Say Cheese: The Constitutionality of State-Mandated Airtime on Public Broadcasting Stations in Wisconsin

I. INTRODUCTION On July 26, 2002, the State of Wisconsin, as part of a comprehensive budget bill and campaign finance reform package, required the State Board of Elections to promulgate rules that require all public television stations (including cable access channels) to provide a minimum amount of free airtime to state candidates for elective office and to offer the same amount of time to all state candidates in each race. (1) On the same day it was enacted, this law was challenged in federal court on the basis that it was preempted by federal law and violated the First Amendment free speech rights of public broadcasters. (2) On December 11, 2002, the U.S. District Court for the Western District of Wisconsin (Judge Crabbe presiding) rejected the plaintiff's motion for judgment on the pleadings and ruled that the state law was not preempted and that the First Amendment issues were not yet ripe for review. (3) However, this decision has the potential to render both substantial harm to Wisconsin's public television stations and to create a harmful precedent for other state chartered public broadcasters throughout the nation. An examination of the state's Web site reveals that Wisconsin's law could require public television stations in Wisconsin to give free air time for multiple candidates in over 400 elective races, including thirty-three state senate districts, ninety-nine state assembly districts, six statewide executive races, and races for the entire judicial branch. Based on information from the Wisconsin State Board of Elections Web site, it was estimated that for the 2002 election year alone, there were 202 races for elective office with 295 candidates on the ballots. (4) The effect of the law would therefore be quite extensive and arguably quite debilitating for a centrally programmed statewide public broadcasting system. Moreover, this ruling presents a number of issues of national importance that reach beyond the effect of Wisconsin's law on Wisconsin public television stations. Two-thirds of the public television stations in the United States, operating in twenty-nine states, are managed by statewide public broadcasting systems like Wisconsin Public Television. (5) These systems are typically run by state-chartered but structurally independent commissions, authorities, boards, nonprofit corporations, or universities and provide a valuable and independent noncommercial, educational voice in those states, consistent with federal law, state charters and industry standards. (6) However, despite this structural independence, the temptation of states to dictate the programming choices of these broadcasters is great. For instance, three years ago, the State of Idaho imposed content restrictions on its public television system after the system aired a series of programs that were deemed objectionable, restrictions that have since been abandoned. (7) Prior to that, the State of Mississippi forbade its statewide public broadcasting system from airing programming by an organization that advocated healthy approaches to sexuality, a law that is still operative today. (8) In addition, New Jersey has required its public broadcasters to pay special attention to that state's gubernatorial race and has required fairness and equity in political coverage of state races. (9) Moreover, the State of Rhode Island has required that its public television station must provide free airtime to state candidates who qualify for and accept state funding. (10) The district court's decision raises several questions of importance for public broadcasting throughout the nation. First, to what extent is the state regulation of public broadcasting preempted by federal law, and under what circumstances is there room for concurrent state regulation? Second, to what extent does state regulation like the Wisconsin law unacceptably interfere with the First Amendment free speech rights of public broadcasters? Both questions require a careful consideration of the interaction between federal and state law governing public broadcasting and the extent to which state-chartered public broadcasters are created to exercise editorial independence. …