William H. Rehnquist: We'll hear argument first this morning in Number 89-453, Metro Broadcasting, Inc. v. Federal Communications Commission. Mr. Guillot.
Gregory H. Guillot: This case involves the FCC's policies of awarding substantial preferences in comparative licensing proceedings to certain minority and female applicants for new television and radio broadcast stations throughout the United States. The Petitioner Metro in 1982 filed its application for a construction permit for a new UHF television station at Channel 60 in Orlando, Florida but ultimately lost in the comparative contest due to Rainbow Broadcasting Company, the Respondent intervenors', enhancement credits for minority and female ownership composition. This outcome, along with the preferential treatment policies resulting in it, was upheld by the U.S. Court of Appeals for the District of Columbia circuit by a 2-1 decision. The lower court's holding had followed an initial remand in the case and the remand of the record in the case as part of an active investigation into the factual statutory and constitutional underpinnings of the Commission's preference policies. During the remand, the Commission had held all cases in abeyance, including the present one, pending its determination regarding whether the policies were ordinarily tailored and otherwise constitutional. But in 1987 the Congress passed an appropriations act defunding the Commission's inquiry and specifically directing that this case be decided in accordance with the minority and female preferences that existed prior to the remand. The issues presented in the case are twofold: One, whether the Commission's policies of awarding the preferences, which were created absent any findings of past discrimination and for the sole purpose of promoting program diversity, violate the equal protection component of the due process clause of the Fifth Amendment. And secondly, whether the congressional entrenchment of the communications... the Federal Communications Commission's policies and its other associated actions in the appropriations act violated the equal protection clause of the Fifth Amendment or exceeded its authority, whatever authority it has under the Fourteenth Amendment. This case is unlike other so-called affirmative action cases which this Court has heard in the past. Unlike the model program approved in Fullilove or the academic admissions system hypothetically approved by the Court in Bakke, in this case the preference programs of the FCC have resulted in actual discrimination against Metro Broadcasting which, importantly, is a corporation comprised of both a minority member and nonminority members. Unlike the program under review in Fullilove, the programs reviewed in Wygant or Croson, the FCC's preference policies are not founded on the remedying of past discrimination but upon the pursuit of program diversity, an amorphous concept which, as we shall examine, has intense First Amendment implications as well. Unlike the other programs reviewed by this Court in the past, three separate governmental entities, not just one, have had a hand in establishing or perpetuating the Commission's policies: the courts, the FCC and the Congress. But regardless of these distinctions between this case and past cases, one thing is for certain; and that is, that the Commission's policies impose race, gender and ethnic-based classifications and that those classifications, we feel, are presumptively invalid but, at minimum, they require close examination. Metro recognizes that there--
Antonin Scalia: Excuse me, Mr.--
Gregory H. Guillot: --is diversity of perspective--
Antonin Scalia: --Excuse me, Mr. Guillot.
Gregory H. Guillot: --Yes, Justice Scalia.
Antonin Scalia: Is... is... is it clear that the gender-based issue is necessarily before us here?
Gregory H. Guillot: It is absolutely clear, in our opinion, that the gender-based issue is... is before the Court for several reasons. First of all, the lower court did not consider gender. It only considered the minority preferences because of dicta contained in the Commission's denial of Metro's application for review that said that the minority... it was not clear that the gender preference, being only a 5 percent one, was dispositive in the case. However, on remand, in an actual order of the Commission, which we feel is what this Court should review, the Commission held that the minority and female preferences together were dispositive, and that was the holding of the review board as well. This Court is to review judgments, we feel, as Justice Stevens pointed out in Fullilove at page 411, note 6, and Black v. Cutler Labs, and not just statements such as the one accompanying the Commission's denial of Metro's application for review. But there is... there is a more important reason, Your Honor, and that is that in this case, as we shall examine, the minority and female preferences are pitted together in a comparative licensing proceeding. They are not... neither one of them... are considered separately, and you really can't examine one without examining the other. And you can't really examine the tailoring of the program without examining how the two... the two preferences fit together, both the gender and the minority and ethnic preferences.
Antonin Scalia: You wouldn't win if we just found the racial preferences invalid? Is that what you're saying?
Gregory H. Guillot: It's a close call, Your Honor. I feel that we would, but what... but the more important thing is what the result would be for the Commission's comparative process and the remainder of the people that have to go through it for the next few years. If for some reason, the minority preference classification is struck by this Court as invalid but the gender classification stands, then people are going to start searching for a difference in the rationale between the two policies.
William H. Rehnquist: We... we don't ordinarily want to give sweeping decisions if they don't affect your particular case. Are you saying that it would be sufficient for your case to decide solely the minority preference and not the female preference?
Gregory H. Guillot: Actually, it would not, Your Honor, because Metro prevailed on the... on the other criterion recognized by the Commission below, particularly local residence and civic participation. Now the... the minority enhancement policies have the... the minority enhancement credit has the same weight as the weight given for local residence, so that neutralized the local residence factor in this case. In order to understand why Metro still lost, the female preference has to defeat the civic participation credit which Metro received in the case, and that is the only thing to explain why all of Metro's comparative qualifications were not sufficient for it to prevail over Rainbow.
Antonin Scalia: You... you mean it's clear that the Commission would have reached the same result had it not given your opponent the racial preference? Is that clear?
Gregory H. Guillot: That is not clear, Your Honor.
Antonin Scalia: Well, if that's not clear then we can't affirm the Commission's decision if we invalidate the racial preference; isn't that right?
Gregory H. Guillot: The Commission's decision, we don't feel, can be... can be affirmed on any grounds, but the racial and gender preferences had a synergistic effect in the present proceeding. That's our... that's our position, and the reason this is somewhat confusing now is because we have an--
Antonin Scalia: I don't think it's confusing at all. It's... it was a central part of their decision, and if that's invalid their decision cannot stand. It will have to be remanded. Now they may on the remand apply the sexual preference and come to the same result, but a remand would still be necessary.
Gregory H. Guillot: --But we... a remand is certainly a possibility, and though we don't favor one we're not discounting it. But unfortunately, neither the review board's decision nor the Commission's decision says what the exact weight was that was accorded between the minority and female preferences in this case. They both list them together in the same sentence and say that together they resulted in the outcome.
John Paul Stevens: May I just ask you this? Supposing I concluded that the racial preference was invalid and the gender preference was valid. How should I vote?
Gregory H. Guillot: I still think, Justice Stevens, that you should vote for the invalidation of both--
John Paul Stevens: I understand that, but that's not my question. [Laughter] Can you... can you answer my question?
Gregory H. Guillot: --I think that you should... you should vote to... to award the construction permit to Metro, and if... and if it's not clear in the record as to what the separate bases were for the two preferences, then a remand is a possible--
John Paul Stevens: The simple answer to my question is if I think the racial preference is bad and the gender preference is all right, I should still vote to reverse. That's what you're telling me?
Gregory H. Guillot: --We feel that you should, Your Honor, but again, we're limited by the judgment of the review board and the FCC, and it's not clear that they feel the same way.
John Paul Stevens: But if that's the disposition, then I would not have to reach the gender preference.
Gregory H. Guillot: We feel that there are serious consequences in not reaching the gender preference.
John Paul Stevens: Well, I understand, but as you have just told us we review judgments. We don't have to decide all the future cases that come down the line.
Gregory H. Guillot: That's right, Your Honor. Well, a remand is a possibility, Your Honor, if you were to uphold one of the preferences and not the other, and we're open to that. But as... as we go along, we feel that the... that the two must be considered together. The Commission has said that the rationale underlying the two preferences are the same, and the only reason that people wanted them considered separately is because no one wants to focus on the way that the two policies operate together, and that is one of the burdens that's imposed upon not only nonminorities but minorities under the Commission's preference plan. To the extent that female ownership is said to contribute to program diversity and that it's valuable, every time a female applicant comes against an applicant that has a minority principal, that value is defeated, and so there is also an impact on minorities and females that have been... that are the acknowledged beneficiaries of the program. In order to clarify these things a little bit, I think it's important to look at the way that these policies developed and how the weights of the two policies really came about. The Communications Act of 1934 gave the Commission a broad public interest mandate in awarding licenses for broadcast stations, and it said that in making a grant of any application it was to determine that the public interest would be served thereby. If more than one applicant applied for a broadcast station, a comparative hearing must be held to determine which of the applicants would provide the best service to the public in favor of the public interest. The Communications Act didn't establish any criteria for rendering this determination, and after many years of trial and error, in 1965 the Commission passed its Policy Statement on Comparative Broadcast Hearings, which identified two general goals which were to govern the entire licensing process. The first was to effect a maximum diffusion, or diversification of control of the media of mass communications. This was a goal that had grounds in both antitrust and First Amendment considerations. Given the presumed scarcity of the broadcast spectrum, the antitrust considerations would disfavor one person or just a few people having control over all of the media outlets in the United States. The second acknowledged goal of the program is to achieve the best practicable service to the public. This criteria, unlike the diversification criterion, was based on an examination of what the proposed broadcaster would do for the local community, for the community of license that was proposed. In the old days, prior to the deregulatory era, potential licensees had to go out into the communities and ascertain the community needs by interviewing public officials, interviewing minority groups and finding out what gaps needed to be filled in programming. Those requirements are no more. The Commission prepared criteria from the 1965 Policy Statement originally were race neutral. That changed, however, in 1973. TV 9 v. FCC was the D.C. Circuit Court of Appeals' direction to the FCC that minority ownership must be taken into account in accordance with the public interest standard... mandate of the FCC. But the decision didn't really clarify where it was to be taken into account in the Commission's comparative process, and there has been a lot of question about that. The rationale for taking race into account expressed in TV 9 was that there would be a maximum diffusion of ownership of the media of mass communications if we kind of broke up concentrations of certain minority... certain majority groups in the media. It was a diversification-based criteria. Pursuant thereto, the Court said that it's upon ownership that the public policy places primary reliance with respect to diversification of content. All of the content language in TV 9, all of the goals of serving program diversity, were really supposed benefits of pursuing the primary goal of diffusion of the media of mass communications. The FCC in 1978 did not give a preference for minority ownership under the diversification criterion, however, notwithstanding this language in TV 9. In WPIX, the Commission chose to award enhancements under the best practicable service criterion, a criterion not grounded in whether one group has control over the media, but a criterion grounded in a determination of which applicant could best serve the public interest. Which is the most qualified? Which would be superior in its proposal?
Sandra Day O'Connor: Mr. Guillot, it is true, I suppose that very few licenses are owned by people of minority race.
Gregory H. Guillot: That's true, Justice O'Connor.
Sandra Day O'Connor: And perhaps the situation is such that it would justify some remedial action. Is that possible? Do you think that the situation might be such that it would be... it would meet the Wygant test, for example, for some kind of remedial action?
Gregory H. Guillot: Your Honor, Metro is not against affirmative action programs per se, and we feel that there might well be a need for remedial action. However, there's a couple of problems.
Sandra Day O'Connor: Then who could take that action? The Congress or the FCC or both?
Gregory H. Guillot: Only Congress, Justice O'Connor, because we feel that under Section 5 of the Fourteenth Amendment, only Congress, and uniquely Congress, has that broad kind of power to remedy societal discrimination. But again, it would have to be discrimination... it's a constraint against discrimination by the states, and it's questionable, even if Congress could constrain--
Sandra Day O'Connor: Well, Congress took some kind of action here. How should we view the action that Congress took?
Gregory H. Guillot: --The action of Congress at best should be viewed as an unconstitutional attempt to impose a remedial action on the Commission to perpetuate these policies without any findings of past discrimination.
Sandra Day O'Connor: Should we... should we take it as a given, then, that Congress was acting to achieve remedial ends?
Gregory H. Guillot: Well, that's not a given, Justice O'Connor, because as you have said in the Croson decision, underrepresentation in and of itself is not evidence of past discrimination, and in the 1987 hearings before Congress, in the 1989 hearings before Congress regarding minority ownership, it was made clear both by commissioners that testified before Congress and Congress that there was... that the underrepresentation was the sole indicia of the supposed past discrimination.
Anthony M. Kennedy: Well, suppose that we had a difficult time establishing that state discrimination was responsible for this disparity in minority ownership, couldn't the Congress, pursuant to its commerce powers or pursuant to the powers it has to regulate the airwaves, which essentially comes from the commerce power, simply say that as a matter of sound policy we want minority ownership? Why do we need the Fourteenth Amendment when we're acting in an area which is acknowledged to be an exclusively Federal area?
Gregory H. Guillot: Well, the Fourteenth Amendment is only applicable insofar as Congress perceives this as a remedial measure, Your Honor.
Anthony M. Kennedy: Well, but why is Congress limited to the Fourteenth Amendment when it makes... when it has a remedial program?
Gregory H. Guillot: No, Congress is limited to the Fourteenth Amendment, we believe, when it seeks to redress society-wide discrimination. In Wygant, the Court seemed to indicate that society-wide discrimination couldn't be taken into account at all, but subsequent clarification has indicated that Congress, pursuant to that unique power under Section 5 of the Fourteenth Amendment, can redress society-wide discrimination. Again, there's no finding--
William H. Rehnquist: Mr. Guillot?
Gregory H. Guillot: --Yes, Mr. Chief Justice?
William H. Rehnquist: Are you saying that Congress' power under Section 5 goes further than to redress discrimination caused by states, who are the ones that are subject to the Fourteenth Amendment?
Gregory H. Guillot: It goes far enough to... that's not clear by the decisions of this Court, quite honestly, Your Honor. The power goes far enough to redress society-wide discrimination it's been stated, but on the other hand, the rationale for that has always been grounded in the Section 5 positive grant of power to Congress and the Article 1 restriction on the states.
William H. Rehnquist: Congress itself is limited by the equal protection component of the Fifth Amendment, isn't it?
Gregory H. Guillot: Under Bolling v. Sharpe and other cases, yes, Your Honor. And that's one problem, is if we do not isolate Congress' broader remedial power, Justice Kennedy, under the Fourteenth Amendment, then it is left to be constrained by the Fifth Amendment as to what type of distinctions it can impose.
Anthony M. Kennedy: Has there been any argument by the FCC or the competing applicants here who rest on their minority credentials, has there been any argument that the FCC has in any way furthered discrimination by its past licensing activities?
Gregory H. Guillot: Absolutely not, Your Honor, and that is clear. The Commission testified to that effect... Ronald K. Porter on behalf of the Commission in September '89, already after this Court had granted our petition for certiorari... that the FCC has never adopted remedial rationale, that there's never been a finding of any past discrimination on the part of the agency or in its licensing practices or in any other way. And it's clear if you look at the comparative process that it would be difficult for any type of discrimination to enter into it, because the only criteria that you have to have besides certain... or the only qualifications you have to have besides certain financial and technical ones, is local residence, which is presumed to serve the community that the station is to be located in, civic participation within the community, which is part of a local residence background.
Sandra Day O'Connor: Has the FCC ever concluded that their... that a prima facie case, at least, exists to show some discrimination in the allocation of licenses in the past?
Gregory H. Guillot: Your Honor, the FCC has done exactly the opposite. On countless occasions they have stated in no uncertain terms that there is no remedial basis for the programs whatsoever. We feel the focus in this case needs to be on the Commission's program diversity goal, therefore, because under FCC v. Chenery, this Court really we don't feel should review a position that the Commission itself did not take in adopting the program.
Sandra Day O'Connor: Well, has the FCC ever assessed whether broadcasting does present presently diverse viewpoints?
Gregory H. Guillot: Actually, I was just looking at a First Amendment case, Your Honor, that was before this Court. The Federal Communications v. WNCN Listeners Guild, and this case is replete with references by this Court and by the Commission that diversity in the market... diversity of programming is assured by the marketplace and the operations of the marketplace. It is not assured any other way. It can only come from the marketplace. It's questionable whether the Commission's policies even promote program diversity, Your Honor, a goal that it equates with the First Amendment value of the widest possible dissemination of information from diverse and antagonistic viewpoints. Despite this very broad phrasing of the program diversity goal, however, the Commission's entire efforts to enhance program diversity consists of the enumeration of six classifications. No other classifications are recognized as having any potential contribution to program diversity. The views of gays and lesbians underrepresented obviously in the media, although there similarly have been no studies on that fact, are underrepresented in the media, but there is no way they can receive credit for their potential contribution to program diversity. A Holocaust survivor from the Nazi days, there is no way. That person would potentially, we feel, have some contribution to make to program diversity. There is no recognition for that. The Commission's goal does not seem to be program diversity--
William H. Rehnquist: Well, what are... what are the six classifications? Can they be shortly stated?
Gregory H. Guillot: --I hope so.
William H. Rehnquist: I do, too. [Laughter]
Gregory H. Guillot: They are gender, black ownership and participation, Pacific Islanders, Alaskans... Aleutians are really what is specified there... Asians and Hispanics. That's it. Those are the only classifications that are recognized as having an impact on program diversity, and there is no way to assure that other groups that have been hitherto unrecognized would have access or potential contributions to diversity under--
William H. Rehnquist: What... what other standards for program diversity does the Commission have, I mean other... other than the minority aspect?
Gregory H. Guillot: --The Commission has... Your Honor, this is a key point in the case, we feel. The diversification of control factor, that's the predominant consideration, and we feel that program diversity is really just a muddled restatement of this diversification criterion. The diversification criterion which is intended to diffuse control in the media of mass communications by limiting the number of stations someone can own is said to be grounded in the supposition that perhaps this will result in a greater degree of programming, a greater variety of programming. Now this Court has acknowledged--
Antonin Scalia: You... you don't really agree with that anyway?
Gregory H. Guillot: --Pardon me?
Antonin Scalia: You don't really agree with that policy, either, because you just said a little time ago that... that, in fact, the programming will be determined by what makes money. These are all profit stations we're talking about here, right?
Gregory H. Guillot: We don't agree with that notion at all, Your Honor.
Antonin Scalia: So the... the evil of having one person own it is probably not... not an evil of not having diverse viewpoints but an evil of... of restricting advertising rates or things of that sort?
Gregory H. Guillot: We feel... we feel that that's absolutely correct, Your Honor, and it's even more correct now than it ever was before because there are more stations and more sources of information and viewpoints to the public than there have ever been before, from cable television to wireless transmissions to satellite dishes. There is more diversity. There are more sources for possible diversity than there has ever been before. So we feel that, really, program diversity is a misnomer. What the Commission is trying to do, which Justice Powell had insinuated in Bakke and subsequent cases it was not permissible, is simply to prefer one or actually six groups over any other possible groups.
Antonin Scalia: The FC... the FCC and the licensed companies suggest that this policy is not just any more a Commission policy, that it's been adopted by Congress.
Gregory H. Guillot: Well, that's right, Your Honor.
Antonin Scalia: We don't know the basis on which Congress adopted it, do we? Maybe Congress was using it for some purpose other than diversity.
Gregory H. Guillot: Well, we feel that they were, Your Honor. Congress, as a matter of fact, specifically said in the appropriations legislation... if the legislative history is read and the conference report is read, Congress said that we are doing this in order to promote diversification of ownership. I am convinced, Your Honor, that Congress' ratification of the FCC's policy is based on its belief that the FCC in comparative licensing proceedings is considering race under the diversification criterion. It is clear in this brief filed by the United States Senate in this proceeding, the amicus brief, that Congress does not understand either the operation of the Commission's processes and the various components in it or where this recognition of minority and female ownership was placed. Contrary to being of the notion that it's a considered decision of Congress based on its broader mission to investigate all facts, which the Senate and the FCC cite as relevant, all evidence in this proceeding shows that Congress didn't even know what was going on with respect to the minority and female enhancement policies.
Antonin Scalia: We... we enforce congressional statutes whether they knew what was going on or not. [Laughter] If they... if they write a statute, it has independent operative effect, doesn't it? They don't even--
Gregory H. Guillot: Sure, and we don't deny--
Antonin Scalia: --read about it. Each of them can work at home and come in and vote on the basis of his own research. They don't have to have a committee meeting, do they?
Gregory H. Guillot: --And we don't deny that Congress generally or even all the time makes their decisions on that basis, but we need to look closer when we find that they're making decisions that impose race, ethnic and gender-based classifications upon society in violation of the equal protection principles.
Antonin Scalia: xxx categories Congress has to make a record, is that it? It's sort of a due process, a due legislative process?
Gregory H. Guillot: There have to be findings. Even Fullilove required narrow tailoring. Not the extensive--
Antonin Scalia: Where do you get that? Out of the Administrative Procedure Act?
Gregory H. Guillot: --No, Your Honor, out of Fullilove. In Fullilove it was deemed important, and great, great amount of talk was given to the... to what Congress did in deciding to pass the program that was under review there.
Antonin Scalia: Congress cannot... cannot enact a valid piece of legislation in this field without making findings? Is that what you're saying?
Gregory H. Guillot: Well, Your Honor, we've been talking about the remedial basis for the... for the legislation, and in order for there to be a remedial basis how can there be no findings if there's something that needs to be remedied?
Antonin Scalia: We can, as we often do with legislation, see whether there is a plausible basis for the legislation but without demanding what the Constitution does not require, that Congress give reasons for its legislation. It doesn't have to give reasons for its legislation.
Gregory H. Guillot: Well, Your Honor, that is not the standard that was enunciated by this course in Fullilove... this Court in Fullilove for reviewing race and ethnic-based classifications under the Fourteenth Amendment. We feel that--
Antonin Scalia: You read it too broad.
Gregory H. Guillot: --I... I... I do think that it has been read too broadly by the Commission and the amici in this case. Their briefs stop at the point where they under... where they see that Congress has acted, and they think the mere presence of congressional action is enough to give up the inquiry. But what we're saying, Your Honor, is that even under Fullilove there's a two-prong test, whether the objectives of the legislation are within Congress' power, and Justice Kennedy referred to the commerce clause as being one possible basis for the exercise of that power; but second, whether the limited use of racial and ethnic criteria are a permissible means for Congress to carry out its objectives within the due process clause. This program is not narrowly tailored, and, significantly enough, underrepresentation is all Congress refers to as evidence that there is a problem. And underrepresentation is not enough but, more importantly in the present case, you must realize that the Commission's policies were in effect 18 years when Congress supposedly ratified them. If anything, the continuing existence of the underrepresentation statistic demonstrates that the Commission's comparative preference policies is a complete and total failure in advancing either minority ownership or diversity of programming, and when reviewing what information Congress had before it at that time, that must be taken into account, that the record is that the policies were bad, ineffective and unconstitutional. I'd like to reserve the rest of my time for rebuttal, if I could.
William H. Rehnquist: Very well, Mr. Guillot. Mr. Armstrong.
Daniel M. Armstrong, III: Mr. Chief Justice, and may it please the Court: The broadcasting industry has the power to shape public opinion in this country that few, if any, others can match. This case involves a forward-looking decision by Congress that we will all benefit if this powerful medium communicates to us the views and perspectives of minorities, and to that end some race-conscious steps are needed to increase the number of minority-owned broadcast stations. Before I begin my argument, one brief reference to the gender question since it did come up. Without the minority enhancement, Rainbow's qualitative showing is not as strong as Metro's, even if Rainbow keeps the gender enhancement. So the Commission, as it indicated in the specific language that was referred to by Petitioner's counsel, has indicated that the gender enhancement doesn't decide this case. That would have to be remanded--
Antonin Scalia: You would concede that if the Court should find against you on the racial portion, we would have to set aside the Commission's action here?
Daniel M. Armstrong, III: --Justice Scalia, there would have to be a remand. You could not affirm the judgment below. There was a great deal of discussion in the earlier colloquy with Petitioner's counsel about the factual predicate and Congress' powers under commerce or the Fourteenth Amendment. Before we get to that, I would like to emphasize to the Court that a lot of the cases where that has been discussed... and I'm thinking, for example, of Fullilove... have presented the Court with a situation in which Congress was giving what has been referred to in the affirmative action litigation as a purely remedial program. It's critical to understand that in this case... and so the Court... in this case the Court need not decide whether the factual record here would support a purely remedial program in an economic sense because in this case, of course, the immediate beneficiary of these policies are minorities if they are granted licenses and have the opportunity to operate the station. But it is critical to understand that Congress' purpose here is not... that's not the purpose. The purpose, the ultimate purpose here, is to benefit the public's interest in a diversity of expression over the airways.
William H. Rehnquist: The assumption of the Commission, I take it, is that if there are more minority owners, there will be more diversity in the airwaves?
Daniel M. Armstrong, III: Mr. Chief Justice, the Court has previously had occasion to recognize--
William H. Rehnquist: Well, I... I was asking you if... if that was the Commission's assumption.
Daniel M. Armstrong, III: --Yes, sir. And that is the position Congress has taken, and that's the position the Commission supports.
William H. Rehnquist: Now, is... is... what is the reasoning behind that so far as the Commission is concerned?
Daniel M. Armstrong, III: Yes, sir. By way of background, the Court has had occasion in the past in the cross-ownership case ten years ago and earlier in the Storer case to be familiar with the Commission's position that there is a nexus between the source, the owner, and the diversity of programming. Now, this case requires a further step that has not been taken by the Court before, and this step requires that the Court consider whether there is a nexus between race and expression, and the Commission's position is that that is a defensible, predictive judgment. First, it is a judgment that has been made by university admissions officials who are in the business of achieving diversity. It is a judgment that Justice Powell in the Bakke opinion seemed to accept, and Justice Powell has always been an advocate of strict scrutiny in these cases and yet he accepted that nexus in the Bakke case without demanding empirical proof.
Antonin Scalia: Let me understand what you mean. You... you... you mean the nexus between race and expression, the thing... that white people think and express themselves one way and Aleutians another way and Asians another way and... I thought this was what we were trying to get away from.
Daniel M. Armstrong, III: Congress' opponents in this litigation have understood the position to be that all members of a group think in one way. We reject that characterization, Justice Scalia. The very Harvard plan upon which we rely so heavily in this place. As it was described in Justice Powell's opinion, it explains that the reason why Harvard doesn't want to limit itself to 10 or 20 black students is that they couldn't begin to bring to their classmates the variety of points of view, backgrounds and experiences of blacks in the United States. So, it's not--
Antonin Scalia: The Harvard plan was adopted long before black admissions were an issue, and many thought that the reasons for its adoption was to... was to eliminate the excessive number of Jewish students who were getting admitted on a purely merit basis.
Daniel M. Armstrong, III: --But I referred to it--
Antonin Scalia: So, I... I'm not very impressed with--
Daniel M. Armstrong, III: --I refer to it, Justice Scalia, only for the purpose of telling you that the policy does not rest on a judgment that all members of a group think in the same way.
Anthony M. Kennedy: --Well, in your view, then, could the FCC require that every broadcast station in the United States devote one hour a week to minority... the expression of minority views?
Daniel M. Armstrong, III: Justice Kennedy, the--
Anthony M. Kennedy: Assuming we can define that.
Daniel M. Armstrong, III: --the Commission and Congress in their consideration of alternatives are limited both by renewal expectancy considerations and by First Amendment considerations, and this Court in the case about 10 years ago... it was involving cable, but the Court spoke to broadcasting as well and said that there are concerns in Section 3(h) of the Communications Act. These concerns reflect First Amendment concerns, and these concerns do not permit the Commission to dictate to a broadcast licensee that it shall turn over its facilities for the expression of a particular program. Now, obviously--
Anthony M. Kennedy: So, it can do... so it can do so indirectly what it can't do directly?
Daniel M. Armstrong, III: --Well, we do attempt through structural regulations to achieve the public interest in programming content without direct content regulation. The question of when--
Anthony M. Kennedy: But... but you're trying to achieve content regulation nonetheless?
Daniel M. Armstrong, III: --Well, there's no question that this judgment believes that if there are more minority owners... it's a nominally structural regulation... but if there are more minority owners, when all is said and done at some point in the future, the public will have received a diversity of expression that it will not have received if we do not have the minorities. So, in that sense we are influencing the--
Sandra Day O'Connor: Well, can... can... can non-minority owners offer programs of a diverse nature?
Daniel M. Armstrong, III: --Well, Justice O'Connor, certainly.
Sandra Day O'Connor: And can the FCC take action to evaluate the extent to which that is now being done?
Daniel M. Armstrong, III: Your question has two thoughts. The Court certainly... nonminority licensees have obligations to offer issue-responsive programming for their entire audience, and that would include presentation fairly of minority perspectives. But the Court itself in a dictum, in a footnote in the NAACP case in 1976, said, after rejecting the authority of the Federal Power Commission to have... to pursue employment discrimination, referred to the FCC's attempts to get more minority employees. And the Court said that can be justified because it is related to the Commission's duty to ensure that a licensee's programming fairly reflects the views and perspectives of minority groups. If--
Sandra Day O'Connor: Has the FCC assessed the extent to which the broadcasting today presents diverse viewpoints?
Daniel M. Armstrong, III: --Justice O'Connor, two thoughts. One--
Sandra Day O'Connor: I mean, has it or hasn't it?
Daniel M. Armstrong, III: --No, we have not, because it would be improper for us to do so. What we are talking about in an effort to justify this policy is not achieving some quantity of entertainment programming that will appeal to this or that audience. What we're talking about is the presentation of the more subtle point of views and perspectives in news, in editorial comment, in public affairs and it, admittedly, would be very difficult empirically to demonstrate the validity of the predictive judgment, just as it would very difficult empirically for a university to demonstrate the validity of a--
Anthony M. Kennedy: So... so you're trying to-- --You're saying you cannot... that it can't be done?
Daniel M. Armstrong, III: --And the First Amendment would present very difficult--
Sandra Day O'Connor: And if it can't be done, then how do you ever evaluate whether the remedy you have prescribed has been met. I mean--
Daniel M. Armstrong, III: --The focus--
Sandra Day O'Connor: --it puts us in quite a dilemma.
Daniel M. Armstrong, III: --The focus is on ownership, Justice O'Connor. That's the focus.
William H. Rehnquist: Well, to... to say at the time that the TV 9 decision came down in 1973 or whenever it was that you can't... you're not certain about how to validate predictive judgment, but after 18 years I would think it would not longer be a predictive judgment. You... you've had experience that you could evaluate.
Daniel M. Armstrong, III: Well, the one thing we can evaluate... I don't think, Mr. Chief Justice, that we should be standing before you today and looking at the content and saying look at the content here and look at what it was in 1970 and see, there's more diversity. I would be... approach this podium with great trepidation if that were my assignment, given the First Amendment and given the fact that I represent a government licensing agency. But what we can assess, we can assess the ownership. We can see how many broadcast stations in this nationwide industry are owned by minorities.
Anthony M. Kennedy: And you're doing that to accomplish a goal which you think is so constitutionally sensitive, you think it's even inappropriate for you to measure it directly?
Daniel M. Armstrong, III: I believe that we are saying, Justice Kennedy, that it is necessary in this area. That whatever we do to accomplish goals... I don't want to foreswear any content regulation. This Court has had cases from the Commission in the past in which we've been doing that. Our opponents in the industry from time to time have been here, but it is a tightrope and it is a concern that we have limits on how far we can go, and so we do try and Congress tries to fill that void by structural-type regulations that are intended to achieve the same purpose.
Antonin Scalia: Mr. Armstrong, how do you... how do you pick out these... these particular minorities? I mean, if I had... somebody had said, you know, get... get a group of minorities that... that would produce diverse programming, you know, I would have thought maybe Southern Baptists and Ethical Humanists and perhaps homosexual groups, groups that... that... that have some difference in... in... in their ideas, in... in... in what ideas they consider important. How did you come up with these groups which are what, blacks and Hispanics, but not Portuguese? They... they have been excluded from your definition of a Hispanic, right?
Daniel M. Armstrong, III: The Congress came up with the groups.
Antonin Scalia: Yes.
Daniel M. Armstrong, III: And the Commission has accepted what Congress did in the lottery sense.
Antonin Scalia: Oh, I see.
Daniel M. Armstrong, III: And the groups are not unique to this particular case. These are essentially the same groups that the Congress had in the program that was before the Court in Fullilove, and they... Congress has explained in the conference report on the lottery statute.
Antonin Scalia: How were the groups determined? By blood? I mean, a Hispanic would... what degree of blood does one have to be to qualify?
Daniel M. Armstrong, III: Congress has identified the groups that it believed have been the victims of discrimination, society-wide discrimination. Congress obviously--
Antonin Scalia: Well, wait. What does that have to do with diversity of viewpoint? I thought you said it was not remedial?
Daniel M. Armstrong, III: --Well, this is where the case... we said it didn't involve a purely remedial case, but it involves in part the remedial aspect because Congress--
Antonin Scalia: You identified the groups on the basis of a remedial theory in order to achieve a diversity objective. Is that what's been done?
Daniel M. Armstrong, III: --In identifying the groups that the Congress believed the public most needed to hear from the Congress said, given our wealth of experiencing in broadcasting, given our wealth of involvement with civil rights litigation, we believe the groups, the public most needs to hear from are those groups that have been the victims of discrimination. And the Congress said we have extensive experience in identifying whose those groups are from our civil rights activity for the past 30 years, and they listed the six groups. That's how they came up with it.
Antonin Scalia: I see. So, it really-- --I just want to make it clear. You do not... you do not seek to justify this program based on racial discrimination and as... as to trying to remedy past discrimination?
Daniel M. Armstrong, III: The... obviously we had to refer, Justice White, to the past because that is how Congress decided who should be in the picture.
Byron R. White: Do you... do you--
Daniel M. Armstrong, III: But, no, sir, we are relying in this case--
Byron R. White: --On... on diversification?
Daniel M. Armstrong, III: --the forward-looking purpose to achieve a diversity of expression for the benefit of the public.
Byron R. White: And we shouldn't even address, I suppose... at least we shouldn't accept any submission that this program is... is justifiable based on a remedial basis?
Daniel M. Armstrong, III: The Court would not have to in this case hold that--
Byron R. White: We can't... we can't... if you didn't rely on it, we shouldn't accept any submission based on the remedy.
Daniel M. Armstrong, III: --Well, I... I think it's clear from the... the Court has to decide whether what Congress did is lawful, but it's clear what Congress has in mind. And Congress did in the lottery report... conference report for the lottery statute... say in addition to the diversity objective, they thought this case was like the--
Byron R. White: Yeah, but that isn't what the FCC has done.
Daniel M. Armstrong, III: --But this is Congress now, Justice White, that's acted. This is Congress the Court has to review. So I think that given the fact that Congress has acted, the Court would not have to hold in this case that diversity alone could support a race-conscious effort.
Byron R. White: Well, I know, but all Congress said that here's... that you don't want to change... that it didn't want you to change your... your preference policy. Stay with it. And, as I understand you to explain what your policy was and is, it's purely diversification--
Daniel M. Armstrong, III: When they said that, Justice White, they did refer to the 1982 lottery statute. And in that lottery statute, which was intended to address the situation that would govern if we didn't have a prepared hearing, they expressed the remedial purpose.
Byron R. White: --I know, but Congress didn't change... Congress didn't change the basis that... on which you're acting.
Daniel M. Armstrong, III: The amicus brief of the Senate... no, sir, they didn't change the basis on which we had acted, but we have been acting since '82--
Byron R. White: Well, you've been acting on a diversification basis--
Daniel M. Armstrong, III: --Yes.
Byron R. White: --not a race remedy basis.
Daniel M. Armstrong, III: But I believe as in Fullilove the earlier statute is relevant, and the earlier statute indicates that Congress also had the remedial purpose in mind.
William H. Rehnquist: Thank you, Mr. Armstrong. Ms. Polivy.
Margaret Polivy: Mr. Chief Justice, and may it please the Court: Four times in the last 12 years this Court has had occasion to consider the constitutionality of government programs involving race conscious... or ethnic conscious-based decisions as selection criteria. Under the holdings of each of those cases, we submit that the FCC's comparative minority preference policy should be sustained. Bakke and the issues addressed in there... in that case by Justice Powell most closely resemble the issues presented here today. Both cases involve as a compelling governmental interest the diversity of voices contributing to robust debate among the audience. In the case of Bakke, we're talking about a student body. In the case of the FCC, we're talking about everyone in the Nation. The root of the FCC's regulatory power in this area lies in the First Amendment guarantee that multiple voices produce the most informed electorate. What is involved here is the FCC's attempt and Congress' ratification of that attempt--
William H. Rehnquist: Ms. Polivy, are you suggesting that the First Amendment requires the FCC's diversification program?
Margaret Polivy: --Your Honor, the... this Court and many others and Congress have had occasion over the years, starting with the Associated Press case and going unbroken for almost 50 years, of acknowledging the fact that the First Amendment is certainly part of the Commission's requirement to diversify the ownership of broadcasting, and it's through the ownership of broadcasting that editorial control takes place.
William H. Rehnquist: Well, are you saying that this Court has held that the FCC must... the First Amendment requires the FCC to follow a diversification--
Margaret Polivy: I think the question would come up in the... in the reverse, that the FCC's foundation, reliance upon the First Amendment as part of its reason for diversity, is an appropriate First Amendment finding. I would refer you to the Court's opinion in Red Lion.
William H. Rehnquist: --Well, but what is an appropriate First Amendment finding?
Margaret Polivy: Well, that diversification is part of the First Amendment, that the multiplicity of tongues and the encouragement of diversity in the control of media is something that the Commission properly sees as its function under the Communications Act and under the First Amendment.
William H. Rehnquist: But now that's quite different, to say that the Commission sees that as its function under the Communications Act and that this Court has upheld its seeing it that way. That's different than saying that if the Communications Act did not provide for it, the Commission would nonetheless have to do it because of the First Amendment.
Margaret Polivy: I don't think the Court has ever said that. I think the--
William H. Rehnquist: No, I don't, either.
Margaret Polivy: --I think the Court has said that this is consistent with the Commission's obligation both to further the First Amendment and the Communications Act, and I think that's all that I'm claiming there. But that the Court's holding in Bakke that diversity of viewpoint is a compelling state interest in the academic field would certainly be as valid or more valid in the area of broadcasting where you're talking about the entire Nation. The... some of the confusion, I think, perhaps as to the purpose is caused by the fact that the Commission's justification of the race-conscious criteria that it is using stems from the fact that in seeking diversity of viewpoint they first identified the missing voices. To that extent, one would have to say that it is... if there was no past deprivation or exclusion there would be no need to look specifically to include those people. So it's somewhat difficult to separate the remedial from the question of diversity of viewpoint and... and ownership that the Commission is talking about.
Anthony M. Kennedy: Under the Commission's rationale, I take it, if there's a community with a substantial Hispanic population, an Asian owner of the applicant gets the race preference under the FCC statute, or must there be some parallel between the composition of the local community and the particular minority being given the preference?
Margaret Polivy: Justice Kennedy, the... the underlying rationale of the... the policy is that the people who are to benefit from the inclusion of multiple voices are not the minority groups involved but the population as a whole.
Anthony M. Kennedy: Well, my question was how... my question is how does it work?
Margaret Polivy: The way it works is very simply there is no consideration given to whether this is an Asian population or a Hispanic population. The underlying theory is that--
Anthony M. Kennedy: So there's no... so there's no correlation required between the race of the owners and the racial composition of the community that it serves?
Margaret Polivy: --No, sir. The... the underlying theory is that everyone benefits from hearing a multiplicity of voices. We are not talking here about specialized programming. We are talking about differences of perspective, differences of choices made in editorial control, differences made in choice of news, in choice of programs, in choice... the whole theory is that the reflections that each of us bring to ownership are a product of our background, are a product of our uniqueness. When there are identifiable groups, such as there are here that have been excluded from broadcasting, what we're talking about here--
Antonin Scalia: I thought we're all trying to make money when we... when we buy a for-profit radio or television station.
Margaret Polivy: --Well, we're not--
Antonin Scalia: And I thought that the smarter we all are we will all try to make money in exactly the same way, and if we're an Asian broadcasting in a Hispanic community, we will broadcast Hispanic programming, just as we would if we were a white broadcasting in a Hispanic community.
Margaret Polivy: --The air waves are a public domain, and broadcasters are public trustees. While stations may in fact make money, and certainly we have heard a great deal about that, that is not a standard by which the licenses are allocated. It is not a standard by which licenses are awarded. Those seeking licenses must demonstrate their intention to serve the public interest, not the public coffer. And what we have here is a question of who determines what goes out over the air waves, who determines whether a program on apartheid is to be shown or not, who determines whether an editorial is to be run about a local election. That's what we're talking about.
Antonin Scalia: What evidence... what evidence can you refer to that demonstrates that individuals of any of these particular race, or of any race for that matter, will produce programming of a particular racial type?
Margaret Polivy: There have been some studies, and in the brief filed by the NAACP there... there is a footnote that extensively refers to them, but that is not the point. The point here is that the... the concept that underlies the First Amendment, the concept that underlies our democracy is that a multiplicity of voices give rise to a multiplicity of views, and it is true that--
Antonin Scalia: I thought the concept was also, however, that people's voices... that is, their ideas... are not to be judged on the basis of their skin. Isn't that a concept that underlies the Constitution, too?
Margaret Polivy: --Certainly, it is, and we are not saying that the content of their voices underlies the--
Antonin Scalia: But that's exactly what you're saying.
Margaret Polivy: --I think--
Antonin Scalia: You're saying that if you have black owners you will have black programming, whatever that means.
Margaret Polivy: --I am not saying that. In fact, what I am saying is quite the reverse. What I'm saying is that insofar as we each are a product of our backgrounds, our unique experiences bring our unique choices. Now that is not the color of our skins, but it is a fact that we all come from different places. And it is the fact that we come from different places that leads to the panoply of views and voices. There is no such thing as an American voice. We are each the product of our backgrounds.
Antonin Scalia: A black who gets a minority preference here could have been born and raised in Scarsdale; isn't that right?
Margaret Polivy: Certainly.
Antonin Scalia: You're saying our background, where we come from. It has to do with nothing here except blood; isn't that right?
Margaret Polivy: No, it--
Antonin Scalia: Isn't blood what counts?
Margaret Polivy: --It has--
Antonin Scalia: What counts for purposes of whether the preference is given? Is it anything other than blood?
Margaret Polivy: --Well, if you... if you mean belonging to a group by blood--
Antonin Scalia: That's what I mean.
Margaret Polivy: --I would say yes. However, what it does mean is it's the recognition in the First Amendment... in the Commission's view that this is a different perspective. Whether you were born in Scarsdale or you were born in Harlem, the fact of who you are is what contributes to your perspective.
Anthony M. Kennedy: And who you are is your race, under your view... in the Commission's view?
Margaret Polivy: Well, it may be your ethnicity. It may be your background, but what we have done here is identify those groups that have been excluded from the mass media. When the Commission started this program in 1978, fully only 1 percent of the broadcast outlets in this country were owned by minority individuals. Today after 18 years... 12 years, the latest figures that we have in the Congressional Research study is that 3.5 percent of all broadcast outlets are owned by minority individuals. I'd like to just address one or two things that have been alluded to. The first is that the minority enhancement that the Commission gives is one of a number of multiple factors. It is by no means a decision factor. In fact, in this case Rainbow did not win simply because it got a minority preference. It proposed a larger amount of qualitative integration, more of its ownership was to be integrated into the management, and it was given credit for its past broadcast experience. The Commission considers multiple factors in addition to simply whether or not people are going to be integrated. The Commission considers whether or not the proposals are technically advantageous. The Commission considers whether there are any other stations owned. The Commission considers whether or not programming is offered as a specialized basis. This as a plus factor is perhaps less influential than the plus factor in Bakke that was referred to in the Harvard plan. Here, what we are talking about is fully qualified applicants. How do you choose between two fully qualified applicants? In the past the Commission has made certain standards. They have said when you have two fully qualified applicants we will look at such things as local residence, we will look at such things as what civic activities you've been involved in. They have now said we will look at race also because this is an area that is across the board underrepresented in the broadcast industry. There is no danger that this is going to go on forever. The figures are so low that there is really no reason to consider how it ends, but at this point what we are talking about is Congress is authorizing this program on a year-to-year basis, so we are not talking about any possibility of going on into the future. In deciding whether or not to have this program--
Anthony M. Kennedy: Of course, I take it diversity of views is a constant goal. If you reached racial proportionality, whatever that means, in ownership and the regulations ceased and there was an imbalance, I would suppose the same diversity of view problem would arise. So it seems to me that what you are... since you are not relying on something that is remedial, you are espousing a rationale that must necessarily be permanent.
Margaret Polivy: --Diversity of views is certainly a rationale that is permanent. Whether there is a minority preference or not is a matter that is different. The whole Communications Act, the whole Commission's allocation of new licenses, is premised on diversity. There is no question about it. That would go on as long as the Commission has licenses to grant. Congress has approved that. Congress has insisted that the Commission continue to look at the diversity of ownership. What they have said here is that on the basis of their experience, on the basis of 30 years' worth of Congressional hearings, Commission hearings... and I commend the Senate brief to your attention for the background of that... that we believe that this is an area that the Commission must consider and continue to consider until we are satisfied at such time that the past deprivation has been... the balance has been changed. In Fullilove this Court made clear that Congress need not have a record in the same sense that a court or an administrative agency indeed must compile a record. In the area of minority preferences, Congress has been holding hearings. Congress has had experience in this area for almost 30 years. Contrary to Petitioner's suggestion, it would be difficult, indeed, to conclude that Congress didn't know what was going on. Congress has been intimately involved in this process. The basis for congressional action here has extended both in terms of the legislative approach and in terms of hearing approach. Under the standard of Fullilove one must, I think in this case accord--
William H. Rehnquist: Thank you, Ms. Polivy.
Margaret Polivy: --Thank you.
William H. Rehnquist: Mr. Guillot, do you have any rebuttal? You have two minutes remaining.
Gregory H. Guillot: Oh, my gosh. Yes, Your Honor. A couple of important points in that two minutes, Mr. Chief Justice and other members of the Court: The Commission here is caught in a grave and painful vice between content regulation and stereotyping with the program diversity rationale. If the Commission is wrong and minority ownership or female ownership does not result in a different kind of programming, then the Commission is engaged in impermissible stereotyping based on predictions of what a particular person will do in a particular occasion on account of their blood. On the other hand, assuming the Commission is right and that we can make accurate predictive judgments about a person's behavior based upon their race, then that means that the Commission, by selecting these groups, knowing that their behavior is going to be a certain way, is seeking a content objective. They want the type of content that they believe it can be identified by these racial and sexual characteristics. So either it's stereotyping or it's content regulation, but it's not permissible. The second point, Your Honor, is that again both the Commission and Rainbow now are speaking in terms of a diversification rationale for the program. That is not the rationale. The rationale is program diversity. The Commission has a diversification criterion. If it was truly the rationale they could incorporate a race neutral preference under the diversification rationale and say if a hitherto prejudiced-against or discriminated-against group wants to enter the media and they can show some past discrimination or show that they have been denied access, we will give them a preference. We won't specify what the groups are. Why did the Commission have to specify those groups, and why are those groups exclusive of a list of program diversity? Third, these policies have no end. They will continue to operate until this proportional underrepresentation is gone. In the last 18 years, minority ownership has only increased 1 percent. I am no mathematician, but it would appear that we have 600 years left of the Commission's minority and female preferences based on proportional equal representation.
John Paul Stevens: May I ask, how do we know the next group of commissioners is going to follow the same policy?
Gregory H. Guillot: Your Honor, given the appropriations acts, we will never know even what the Commission's true viewpoint is because the Commission has been statutorily restricted to express only one view regarding the policies, and that is a pro-constitutional one.
William H. Rehnquist: Thank you, Mr. Guillot. The case is submitted.