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Turning to the issue of adversariness, the court found it lacking because the parties simply did not oppose one another. “In this case, the actions of the defendant indicate that there is no geniune adversariness of interests ... The role of the FCC in this action has been to file a statement of no opposition to plaintiffs' motion for summary judgment because defendant agrees that the statute is unconstitutional . . . In sum, the Court finds that abundant evidence indicates that all parties seek this Court to declare § 399(a) unconstitutional. Therefore, there is no case or controversy under Article III." [Id.]

Finally, the court addressed the fact that the decision not to argue in favor of the statute was made by the Executive branch, thus creating a conflict with the Legislative branch which passed the statute in the first instance. This, said Judge Lucas, "flavored the suit with a "sub silentio prayer by the Executive branch for action by the Judicial branch that it cannot take itself.” [Id. at 521 For that reason, the court stated, a particularly heavy burden fell on the plaintiff to present "concrete facts" and other jurisdictiona requisites "to insure that such clashes between the two other branches are resolved as the Constitution envisions." [Id. at 520]

On April 24, 1980, the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit [No. 80-5333), and or June 2 they moved to have consideration of the appeal expedited citing an on-going denial of First Amendment rights during ai election year. On June 6, the Senate, as amicus curiae, responded taking "no position" on the motion to expedite the appeal, bu pointing out that the plaintiffs still had not averred any “upcomin specific broadcast on a specific matter at any specific time necess tating immediate resolution of this suit.” În an order issued o June 10, 1980, the circuit court denied the motion for expeditio without prejudice to its renewal after briefing was completed.

The issues on appeal were those considered in the lower cour whether the case presented an Article III “case or controversy ripe for adjudication; whether there was requisite adversariness parties; and whether the doctrine of exhaustion of administrativ remedies was applicable. The briefs of the plaintiffs-appellant filed August 5, 1980, and the Senate as amicus curiae, filed Nover ber 4, 1980, essentially reiterated the arguments made in distri court. In a reply brief filed on November 19, 1980, the plaintift appellants took particular pains to dispute what they felt was t Senate's implication that “the executive and legislative branches the federal government have trumped up a lawsuit to gain impro er access to the judicial branch.” (Appellants' Reply Brief, Nove ber 19, 1980, at 2] The plaintiffs claimed to have been "shocked” learn that the Justice Department and FCC would not contest t suit, and noted that the decision was “totally outside the[ir] contr or knowledge" and should not be allowed to prejudice plaintif ability to assert their constitutional rights. (Id. at 18-19]

On December 12, 1980, the plaintiffs-appellants renewed the motion to expedite the appeal, which was granted by the court an order filed December 24.

On April 9, 1981, the defendant-appellee FCC, through the J tice Department, filed a motion to vacate the judgment and opini of the district court and to remand the case to the lower court

reconsideration. Noting that "the Attorney General has this week decided that the government should change its position in this case, and that change in position . . . significantly alters the nature of the issues presented," the FCC argued that reconsideration was more appropriate than the circuit court's deciding the appeal as presently briefed. [Motion to Vacate and Remand, April 9, 1981, at 1] The FCC advised the appeals court that the new Attorney General had now directed the Government to defend the constitutionality of section 399(a), thus mooting the issue of whether the case remained adverse when the Justice Department originally refused to defend the constitutionality of the statute. On the ripeness question, the FCC, while admitting that it was not mooted, contended that the new development "significantly affects the context and analysis necessary for proper evaluation of this issue since the original decision not to defend the statute "may have colored the district court's reasoning, particularly when considering the hardship in waiting until after a violation of the statute before allowing judicial consideration of its constitutionality.” (Id. at 3] On April 10, 1981, a panel of the Court of Appeals for the Ninth Circuit ordered the case remanded to the district court for a period of 56 days and suggested that the lower court vacate the judgment and, within the time of the remand, enter a new judgment. The panel cited the change in position of the Justice Department for its order.

On April 23, 1981, District Court Judge Lucas asked the appellate court to extend the period of remand to June 22 to accommodate his calendar. A similar request had been made by the plaintiffs in a motion for clarification and modification filed with the circuit court a week earlier. On April 30, the appeals court granted Judge Lucas' request, and allowed him to further extend the remand period himself if his new jurisdictional ruling necessitated more time for trial. In that event, the court suggested that the plaintiff-appellants might wish to dismiss the pending appeal without prejudice.

Meanwhile, in the district court, both the plaintiffs and the defendant FCC filed status reports on April 16 proposing a briefing schedule which would permit the FCC, the plaintiffs, and the Senate amicus to file briefs on the jurisdictional issues-ripeness and adversariness—and the court to hear and decide the issues prior to the end of the remand period. (Since the Justice Department, on behalf of the FCC, had essentially removed itself from the case in January 1980, the defendants had never briefed these issues; only the Senate amicus and the plaintiffs had done so.)

On May 19, 1981, the defendant FCC filed its memorandum regarding jurisdiction in the district court. It argued that the decision of the Attorney General to defend section 399(a) affected both bases for the court's earlier dismissal of the case for lack of adversary parties and ripeness, and conferred jurisdiction on the district court. Not only did the decision moot the question of adversariness, the FCC maintained, but it also changed the context for determining whether the case was ripe for adjudication:

The Court's earlier determination that the value of a concrete factual basis for a constitutional decision was not

outweighed by the harm to the parties in postponing a de-
cision-was reached in the context of defendant's refusal
to defend the constitutionality of the statute. That refusal
to defend, coupled with the affidavit of a responsible
member of defendant's staff as to his hypothetical recom-
mendation in the event of violation of the statute, suggest-
ed that the harm to plaintiffs in requiring that the consti-
tutionality of the statute be determined in the context of
an actual violation would be minimal. The Attorney Gen-
eral's decision to defend the statute's constitutionality,
while conceivably not altering the recommendations that
might be made to defendant by defendant's Broadcast
Bureau Chief, may increase the risk of adverse action by
defendant should plaintiff Pacifica implement its an-
nounced intention to editorialize in violation of the stat-
ute. (Defendant's Memorandum on Remand from Court of

Appeals Re Jurisdiction, May 19, 1981, at 4-5] Furthermore, the FCC asserted, in addition to administrative sanctions plaintiff Pacifica also would potentially be subject to criminal liability for violating section 399(a). Pacifica should not be required to face the possibility of both administrative and penal sanctions brought on by the Attorney General's decision before challenging the statute, the FCC concluded.

On May 29, 1981, the plaintiffs filed their memorandum regarding the jurisdictional issues. With respect to adversity of the parties, the plaintiffs agreed with the FCC that the decision of the Justice Department to defend the statute rendered the claim moot. With respect to ripeness, the plaintiffs essentially reiterated the arguments made prevously in their February 13, 1980 opposition to the Senate's motion to dismiss. (See pages 247, supra for a discussion of the plaintiffs' earlier opposition.) In sum, the plaintiffs argued that: (1) they did not have to violate a statute to challenge its constitutionality; the controversy was ripe because their rights were presently being injured by the statute's operation; (2) Pacifica would broadcast editorials if it were not prohibited from doing so by section 399(a); and (3) plaintiffs Waxman and the League of Women Voters, as listeners and viewers of noncommercial broadcasting stations, had no other available means to challenge the constitutionality of section 399(a).

Also on May 29, 1981, the Senate filed a motion to withdraw from the case as amicus curiae in light of the Executive branch's decision to defend the case. After reviewing the reasons for the Senate's original participation the accompanying memorandum concluded:

The Senate's primary concern in appearing as amicus curiae in this case was to affirm the principle that the Executive Branch cannot deny the validity of Acts of Congress. This Court's ruling and the reconsidered action of the Department of Justice have reaffirmed that principle with renewed vigor. Now that the Department will defend the statute, the ordinary principles of separation of powers, absent special circumstances not present here, call for the Senate to leave that defense to the Executive,

whose function it is to enforce and defend the laws.
[Memorandum of Senate in Support of Motion to With-

draw, May 29, 1981, at 4] On June 8, 1981, Judge Lucas heard arguments on the question of jurisdiction and took the matter under advisement. He granted the motion of the Senate to withdraw from the case.

On June 18, 1981, Judge Lucas issued an order vacating his March 11, 1980 order dismissing the action. He found that there were now adverse parties to the case since the Justice Department and the FCC had decided to defend and enforce section 399(a) and the case was ripe for adjudication since the Executive branch's decision to enforce the statute had eliminated any uncertainty about the existence of an actual case or controversy and had subjected plaintiff Pacifica to a realistic threat of severe administative and criminal penalties should it violate the statute.

On June 26, 1981, the plaintiffs filed a motion in the Court of Appeals for the Ninth Circuit asking the court to dismiss their earlier appeal without prejudice. The plaintiffs noted in their motion that since Judge Lucas had now held that the case was justiciable there was no need to pursue the appeal. On July 14, 1981, the circuit court granted the plaintiffs' unopposed motion and dismissed the appeal.

On July 13, 1981, the plaintiffs filed a supplemental memorandum of points and authorities in support of their motion for summary judgment on the merits in the district court. (The plaintiffs' motion for summary judgment was originally filed on September 24, 1979 but was taken off the court's calendar shortly after the Senate entered the case as amicus and moved to dismiss the action. For a discussion of the original motion and accompanying memorandum of the plaintiffs, see page 333, supra.) The new memorandum reiterated the arguments initially raised by the plaintiffs two years earlier and asserted that subsequent decisions by the Supreme Court had underscored the “importance of the First Amendment rights at stake in this case and the exacting scrutiny to which content-based restrictions of speech are subject.” (Supplemental Memorandum of Points and Authorities in Support of Motion for Summary Judgment, July 13, 1981, at 2] The plaintiffs also elaborated on their contention that section 399(a) violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment, arguing that there was "no principled basis for distinguishing between commercial and noncommercial broadcasters" since "[a]ll broadcasters, commercial and noncommercial alike, face similar dangers of improper political pressures." (Id. at 7]

On July 22, 1981, the Justice Department, on behalf of the defendant FCC, filed a memorandum in opposition to the plaintiffs' motion for summary judgment. The memorandum argued, inter alia, that: (1) section 399(a) was not unconstitutionally overbroad since it could, consistent with the will of Congress, be construed so that its reach was "clearly and precisely” limited to conduct Congress was permitted to regulate; (2) section 399(a) could be construed, in line with Congressional intent (as revealed in the relevant legislative history), to apply to government funded noncommercial educational broadcasters such as plaintiff Pacifica, even if it was determined that the section could not be constitutionally applied to noncommercial educational broadcasters who did not receive government funding; (3) review of the regulation of broadcasting involved the application of "special" First Amendment standards reflecting the special characteristics of the broadcasting medium as opposed to other media (i.e., limited number of frequencies available, the pervasive presence of the broadcast medium in the lives of Americans, the medium's accessibility to children, etc.); (4) section 399(a) served a compelling government interest that noncommercial educational broadcasters receiving government funding not be coerced because of that funding to broadcast editorials favorable to the government and that the funding not interfere with the balanced presentation of opinion on those stations; and (5) section 399(a)'s limited application to noncommercial educational broadcasters receiving federal funds did not violate the equal protection mandate of the Fifth Amendment because it was carefully tailored to the compelling government interest being served.

On July 27, 1981, the plaintiffs filed a reply memorandum in support of their motion for summary judgment. In their view, a court could not construe section 399(a) in any fashion so that it did not violate the First Amendment. According to the plaintiffs, the defendant's proposed narrowing of the statute to reach only government funded stations ignored the plain meaning of section 399(a), and would, in any event, itself be unconstitutionally vague and de pendent on a case-by-case interpretation. There were, said the plaintiffs, no "special characteristics" of the noncommercial broadcast medium which would justify banning protected First Amendment editorial speech, nor was there any compelling government interest” which would be served by such a ban. Finally, the plaintiffs asserted again that section 399(a) violated equal protection re quirements because it was a "content-based prohibition" grounded not on an individualized inquiry but on a presumption of noncommercial broadcasting vulnerability to government influence.

On August 3, 1981, a hearing was held on the plaintiffs' motion for summary judgment. At that time a new briefing schedule was arranged to respond to the fact that section 399 had been amended by Congress three days earlier to read as follows:

Sec. 399. No noncommercial educational broadcsting 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. (Omnibus Budget Reconciliation Act of 1981, Section 1229, as set forth in Conference Report, H.

Rep. No. 97-208, 97th Cong., 1st Session 392 (1981)] On August 31, 1981, the plaintiffs filed a second memorandum in support of their motion for summary judgment, arguing that the new section was still unconstitutional on First and Fifth Amendment grounds.

On September 15, 1981, the defendant FCC filed a supplemental memorandum addressing the recent Congressional amendment of section 399. The FCC contended, first, that the plaintiffs' action should be dismissed unless a supplemental complaint was filed ad

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