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League of Women Voters of California v. Federal Communications

Commission

Civil Action No. 79-1562-MML (C.D.Cal.) On April 30, 1979, the League of Women Voters of California; U.S. Representative Henry Waxman of California; and the Pacifica Foundation, a non-profit educational corporation owning and operating five major market noncommercial FM radio stations throughout the United States, brought suit against the Federal Communications Commission ("FCC'') in the U.S. District Court for the Central District of California. The complaint challenged the constitutionality of 47 U.S.C. § 399(a) which provided in relevant part that "no noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office.” The plaintiffs sought both declaratory relief and an injunction against the statute's enforcement. The gravamen of the complaint was that section 399(a) was unconstitutional on its face in that it violated First Amendment rights to freedom of speech and of the press, and, as to plaintiff Pacifica, that it violated its right to equal protection of the laws under the Due Process Clause of the Fifth Amendment (since it deprived noncommercial broadcasters of constitutional rights exercised by commercial broadcasters).

The FCC filed an answer to the complaint on July 25, 1979. An amended complaint was filed on August 27, 1979, and an answer was filed on September 12, 1979.

On September 24, 1979, the plaintiffs filed a motion for summary judgment. In a memorandum accompanying the motion, the plaintiffs outlined the reasons why they believed section 399(a)'s absolute ban violated the First Amendment's guarantees of freedom of speech and of the press and the Fifth Amendment's guarantee of equal protection under the Due Process Clause. At the outset, the memorandum contended that editorializing and endorsement of or opposition to political candidates by noncommercial broadcasting stations was speech "squarely within the protection of the First Amendment." It noted further that except where special regulations were needed to protect children, "every court-sanctioned regulation on the content of broadcast speech has been designed to increase the variety of views and opinions expressed over the air.' Memorandum of Points and Authorities in Support of Motion for Summary Judgment, September 24, 1979, at 8] It pointed out that what was involved was not only the right of noncommerical broadcasting stations to editorialize, but also the critical right of the broadcast audience-the public-to receive such editorials and thereby be informed. The memorandum continued:

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)], supra, the Supreme Court unanimously upheld the constitutionality of the FCC's fairness doctrine, which requires that discussion of public issues be presented on broadcast stations and that each side of those issues be given fair coverage. Faced with the possibility that stations might present only one viewpoint on important public issues, the Court found the only solution consistent with

the First Amendment rights of the public to be the fair-
ness doctrine's requirement that both sides of the issues be
presented.

By enacting § 399(a) to prevent potentially one-sided edi-
torializing, Congress has done precisely what the Supreme
Court in Red Lion found to be an unconstitutional in-
fringement of the First Amendment rights of the broad-
cast audience. Section 399(a)'s censorship of all noncom-
mercial broadcasters' editorials denies to plaintiffs Henry
Waxman and the League of Women Voters and to all
members of the public access to the "uninhibited market-
place of ideas” which is their constitutional right. (Id. at

11 (footnote omitted)] Second, the memorandum contended that the Government could show no compelling interest which would justify the absolute prohibition found in section 399(a). Such a ban, the plaintiffs argued, was only permissible in cases where the utterances did not constitute "speech” at all—e.g. obscenities, false and deceptive advertising, defamation, and so forth. The only conceivable governmental interest in this case, the memorandum noted, was in preventing "public criticism and comment" directed at Congressional incum bents, “a purpose (which) is totally improper and cannot serve as a basis for upholding the statute.” (Id. at 15] The plaintiffs also as serted that the fear that noncommercial stations might become a "giant government-controlled propaganda machine" was totally un founded, not only because of the restraints built into the Corpora tion for Public Broadcasting charter and the FCC political editori alizing rule (and the fairness doctrine) but also because noncom mercial stations received but a fraction of their income from th Federal Government.

Third, the memorandum contended that even if there were legit mate Government interests supporting section 399(a), because ther were narrower, less drastic, means of satisfying those interests, th section was still unconstitutional. It pointed to several measure short of a total ban on editorializing already in effect, such as th fairness doctrine and the right of reply legislation, and suggeste other alternatives.

Turning to the Fifth Amendment equal protection issue, th plaintiffs argued that the noncontent-based distinction betwee noncommercial and commercial broadcasters was not premised o the required “substantial” government interest and therefore cou not be sustained as a matter of constitutional law.

On October 11, 1979, U.S. Attorney General Benjamin Civilet informed Senate Majority Leader Robert Byrd by letter that t Department of Justice, which represented the FCC in the cas would not defend the constitutionality of the statute. The Attorn General in essence agreed with many of the arguments raised the plaintiffs in their memorandum. He concluded that the statu violated the First Amendment and that no compelling state inte est could be identified to justify the prior restraint on speech. I also noted that section 399(a) was overbroad (since public broa casting stations receiving no public funds were covered) and th there were less restrictive ways to achieve the purposes of the sta ute. He noted that the FCC agreed that the statute "cannot be defended successfully in its present form." In a stipulation filed with the court on October 23, 1979, the FCC stated that it had “determined to discontinue its defense of the constitutionality of Section 399(a)..." and had so advised Congress. On January 18, 1980, the Justice Department, for the FCC, stated to the court that it had “no opposition to the arguments advanced by the plaintiffs in support of their Motion for Summary Judgment that $399(a) is unconstitutional."

On January 17, 1980, the Senate moved to appear in the case as amicus curiae pursuant to Senate Resolution 328 (125 Cong. Rec. S19431, Dec. 20, 1979) and the Ethics in Government Act (2 U.S.C. $2881(a), providing that permission to appear as amicus "shall be of right” if the appearance is timely). Simultaneously, the Senate Legal Counsel moved to dismiss the complaint and to defer responses to the plaintiffs' motion for summary judgment until the court had ruled on the motion to dismiss. The defendant FCC took no position on these motions.

In a memorandum accompanying the motion to dismiss, the Senate argued that the court did not have jurisdiction to hear the action because there was no ripe case or controversy, there were no adverse parties, and the plaintiffs had not exhausted their administrative remedies. The memorandum characterized section 399(a) as a provision passed by Congress "to keep the massive infusion of federal money into the media commenced by the Public Broadcasting Act of 1967 from bringing in its wake political entanglements and control and partisan use of public money.” [Memorandum in Support of Senate's Motion to Dismiss, January 17, 1980, at 1]

On the case or controversy point, the Senate contended that the suit was "anticipatory” and not presented in a concrete form suitable for judicial resolution. "A proper judicial ruling," the memorandum stated, “must be informed, as this one is not, by the characteristics of the government-controlled broadcaster who makes the

candidate endorsement or editorial violative of 47 U.S.C. $399(a), - and by what he says, and how." [Id.] In this case, the Senate assert

ed, the plaintiffs did not allege that they had violated the statute, that it had been enforced or threatened to be enforced against them, or even that they had, or planned to have, engaged in, solicited, or prepared specific candidate endorsements or editorials by public broadcasters. Further, the Senate argued, if the court refused to rule on this anticipatory case, only "relatively mild statutory sanctions” (Id. at 17] would apply if the plaintiffs did later violate the statute (with likely mitigation), which did not constitute sufficient “hardship” to warrant the court's intervention.

On the second point, the Senate asserted that the parties were not adverse on the merits because, in short, “plaintiffs assail 47 U.S.C. $399(a); the Department of Justice, representing the defendant FCC, does not defend it; and there are no other parties." [Id. at 18] The Senate emphasized that the parties in the case came to court “fresh from the rejection by Congress of the goal they seek here." [Id. at 1] The memorandum explained:

[T]his suit was brought by Representative Waxman immediately upon his failure to obtain repeal of 47 U.S.C.

$ 399(a) by Congress “Opposing" Representative
Waxman is the Executive Branch which joined in efforts
to amend 47 U.S.C. § 399(a). “It never was the thought
that, by means of a friendly suit, a party beaten in the leg.
islature could transfer to the courts an inquiry as to the
constitutionality of the legislative act." Chicago & Grand
Truck Railway v. Wellman, 143 U.S.C. 339, 345 (1982),
quoted in Ashwander v. Tennessee Valley Authority, supra,
297 U.S. at 346. Traditionally, courts have taken agree-
ment between private and Executive parties as a cue to
dismiss constitutional attacks.

.. The Senate's appearance here confirms explicitly
the separation-of-powers concern that has always been im-
plied in the rule forbidding nonadversary attacks on legis-
lation: that the Executive, by act or omission, must not be
able to enlist the Judiciary to put its imprimatur on the

revision of legislation. (Id. at 19-20) Finally, the Senate contended that the case should be dismissed because the plaintiffs had failed to exhaust their administrative remedies at the FCC, and, it stated, if they had done so jurisdiction would be exclusive in the court of appeals by virtue of the statutory requirements of the Communications Act. Since no FCC final order had been issued affecting the plaintiffs pursuant to section 399(a), the Senate argued, the mandatory administrative procedures had not been utilized. Further, the Senate argued on policy grounds, “the considerable expertise of the FCC should be applied before the judiciary is asked to pass on the constitutionality of the statute.” (Id. at 25]

On February 13, 1980, the plaintiffs moved to disallow the filing of the Senate's motion to dismiss on the ground that only parties, not an amicus curiae, could file such a motion. (The plaintiffs did not object to the Senate appearing as amicus curiae.) Concurrently, the plaintiffs filed a memorandum arguing that if the court agreed to entertain the Senate's motion to dismiss, it should be denied.

In response to the Senate's arguments, the plaintiffs asserted, first, that because section 399(a) violated their constitutional rights every day by "chilling” the free speech of the broadcasters and by denying listeners, including Rep. Waxman and the League of Women Voters, access to free broadcast speech, the action was a ripe case or controversy over which the court had jurisdiction. Second, the plaintiffs argued, Pacifica had “made its intentions to broadcast editorials clear" and was only prohibited from doing so by section 399(a); should it be forced to violate the statute before testing its constitutionality, it would automatically risk a "wide variety of severe criminal and civil sanctions,” including possible revocation of its broadcast license. The plaintiffs claimed they were in an untenable position:

Section 399(a) does indeed present Plaintiff Pacifica and all other noncommercial broadcasters with a "Hobson's choice" between the two unacceptable alternatives. On the one hand, Pacifica can refrain from editorializing, fearing to exercise what it believes to be its First Amendment rights because of the threat of a variety of sanctions,

criminal and civil. On the other hand, Pacifica can volun-
tarily and knowingly violate the statute by broadcasting
editorials, subject itself to the sanctions, and plunge into a
risky and expensive legal battle over the constitutionality
of the statute. (Memorandum in Opposition to Senate's

Motion to Dismiss, February 13, 1980, at 19] Third, the plaintiffs maintained that the action was a justiciable adversary proceeding, and that the FCC, through the Department of Justice had "merely made the legal determination that the plaintiffs' claims were meritorious.” (Id. at 3] Moreover, the plaintiffs noted, the Senate would vigorously oppose the plaintiffs' claims. Finally, the plaintiffs argued, the doctrine of exhaustion of administrative remedies had no application to this case because the suit was a "facial attack on the constitutionality of section 399(a) and the FCC has no power to determine the constitutionality of a federal statute.” (Id. at 24]

On February 25, 1980, the Senate filed a reply memorandum in support of its motion to dismiss, reiterating many of its prior arguments. It did, however, also include an affidavit from the FCC explaining the FCC's enforcement policies with respect to section 399(a), and “expressly and unambiguously” denying that it would seek harsh sanctions of any kind if a station editorialized or endorsed a candidate for the purpose of challenging the statute. Given this affidavit, the Senate contended that the plaintiffs could not demonstrate any hardship in proceeding by the statutorily mandated route (i.e. by exhausting their administrative remedies) rather than insisting on a determination in an "abstract, nonadverse' case.

On March 3, 1980, the Senate's motions were argued before U.S. District Court Judge Malcolm M. Lucas who granted the motion to appear as amicus curiae and allowed the filing of the motion to dismiss. The latter motion was taken under advisement and ultimately granted in an order entered on March 11, 1980. (League of Women Voters of California v. Federal Communications Commission, 489 F. Supp. 517 (C.D. Cal. 1980)]

The district court held that the case was not justiciable because it was not ripe for adjudication. Judge Lucas explained:

Because in this instance there is the distinct likelihood that the FCC will not seek to penalize a broadcaster that violates § 399(a) and because the hardship to be imposed upon the parties should the Court not now decide the constitutionality of $ 399(a) is minimal, the Court finds that this case is not ripe for decision at this time.

Although the statute is challenged on its face, the Court cannot say that the particular facts of any given violation and prosecution under the statute would not color the outcome of this case. The Court finds that it would be improper to attempt to make a constitutional decision without having a concrete factual basis with which to work. That basis does not exist in this case and the Court declines to resolve the constitutional question in the abstract. [489 F. Supp. at 520]

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