrating a compelling reason
for its choice.  For example, 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. IV)
1461), despite the fact that such a restriction would certainly
violate the First Amendment if applied to a private news organization.
 If Congress had chosen to establish a state-owned broadcasting
system, as most countries have, rather than subsidizing private
noncommercial stations, there seems little doubt that Congress could
have prohibited officers and employees of the system from
"editorializing" in the name of the system.  /10/

   The prohibition of editorializing at issue here, while not strictly
analogous, nevertheless shares many of the characteristics of the
restrictions noted above.  Recognizing that Corporation for Public
Broadcasting grants are generally unrestricted and thus assist all
aspects of a station's operations (see 47 U.S.C. (Supp. IV)
396(k)(7)), Congress in essence has insisted that no portion of those
grants be used for editorializing.  To be sure, the stations affected
by the provisions on editorializing are not government-owned and
receive only a portion of their revenue from the federal government.
In addition, such stations may claim that their editorials are
produced and broadcast solely with private funds.  But despite these
differences it seems clear that a compelling interest test is
inappropriate in this context since the provision at issue does not
seek to regulate private speech but rather attempts to prevent misuse
of public funds.

   Even where the question of misuse of public funds is much less
directly involved than it is here, conditions restricting expression
may be attached to the receipt of federal funds without showing a
compelling need for those conditions.  For example, as a condition of
their compensation from the public treasury, government employees may
be subjected to restrictions on off-the-job expression that would be
unconstitutional if applied to other persons.  A federal employee may
not hold office in a political party, work at the polls, organize a
political party or club, participate actively in partisan
fund-raising, become a candidate or campaign for many elective
offices, actively manage a partisan campaign, solicit votes for a
partisan candidate, serve as a delegate to a political convention, or
engage in other forms of political activity that would otherwise be
protected by the First Amendment.  5 U.S.C. 7324;  CSC v. Letter
Carriers, 413 U.S. 548 (1973).  In a similar vein, government
contractors may not make political contributions during the life of a
government contract (2 U.S.C. 441c) even though the First Amendment
protects a citizen's right to contribute to a candidate or political
organization (see Buckley v. Valeo, 424 U.S. 1, 22-23 (1976)).

   In reviewing the constitutionality of restrictions imposed upon
public employees' expression off the job, this Court has not applied a
compelling interest test but has balanced the "interests of the
(employee), as a citizen, in commenting upon matters of public concern
and the interest of the (government), as an employer, in promoting the
efficiency of the public services it performs through its employees"
(Pickering v. Board of Education, 391 U.S. 563, 568 (1968);  see also
CSC v. Letter Carriers, supra, 413 U.S. at 564).  If such a balancing
test is applied in this case, then the prohibition of editorializing
satisfied First Amendment standards.  /11/ That prohibition serves at
least two substantial government interests and does not severely
restrict freedom of expression.

   2.a. Both when the Public Broadcasting Act was enacted in 1967 and
when 47 U.S.C. 399 was recently amended, Congress concluded that
restrictions on editorializing were required to insulate public
broadcasting stations from political influence and to prevent
political considerations from affecting the distribution of federal
funds.  /12/ On both occasions Congress noted that editorial policy
could not help but be affected by public subsidies.  As one
Congressman remarked:

         I think it would be a tremendous mistake to put the pressure
      for editorializing * * * on (public broadcasting) stations * *
      *.

         It occurs to me, for example, if the Des Moines Register in
      my own State were receiving public funds its editorial policy
      would be substantially different or otherwise, it 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.
       * * * (It) would probably tend to pull punches.  I think worse
      than having no editorial at all is a station that editorializes
      while at the same time pulling punches.  I suspect there would
      be some subject matters that would not be covered at all or
      otherwise, subject matters that would be covered in a way that
      would not be desirable.

   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. (1981) (remarks of Rep. Tauke).  See
also page 3, note 1, supra.

   If public broadcasting stations were permitted to editorialize,
they might well feel considerable pressure to broadcast editorials
pleasing to those responsible for or able to influence the
distribution of federal funds.  Similarly, if publicly-funded stations
became associated with particular editorial positions, it would be
difficult to prevent political considerations from influencing
decisions regarding the distribution of federal funds.  One need only
envision the political pressure that would inevitably be brought to
bear if newspapers and magazines with well-known political leanings
were financially dependent upon discretionary federal aid.

   Congress is unquestionably experienced in such matters and most
capable of assessing the degree to which the provision of public funds
can cause disruptive influence.  Accordingly, Congress' judgment in
such areas is entitled to considerable judicial respect.  See CSC v.
Letter Carriers, supra, 413 U.S. at 566-567 ("(F)or many years the
joint judgment of the Executive and Congress has been that to protect
the rights of federal employees with respect to their jobs and their
political acts and beliefs * * * '(it is necessary to proscribe)
active participation in partisan political management and partisan
political campaigns.' * * * (T)hat is (Congress') current view of the
matter, and we are not now in any position to dispute it.")

   The district court's reasons for concluding that 47 U.S.C. 399 is
not needed to insulate public broadcasters from political pressures
are not reassuring.  The court first relied (App. A, infra, 13a) upon
the "modest level" of funding provided by the Corporation for Public
Broadcasting.  The court noted (id. at 12a-13a) that for the average
stations affected by the provision on editorializing such grants
constituted not more than approximately 25% of their operating budgets
in 1977, that for no such station did that figure exceed approximately
33% of its budget, and that only 14% of appellee Pacifica's revenue
was allegedly derived from Corporation for Public Broadcasting grants.
 The flaws in the court's reasoning are manifest.  There are myriad
companies, and presumably many public broadcasters, for which even a
14% decrease in net income would spell bankruptcy, and there are
undoubtedly many more for which the result would be a significant
curtailment of operations with the loss of jobs, salary cuts, and
other unpleasant consequences.  The government is by far the greatest
single source of funding for public broadcasters, and alternative
sources of funding capable of compensating for withdrawn government
assistance are not available.  See Carnegie Commission, A Public
Trust:  The Report of the Carnegie Commission on the Future of Public
Broadcasting 93-149 (1979).  Accordingly, the potential influence that
the government may wield as a result of its funding decisions is
substantial.  /13/ In addition, the relevance of the figures cited by
the court is doubtful because the availability of matching funds from
the Corporation for Public Broadcasting induces private contributions.
 See 47 U.S.C. (Supp. IV) 396(k)(6)(B) (ii);  Carnegie Commission,
supra, at 123-127.  /14/

   The district court also suggested (App. A, infra, 13a) that the
fear of undue government influence was "even more speculative" because
of the "protective insulation" provided by the Corporation for Public
Broadcasting.  However, Congress had good reasons to regard that
insulation as insufficient.  First, although we certainly do not mean
to suggest that the Corporation has not faithfully discharged its
duty, it is far from clear that the structure of that body makes its
use for partisan or ideological ends impossible.  The Corporation is
governed by a 10-person board of directors appointed to five-year
terms by the President with the advice and consent of the Senate (95
Stat. 726, 47 U.S.C. 396(c)(1) and (4)), and a majority of the Board
may belong to the same political party (95 Stat. 726, 47 U.S.C.
396(c)(1)).  Thus, a majority of the board could seek to promote the
party to which they belong.  Moreover, board members from both parties
might share a distaste for the minority views expressed by certain
broadcasters.  Second, even if the Corporation's board of directors
did not pressure recipient stations, such pressure might well be
exerted by the Corporation's officers or employees, who might have
strong personal views on certain editorial subjects.  Third,
regardless of whether the Corporation in fact took broadcasters'
editorial positions into account in making funding decisions, stations
might believe that the Corporation would do so.  Finally, the
Corporation cannot insulate public broadcasters from general funding
decisions made by Congress in response to unfavorable editorials.
/15/

   In addition, the district court relied upon the "fairness
doctrine," but Congress certainly had a reasonable basis for
concluding that the fairness doctrine is not adequate by itself to
insulate noncommercial stations from political pressure.  Despite the
fairness doctrine, a group or person capable of wielding influence
might well desire that a public broadcasting station take a favorable
editorial position on a controversial subject.  If such an editorial
was broadcast, all that the fairness doctrine would require is the
provision of reply time for persons with opposing points of view.  See
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 378 (1969).  Thus,
proponents of a particular point of view might well believe that an
editorial endorsed by a "public" television or radio station would
carry far more clout than any response by a private individual or a
spokesman for a private group.  /16/

   In sum, the prohibition of editorializing serves a highly important
government interest because the other safeguards upon which the
district court relied are insufficient to shield publicly-funded
broadcasters from political pressures.  Indeed, despite all these
protections, the Carnegie Commission wrote in 1979:  "(W)e have heard
testimony on numerous examples of federal agency interference in
program content, pressures on the system from congressional and
administrative sources, and a widespread apprehension in the system
after experiencing what it perceived as threats to its survival."
Carnegie Commission, supra, at 101.  Far more knowledgeable than the
district court about the use of political power and influence,
Congress accurately assessed the need to ban editorializing by
stations that receive certain federal grants, and its judgment should
have been honored.

   b. The prohibition of editorializing serves a second highly
important government interest not discussed by the district court:  it
prevents the use of taxpayers' money to promote controversial private
views and thus obviates potential First Amendment problems.  In Abood
v. Detroit Board of Education, 431 U.S. 209, 234-235 (1977), this
Court held that citizens may not be compelled to contribute to
organizations that promote ideological causes with which the
contributors may not agree.  This is so because "contributing to an
organization for the purpose of spreading a political message," as
well as refraining from making such contributions, is protected by the
First Amendment (431 U.S. at 234).  It might therefore raise
constitutional problems to collect tax money from unwilling
contributors and then give it to television and radio stations for the
purpose of propagandizing concerning editorial positions with which a
great many taxpayers might disagree.  /17/ This problem is magnified
because of the tremendous power of the broadcast media, the scarcity
of broadcast frequencies (see Red Lion Broadcasting Co. v. FCC, supra,
395 U.S. at 388), and 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.

   Thus, the use of tax dollars to subsidize editorializing by the
owners of noncommercial broadcasting stations is not unlike the
expenditure of large amounts of public funds to propagate the views
held by persons who happen to own any other business -- say, shoe
stores or supermarkets.  The rationality and fairness of such a scheme
would certainly be open to question.  As one member of Congress put it
(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. (1981) (remarks of Rep. Moorhead):

         There is nothing in the First Amendment that guarantees that
      the Federal Government will give one person a bigger horn than
      somebody 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.

   Congress' judgment concerning the protection of First Amendment
interests in this area is entitled to respect.  See Columbia
Broadcasting System, Inc. v. Democratic National Committee, 412 U.S.
94, 102-103 (1973).

   3. On the other side of the balance, the restriction upon
expression by noncommercial educational stations is not severe.  The
FCC has interpreted "editorializing" to mean only the expression of a
licensee's views by its management or a management spokesman (In re
Complaint of Accuracy in Media, Inc., supra, 45 F.C.C.2d at 302).  The
Commission has stated (ibid.) that the prohibition of editorializing
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." Therefore, 47
U.S.C. 399 allows station employees, journalists, academics, experts,
and all other persons to express their views freely.  Subject to the
fairness doctrine, political figures may be invited to give their
opinions.  Any news subject may be covered in any manner.  Any
documentary or entertainment show may be aired.  Any spokesman for any
group may be permitted to speak or may be interviewed by any
interviewer of management's choice.  In addition, the prohibition of
editorializing is strictly neutral;  it makes no effort to restrict
only those expressions of opinion with which those in positions of
authority might disagree.

   Moreover, any station that finds the ban on editorializing unduly
restrictive may simply decline Corporation for Public Broadcasting
grants.  If such grants constitute only a small percentage of a
station's budget, as the district court seemed to believe (see App. A,
infra, 12a-14a), then the burden of doing without them should not be
great.  If, on the other hand, the station could not continue
operations without such grants, then management cannot legitimately
claim the right to express its own views with public funds.

                              CONCLUSION

   Probable jurisdiction should be noted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   SAMUEL S. ALITO, JR.

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

      Attorney

   DECEMBER 1982

   /1/ See 113 Cong. Rec. 26383 (1967) (remarks of Rep. Staggers:
"(A) concern, shared by all members of the committee (is) that the
proposed (Legal Broadcasting) Corporation could become an instrument
for political propaganda.  We think we have solved the problems with
extensive legislative language in the bill");  id. at 26392 (remarks
of Rep. Watson:  "There is another potential danger.  This Corporation
could (become) a propaganda monster * * *");  id. at 26394 (remarks of
Rep. Brotzman:  "The fear of Government control of programming was
recurrent during consideration of this bill by my committee.  (The
amendment that, inter alia, prohibits editorializing) will prevent
this corporation from becoming a Government propaganda tool");  id. at
26399 (remarks of Rep. McClure:  "(I am concerned that) programs
produced by the Corporation will be used for propaganda purposes, to
encourage a particular political philosophy or to keep a political
party in power");  id. at 26407 (remarks of Rep. Springer);  id. at
26408 (remarks of Rep. Brown);  id. at 26412 (remarks of Rep.
McCormack).

   /2/ In addition to the prohibition against editorializing and
supporting political candidates, the Act now provides that many
federal grants to public broadcasting are to be made by a private,
nonprofit corporation, the "Corporation for Public Broadcasting";
that members of the Corporation's board of directors may not be
employees or officers of the United States;  that no more than six of
the 10 members of the board may belong to the same political party;
and that the corporation may not own or operate any public
broadcasting station (95 Stat. 725-726, 47 U.S.C. 396(c)).  In
addition, no federal official is authorized to direct or control any
of the corporation's activities or to direct or control the content or
distribution of programs (47 U.S.C. 399).

   /3/ The Federal Communications Commission is charged with the
administration of 47 U.S.C. 399.  See 47 U.S.C. 151.

   /4/ See, e.g., 113 Cong. Rec. 26416 (1967) (amendment proposed by
Rep. Devine, which would have authorized $5 million to be "divide(d)
equally and distribute(d) among educational broadcasting stations in
the United States which are in existence on the date of enactment").

   /5/ In 1970, as described by the Carnegie Commission on the Future
of Public Broadcasting, the Corporation for Public Broadcasting
determined to target its grants so as "to create a core of
well-financed, professional stations * * * (and) to encourage stations
seeking CPB aid (who were) dedicated to general educational or
cultural service, rather than strictly institutional service or
religious programming * * *." Carnegie Commission, A Public Trust:
The Report of the Carnegie Commission on the Future of Public
Broadcasting 189 (1979).

   /6/ The League of Women Voters of California and Representative
Henry Waxman are also plaintiffs in this suit.  The district court did
not resolve whether these plaintiffs have standing to bring this
action since their complaint, as ultimately amended, did not seek
relief independent of that sought by Pacifica (App. A, infra, 7a).

   /7/ The district court granted the Senate's motion to dismiss the
complaint on the ground that there was no justiciable controversy
because the government had decided not to enforce the statute (App. A,
infra, 4a).  Plaintiffs appealed, and during the pendency of the
appeal, the Attorney General notified the court of appeals of his
decision to defend the suit.  The court of appeals then 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.).

   /8/ The "fairness doctrine" imposes on all broadcasters -- public
and commercial -- two affirmative responsibilities:  "coverage of
issues of public importance must be adequate and must fairly reflect
differing viewpoints." Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U.S. 94, 111 (1973).

   /9/ Because the court held that Section 399 violates the First
Amendment, the court did not rule upon Pacifica's claim that that
provision also violates the equal protection guarantee contained in
the Due Process Clause of the Fifth Amendment (App. A, infra,
18a-20a).

   /10/ Other, even more obvious, examples come readily to mind.  For
example, privately employed scientists undoubtedly have the
constitutional right to choose their own areas of study, but a
scientist who accepts a government grant to conduct research in a
certain area may be required to abide by the terms of the grant even
if the government cannot demonstrate a compelling interest in
obtaining research in the area it has chosen rather than in another
area viewed by the scientist as more beneficial.

   /11/ Even if the prohibition of editorializing applied to all
noncommercial broadcasting stations, the test employed by the district
court would be incorrect.  Because of the scarcity of broadcast
frequencies (see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388
(1969), the government may take reasonable steps to allocate this
scarce public resource fairly, even though comparable measures would
not be permitted with respect to the print media or other forms of
expression.  For example, a broadcaster may be deprived of his license
if the Federal Communications Commission determines that such an
action would serve "the public interest, convenience, and necessity."
47 U.S.C. 309(a).  See FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946).
In the interest of diversifying control of the media of mass
communications, the FCC may "den(y) (broadcasting) licenses to
newspapers owners." FCC v. National Citizens Committee for
Broadcasting, 436 U.S. 775, 794 (1978).  Broadcasters may be required
to grant those whom they criticize the use of their facilities to
reply to the attacks.  Compare Red Lion Broadcasting Co. v. FCC, supra
(fairness doctrine constitutional), with Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241 (1974) (statute providing right to reply in
newspaper unconstitutional).  This Court has not demanded proof of a
"compelling" government interest when called upon to assess the
validity of such laws, which do not seek to regulate any particular
point of view but, like 47 U.S.C. 399, simply attempt to keep the
"market-place of ideas" (Red Lion Broadcasting Co. v. FCC, supra, 395
U.S. at 390) free of distorting influences.  Rather than insisting
upon proof of a compelling government interest in such circumstances,
this Court has balanced the public interests sought to be served by
the regulation against the restrictions placed upon broadcasters.
See, e.g., Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at
386-392.  Such an approach is appropriate to the provision at issue
here, which seeks to allow the government to support educational and
cultural broadcasting without distorting public discussion of
important and controversial issues.

   /12/ In 1967, Congress noted that "(c)onsiderable testimony was
heard that no noncommercial educational station editorializes," but
nevertheless forbade editorializing "(o)ut of an abundance of
caution." H.R. Rep. No. 572, 90th Cong., 1st Sess. 20 (1967).  The
district court failed to note the context in which the phrase "(o)ut
of an abundance of caution" was used and therefore came to the
incorrect conclusion that Congress believed that other provisions of
the Public Broadcasting Act were sufficient to shield public
broadcasters from political pressures (App. A, infra, 15a).  Instead,
however, Congress viewed the problems posed by editorializing as so
significant that it prohibited editorializing even though it was not
then practiced by any public broadcasting station.

   /13/ For example, the Carnegie Commission noted that corporations,
which provide a significantly smaller amount of funds to public
broadcasting stations, have "undoubtedly skewed the total schedule in
the direction of cultural programs which are popular among the
'upscale' audiences that corporations prefer.  Controversial drama,
documentaries, public affairs, and programs for minorities must then
compete for remaining discretionary money." "(E)ditorial freedom does
not thrive in such circumstances." Carnegie Commission, supra, at 107,
105.

   /14/ Federal agencies other than the Corporation for Public
Broadcasting, such as the Departments of Education and Commerce, the
National Endowment for the Arts, and the National Endowment for the
Humanities, as well as state and local governments, provide
substantial funding for noncommercial broadcasting stations.  See
Carnegie Commission, supra, at 101, 113.  Hence, if such stations were
permitted to editorialize, their incentive to express views they
believe would please the government would be far greater than the
district court's percentages suggest.

   /15/ The district court relied (App. A, infra, 13a) upon the fact
that Corporation for Public Broadcasting grants are distributed
according to "objective, nondiscretionary criteria." Neutral formulas,
however, obviously cannot affect the total appropriation for such
grants.  Perhaps more important, Congress was not unduly cynical in
judging that a system of neutral laws does not always suffice to
prevent partisan or ideological bias from affecting the implementation
of those laws.

   In this regard, the district court cited a passage in the Carnegie
Commission report that noted that the system of matching grants by
which federal funds are allocated among stations "'is well positioned
to avoid review of program content as a condition for increased
funding'" (App. A, infra, 14a n.8, quoting Carnegie Commission, supra,
at 124).  The district court, however, failed to note the Commission's
conclusion that while "the theory of a matching formula for funding
public broadcasting is sound * * * (in actual practice) the purpose of
(the plan) -- the insulation from annual political review of the
system -- has been undermined." Carnegie Commission, supra, at
125-126.

   /16/ At one time, all broadcasters were forbidden to editorialize.
See, e.g., In re The 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.") In 1949, the FCC supplanted this approach with the
"fairness doctrine" (Red Lion Broadcasting Co. v. FCC, supra, 395 U.S.
at 377).  However, the Commission was there dealing with commercial
stations, which of course are far less susceptible to government
influence than are stations heavily dependent upon government funds.

   /17/ When commercial broadcasters choose to advance their private
"political, social, and economic views (they are) bounded by only two
factors:  first, the acceptance of a sufficient number of readers --
and hence advertisers -- to assure financial success;  and, second,
the journalistic integrity of its editors and publishers" (Columbia
Broadcasting System, Inc. v. Democratic National Committee, 412 U.S.
94, 117 (1973) (opinion of Burger, C.J.)).  In the case of
noncommercial stations, the first factor may be less important.
Private contributions supply only part of their budgets, and those
able to make such contributions may not constitute a representative
sample of the audience.

   Appendix Omitted