Amdt1.3.22.5 Restrictions on Editorializing

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In FCC v. League of Women Voters of California, the Court considered a condition prohibiting any “noncommercial educational broadcasting station” that received certain federal grants from “editorializing.” 1 The Court rejected the Government’s argument that this condition was a permissible exercise of Congress’s spending power in the form of a decision not to “subsidize” editorializing by public broadcast stations.2 Unlike the organization in TWR, the Court reasoned, a regulated station had no way “to segregate its activities according to the source of its funding,” creating a complete bar to editorializing.3

Finding TWR inapposite, the Court analyzed the condition as a restriction on a broadcaster’s speech according to First Amendment standards.4 After affirming that Congress has more leeway to regulate broadcasting than other types of media such as newspapers,5 the Court stated that the condition against editorializing was constitutional only if it was “narrowly tailored to further a substantial governmental interest.” 6 After considering three different potential government interests, the Court ultimately concluded that the condition failed to meet this standard.7 First, the Court reasoned, the condition did not substantially advance an interest in protecting grantee-stations from “governmental coercion and interference” that might be associated with federal funding, nor was it narrowly tailored to further that asserted interest.8 Second, the Court recognized the government’s interest in preventing viewer or listener confusion about the source of the editorializing, but concluded that a less-restrictive disclaimer requirement would have served this interest as effectively.9 Third, the Court reasoned that the condition was not narrowly tailored to Congress’s substantial interest in “ensuring adequate and balanced coverage of public issues” —an interest “already secured by a variety of other regulatory means that intrude far less drastically upon the ‘journalistic freedom’ of noncommercial broadcasters.” 10

Footnotes
1
FCC v. League of Women Voters of Cal., 468 U.S. 364, 366 (1984) (internal quotation marks omitted) (quoting 47 U.S.C. § 399). The condition applied to recipients of grants from the Corporation for Public Broadcasting, a private, nonprofit corporation established by the Public Broadcasting Act of 1967 to, among other duties, “make grants to local broadcasting stations that would ‘aid in financing local educational . . . programming costs of such stations.’” Id. at 369 (quoting 47 U.S.C. § 396(g)(2)(C) (1976 ed.))). back
2
Id. at 399. back
3
Id. at 400. back
4
Id. at 374–80. back
5
See id. at 375–80 (reasoning that due to “spectrum scarcity” (i.e., the limited number of broadcast frequencies) and other factors, “the broadcasting industry plainly operates under restraints not imposed upon other media,” and stating that if “a similar ban on editorializing [were] applied to newspapers and magazines, we would not hesitate to strike it down as violative of the First Amendment” ). back
6
Id. at 380. See Amdt1.3.18 Media Regulation. back
7
League of Women Voters of Cal., 468 U.S. at 398–99. back
8
Id. at 390 (reasoning that several other aspects of the act “substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations’ ability to speak on matters of public concern” ). In the Court’s view, the condition also did “virtually nothing . . . to reduce the risk that public stations will serve solely as outlets for expression of narrow partisan views” from private factions. Id. at 397. back
9
Id. at 395 (suggesting a disclaimer that “the editorial represents only the view of the station’s management and does not in any way represent the views of the Federal Government or any of the station’s other sources of funding” ). back
10
Id. at 380, 397–98 (quoting Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 110 (1973)). back