FEDERAL COMMUNICATIONS COMMISSION, APPELLANT v. LEAGUE OF WOMEN VOTERS OF CALIFORNIA, ET AL. No. 82-912 In the Supreme Court of the United States October Term, 1982 On Appeal from the United States District Court for the Central District of California Jurisdictional Statement PARTIES TO THE PROCEEDING In addition to the appellee named in the caption, the appellees include Pacifica Foundation and Henry Waxman. TABLE OF CONTENTS Opinion below Jurisdiction Constitutional and statutory provisions involved Statement The question is substantial Conclusion Appendix A Appendix B Appendix C OPINION BELOW The opinion of the district court (App. A, infra, 1a-20a) is reported at 547 F.Supp. 379. JURISDICTION The judgment of the district court (App. B, infra, 21a-22a) was entered on August 5, 1982. The notice of appeal (App. C, infra, 23a) was filed on September 3, 1982. On October 26, 1982, Justice Rehnquist extended the time for docketing an appeal until December 1, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1252. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. The First Amendment to the Constitution provides in pertinent part: Congress shall make no law * * * abridging the freedom of speech, or of the press * * *. 2. 47 U.S.C. 399, as amended by the Public Broadcasting Amendment Act of 1981, Section 1229, Pub. L. No. 97-35, 95 Stat. 730, provides: No noncommercial educational broadcasting 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. QUESTION PRESENTED Whether 47 U.S.C. 399, which prohibits "editorializing" by noncommercial educational broadcasting stations that receive grants from the Corporation for Public Broadcasting, violates the First Amendment. STATEMENT 1. Congress enacted the Public Broadcasting Act of 1967, 47 U.S.C. (& Supp. IV) 390 et seq., in order "to encourage the growth and development of public radio and television broadcasting, including the use of such media for instructional, educational and cultural purposes" (47 U.S.C. (& Supp. IV) 396). To achieve these goals, Congress made considerable financial assistance available "to assist in providing the broadcast facilities necessary to carry educational radio and television programs * * * (and to encourage the development of) programs of high quality, responsive to the cultural and educational needs of the people" (S. Rep. No. 222, 90th Cong., 1st Sess. 2 (1967)). At the same time, Congress wanted to prevent the government's substantial financial support from subjecting public broadcasters to undue political influence or pressure. /1/ Thus, to ensure that the discussion of important public issues would not be distorted by government funding, Congress enacted several safeguards, including the predecessor of the provision at issue in this case. /2/ In its original form, 47 U.S.C. 399 stated that "(n)o noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office." The Federal Communications Commission has construed "editorializing" to mean only the "use of noncommercial educational broadcast facilities by licensees, their management or those speaking on their behalf for the propagation of the licensees' own views on public issues * * *." In re Complaint of Accuracy in Media, Inc., 45 F.C.C.2d 297, 302 (1973). /3/ Accordingly, broadcasters are not precluded from airing programs advocating controversial views as long as editorials are not issued in the broadcaster's name. Congress took pains to "emphasize() that these provisions (prohibiting editorializing) are not intended to preclude balanced, fair, and objective presentations of controversial issues by noncommercial educational broadcast stations" (H.R. Rep. No. 794, 90th Cong., 1st Sess. 12 (1967)). When the original act was passed, it was generally assumed that all public broadcasting stations would receive government funding, and the prohibition against editorializing extended to all public broadcasters. /4/ That assumption proved unfounded, /5/ and 47 U.S.C. 399 was amended in 1981 so that the prohibition of editorializing would extend only to those stations that receive Corporation for Public Broadcasting funds (Public Broadcasting Amendment Act of 1981, Pub. L. No. 97-35, 95 Stat. 725 et seq.). 2. Appellee Pacifica Foundation is a non-profit educational corporation that owns and operates noncommercial educational broadcasting stations in five major markets (App. A, infra, 6a). Its licensees receive Corporation for Public Broadcasting grants and are therefore prohibited from editorializing (ibid.). In 1979, Pacifica and others /6/ brought this suit in the United States District Court for the Central District of California challenging the constitutionality of the provisions of 47 U.S.C. 399 that prohibited public broadcasters from editorializing or supporting candidates for political office. In October 1979, former Attorney General Civiletti informed the Senate that the Department of Justice would not defend the constitutionality of the statute, in part because it applied to all public broadcasting stations and not just to those receiving federal aid. The Senate then adopted a resolution, pursuant to 2 U.S.C. (Supp. V) 288e(a), directing its counsel to intervene as amicus curiae and defend the suit (App. A, infra, 3a & n.3). /7/ In April 1981, Attorney General Smith notified the Senate that the Department of Justice would defend the statute and noted that the statute could be narrowly construed to avoid constitutional defects. The government subsequently urged the district court to uphold the constitutionality of the statute at least insofar as it applied to publicly-funded stations. See Defendant's Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment 11-20. While the suit was pending, Congress enacted the recent amendment of 47 U.S.C. 399 that expressly confines the prohibition of editorializing to those stations that receive Corporation for Public Broadcasting funds. Thereafter, appellees amended their complaint and abandoned their attack upon the portion of the statute forbidding public broadcasters to endorse political candidates (App. A, infra, 5a). Their sole remaining claim was that the prohibition of editorializing violates the First Amendment (ibid.). 3. The district court granted summary judgment in favor of appellees (App. B, infra, 21a-22a). The court first concluded (App. A, infra, 11a) that "Section 399 can survive scrutiny under the First Amendment only if * * * it serves a compelling government interest and is narrowly tailored to that end." Observing that "regulations such as Section 399 are presumptively unconstitutional," the court then held that Section 399 was not supported by any compelling government interest (ibid.). The court refused to accept the contention (App. A, infra, 11a) that "Section 399 serves a compelling government interest in ensuring that funded noncommercial broadcasters do not become propaganda organs for the government." The court noted (App. A, infra, 12a-13a) that "(Corporation for Public Broadcasting) funding in 1977 did not constitute more than approximately 25%" of the budget of the average station receiving such aid, that "no broadcaster receives more than approximately 33% of its funds through (such) grants," that Pacifica allegedly received only 14% of its total revenue from such grants, and that the amount of Corporation for Public Broadcasting funding was being reduced. The court also concluded (id. at 13a-14a) that fear of government pressure was unfounded because the Corporation for Public Broadcasting "is an independent, nonprofit, private corporation"; because the Corporation's "funding decisions are based on objective, non-discretionary criteria"; and because the "fairness doctrine" /8/ prevents broadcasters from presenting "one-sided political propaganda." The court similarly rejected (App. A, infra, 15a) the government's contention that "restrictions on editorializing are necessary to ensure that government funding of noncommercial broadcast stations will not interfere with the balanced presentation of opinion on those stations." The court found no evidence that Congress had enacted Section 399 for that purpose and that, in any event, such a "concern (was) not sufficiently compelling to justify the ban on speech imposed by Section 399 under the First Amendment" (App. A, infra, 17a). /9/ THE QUESTION IS SUBSTANTIAL The district court has declared unconstitutional an important statutory provision that not only serves the vital function of insulating government-funded public broadcasting stations from political influence but also prevents the use of public funds to propagate controversial private views. The court apparently attached no legal significance to the fact that the provision of 47 U.S.C. 399 regarding editorializing now applies only to those stations that voluntarily accept Corporation for Public Broadcasting grants. The court therefore applied an unduly strict test in deciding whether that provision satisfies First Amendment standards. Based largely upon its own sanguine assessment of the possibility of government pressure upon public broadcasters, the court also seriously underestimated the substantial and legitimate interest served by the provision against editorializing. Congress recently reviewed the need for the provision on editorializing and decided to retain it in revised form, both because it was Congress' judgment that the provision meets First Amendment standards and because Congress continued to believe that it serves important public needs. This Court should note probable jurisdiction to review the district court's exercise of "the grave power of annulling an Act of Congress." United States v. Gainey, 380 U.S. 63, 65 (1965). 1. The district court plainly erred in holding (App. A, infra, 11a) that the prohibition of editorializing by certain public broadcasting stations "can survive scrutiny under the First Amendment only if * * * it serves a compelling government interest and is narrowly tailored to that end." Because the prohibition of editorializing applies only to those broadcasters who voluntarily receive certain government grants, that provision is a legitimate exercise of Congress' Spending Power. "Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. This Court has repeatedly upheld against constitutional challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal policy" (Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (opinion of Burger, C.J.)). This Court has never held or suggested that restrictions on expression imposed as conditions to the receipt of federal funds must be supported by a compelling government interest, and it is apparent that any such blanket rule would lead to absurd results. Certainly Congress may direct that federal funds be spent for a particular purpose and not for others without demonstrating a compelling reason for its choice. For example, Congress has prohibited the unauthorized use of federal funds for lobbying (18 U.S.C. 1913) even though lobbying is protected by the First Amendment. Congress has also prohibited the International Communication Agency (the successor of the United States Information Agency and the Voice of America) from disseminating information within this country (22 U.S.C. (Supp. IV) 1461), despite the fact that such a restriction would certainly violate the First Amendment if applied to a private news organization. If Congress had chosen to establish a state-owned broadcasting system, as most countries have, rather than subsidizing private noncommercial stations, there seems little doubt that Congress could have prohibited officers and employees of the system from "editorializing" in the name of the system. /10/ The prohibition of editorializing at issue here, while not strictly analogous, nevertheless shares many of the characteristics of the restrictions noted above. Recognizing that Corporation for Public Broadcasting grants are generally unrestricted and thus assist all aspects of a station's operations (see 47 U.S.C. (Supp. IV) 396(k)(7)), Congress in essence has insisted that no portion of those grants be used for editorializing. To be sure, the stations affected by the provisions on editorializing are not government-owned and receive only a portion of their revenue from the federal government. In addition, such stations may claim that their editorials are produced and broadcast solely with private funds. But despite these differences it seems clear that a compelling interest test is inappropriate in this context since the provision at issue does not seek to regulate private speech but rather attempts to prevent misuse of public funds. Even where the question of misuse of public funds is much less directly involved than it is here, conditions restricting expression may be attached to the receipt of federal funds without showing a compelling need for those conditions. For example, as a condition of their compensation from the public treasury, government employees may be subjected to restrictions on off-the-job expression that would be unconstitutional if applied to other persons. A federal employee may not hold office in a political party, work at the polls, organize a political party or club, participate actively in partisan fund-raising, become a candidate or campaign for many elective offices, actively manage a partisan campaign, solicit votes for a partisan candidate, serve as a delegate to a political convention, or engage in other forms of political activity that would otherwise be protected by the First Amendment. 5 U.S.C. 7324; CSC v. Letter Carriers, 413 U.S. 548 (1973). In a similar vein, government contractors may not make political contributions during the life of a government contract (2 U.S.C. 441c) even though the First Amendment protects a citizen's right to contribute to a candidate or political organization (see Buckley v. Valeo, 424 U.S. 1, 22-23 (1976)). In reviewing the constitutionality of restrictions imposed upon public employees' expression off the job, this Court has not applied a compelling interest test but has balanced the "interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees" (Pickering v. Board of Education, 391 U.S. 563, 568 (1968); see also CSC v. Letter Carriers, supra, 413 U.S. at 564). If such a balancing test is applied in this case, then the prohibition of editorializing satisfied First Amendment standards. /11/ That prohibition serves at least two substantial government interests and does not severely restrict freedom of expression. 2.a. Both when the Public Broadcasting Act was enacted in 1967 and when 47 U.S.C. 399 was recently amended, Congress concluded that restrictions on editorializing were required to insulate public broadcasting stations from political influence and to prevent political considerations from affecting the distribution of federal funds. /12/ On both occasions Congress noted that editorial policy could not help but be affected by public subsidies. As one Congressman remarked: I think it would be a tremendous mistake to put the pressure for editorializing * * * on (public broadcasting) stations * * *. It occurs to me, for example, if the Des Moines Register in my own State were receiving public funds its editorial policy would be substantially different or otherwise, it would * * * no longer be relying on those Federal funds. If it were relying on public funds, it could not speak as it does about members of Congress, members of the Iowa Legislature. * * * (It) would probably tend to pull punches. I think worse than having no editorial at all is a station that editorializes while at the same time pulling punches. I suspect there would be some subject matters that would not be covered at all or otherwise, subject matters that would be covered in a way that would not be desirable. Hearings on H.R. 3238 Before the Subcomm. on Telecommunications, Consumer Protection, and Finance of the House Comm. on Energy and Commerce, 97th Cong., 1st Sess. (1981) (remarks of Rep. Tauke). See also page 3, note 1, supra. If public broadcasting stations were permitted to editorialize, they might well feel considerable pressure to broadcast editorials pleasing to those responsible for or able to influence the distribution of federal funds. Similarly, if publicly-funded stations became associated with particular editorial positions, it would be difficult to prevent political considerations from influencing decisions regarding the distribution of federal funds. One need only envision the political pressure that would inevitably be brought to bear if newspapers and magazines with well-known political leanings were financially dependent upon discretionary federal aid. Congress is unquestionably experienced in such matters and most capable of assessing the degree to which the provision of public funds can cause disruptive influence. Accordingly, Congress' judgment in such areas is entitled to considerable judicial respect. See CSC v. Letter Carriers, supra, 413 U.S. at 566-567 ("(F)or many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs * * * '(it is necessary to proscribe) active participation in partisan political management and partisan political campaigns.' * * * (T)hat is (Congress') current view of the matter, and we are not now in any position to dispute it.") The district court's reasons for concluding that 47 U.S.C. 399 is not needed to insulate public broadcasters from political pressures are not reassuring. The court first relied (App. A, infra, 13a) upon the "modest level" of funding provided by the Corporation for Public Broadcasting. The court noted (id. at 12a-13a) that for the average stations affected by the provision on editorializing such grants constituted not more than approximately 25% of their operating budgets in 1977, that for no such station did that figure exceed approximately 33% of its budget, and that only 14% of appellee Pacifica's revenue was allegedly derived from Corporation for Public Broadcasting grants. The flaws in the court's reasoning are manifest. There are myriad companies, and presumably many public broadcasters, for which even a 14% decrease in net income would spell bankruptcy, and there are undoubtedly many more for which the result would be a significant curtailment of operations with the loss of jobs, salary cuts, and other unpleasant consequences. The government is by far the greatest single source of funding for public broadcasters, and alternative sources of funding capable of compensating for withdrawn government assistance are not available. See Carnegie Commission, A Public Trust: The Report of the Carnegie Commission on the Future of Public Broadcasting 93-149 (1979). Accordingly, the potential influence that the government may wield as a result of its funding decisions is substantial. /13/ In addition, the relevance of the figures cited by the court is doubtful because the availability of matching funds from the Corporation for Public Broadcasting induces private contributions. See 47 U.S.C. (Supp. IV) 396(k)(6)(B) (ii); Carnegie Commission, supra, at 123-127. /14/ The district court also suggested (App. A, infra, 13a) that the fear of undue government influence was "even more speculative" because of the "protective insulation" provided by the Corporation for Public Broadcasting. However, Congress had good reasons to regard that insulation as insufficient. First, although we certainly do not mean to suggest that the Corporation has not faithfully discharged its duty, it is far from clear that the structure of that body makes its use for partisan or ideological ends impossible. The Corporation is governed by a 10-person board of directors appointed to five-year terms by the President with the advice and consent of the Senate (95 Stat. 726, 47 U.S.C. 396(c)(1) and (4)), and a majority of the Board may belong to the same political party (95 Stat. 726, 47 U.S.C. 396(c)(1)). Thus, a majority of the board could seek to promote the party to which they belong. Moreover, board members from both parties might share a distaste for the minority views expressed by certain broadcasters. Second, even if the Corporation's board of directors did not pressure recipient stations, such pressure might well be exerted by the Corporation's officers or employees, who might have strong personal views on certain editorial subjects. Third, regardless of whether the Corporation in fact took broadcasters' editorial positions into account in making funding decisions, stations might believe that the Corporation would do so. Finally, the Corporation cannot insulate public broadcasters from general funding decisions made by Congress in response to unfavorable editorials. /15/ In addition, the district court relied upon the "fairness doctrine," but Congress certainly had a reasonable basis for concluding that the fairness doctrine is not adequate by itself to insulate noncommercial stations from political pressure. Despite the fairness doctrine, a group or person capable of wielding influence might well desire that a public broadcasting station take a favorable editorial position on a controversial subject. If such an editorial was broadcast, all that the fairness doctrine would require is the provision of reply time for persons with opposing points of view. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 378 (1969). Thus, proponents of a particular point of view might well believe that an editorial endorsed by a "public" television or radio station would carry far more clout than any response by a private individual or a spokesman for a private group. /16/ In sum, the prohibition of editorializing serves a highly important government interest because the other safeguards upon which the district court relied are insufficient to shield publicly-funded broadcasters from political pressures. Indeed, despite all these protections, the Carnegie Commission wrote in 1979: "(W)e have heard testimony on numerous examples of federal agency interference in program content, pressures on the system from congressional and administrative sources, and a widespread apprehension in the system after experiencing what it perceived as threats to its survival." Carnegie Commission, supra, at 101. Far more knowledgeable than the district court about the use of political power and influence, Congress accurately assessed the need to ban editorializing by stations that receive certain federal grants, and its judgment should have been honored. b. The prohibition of editorializing serves a second highly important government interest not discussed by the district court: it prevents the use of taxpayers' money to promote controversial private views and thus obviates potential First Amendment problems. In Abood v. Detroit Board of Education, 431 U.S. 209, 234-235 (1977), this Court held that citizens may not be compelled to contribute to organizations that promote ideological causes with which the contributors may not agree. This is so because "contributing to an organization for the purpose of spreading a political message," as well as refraining from making such contributions, is protected by the First Amendment (431 U.S. at 234). It might therefore raise constitutional problems to collect tax money from unwilling contributors and then give it to television and radio stations for the purpose of propagandizing concerning editorial positions with which a great many taxpayers might disagree. /17/ This problem is magnified because of the tremendous power of the broadcast media, the scarcity of broadcast frequencies (see Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 388), and the ironic fact that government-funded "public" television stations may be less answerable to the public than commercial stations dependent upon ratings for advertising revenue. Thus, the use of tax dollars to subsidize editorializing by the owners of noncommercial broadcasting stations is not unlike the expenditure of large amounts of public funds to propagate the views held by persons who happen to own any other business -- say, shoe stores or supermarkets. The rationality and fairness of such a scheme would certainly be open to question. As one member of Congress put it (Hearings on H.R. 3238 Before the Subcomm. on Telecommunications, Consumer Protection, and Finance of the House Comm. on Energy and Commerce, 97th Cong., 1st Sess. (1981) (remarks of Rep. Moorhead): There is nothing in the First Amendment that guarantees that the Federal Government will give one person a bigger horn than somebody else for the exercise of his rights. When we pay for public broadcasting we are giving them a tremendous voice. If they are going to be allowed to editorialize with Federal money then they have a tremendous advantage over other points of view that may be just as valid. Congress' judgment concerning the protection of First Amendment interests in this area is entitled to respect. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102-103 (1973). 3. On the other side of the balance, the restriction upon expression by noncommercial educational stations is not severe. The FCC has interpreted "editorializing" to mean only the expression of a licensee's views by its management or a management spokesman (In re Complaint of Accuracy in Media, Inc., supra, 45 F.C.C.2d at 302). The Commission has stated (ibid.) that the prohibition of editorializing permits "the expression of views on public issues by employees of a noncommercial educational broadcast station in their capacity as individuals * * * provided the surrounding facts and circumstances do not indicate that such views are represented or intended as the official opinion of the licensee or its management." Therefore, 47 U.S.C. 399 allows station employees, journalists, academics, experts, and all other persons to express their views freely. Subject to the fairness doctrine, political figures may be invited to give their opinions. Any news subject may be covered in any manner. Any documentary or entertainment show may be aired. Any spokesman for any group may be permitted to speak or may be interviewed by any interviewer of management's choice. In addition, the prohibition of editorializing is strictly neutral; it makes no effort to restrict only those expressions of opinion with which those in positions of authority might disagree. Moreover, any station that finds the ban on editorializing unduly restrictive may simply decline Corporation for Public Broadcasting grants. If such grants constitute only a small percentage of a station's budget, as the district court seemed to believe (see App. A, infra, 12a-14a), then the burden of doing without them should not be great. If, on the other hand, the station could not continue operations without such grants, then management cannot legitimately claim the right to express its own views with public funds. CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. REX E. LEE Solicitor General J. PAUL MCGRATH Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General SAMUEL S. ALITO, JR. Assistant to the Solicitor General ANTHONY J. STEINMEYER Attorney DECEMBER 1982 /1/ See 113 Cong. Rec. 26383 (1967) (remarks of Rep. Staggers: "(A) concern, shared by all members of the committee (is) that the proposed (Legal Broadcasting) Corporation could become an instrument for political propaganda. We think we have solved the problems with extensive legislative language in the bill"); id. at 26392 (remarks of Rep. Watson: "There is another potential danger. This Corporation could (become) a propaganda monster * * *"); id. at 26394 (remarks of Rep. Brotzman: "The fear of Government control of programming was recurrent during consideration of this bill by my committee. (The amendment that, inter alia, prohibits editorializing) will prevent this corporation from becoming a Government propaganda tool"); id. at 26399 (remarks of Rep. McClure: "(I am concerned that) programs produced by the Corporation will be used for propaganda purposes, to encourage a particular political philosophy or to keep a political party in power"); id. at 26407 (remarks of Rep. Springer); id. at 26408 (remarks of Rep. Brown); id. at 26412 (remarks of Rep. McCormack). /2/ In addition to the prohibition against editorializing and supporting political candidates, the Act now provides that many federal grants to public broadcasting are to be made by a private, nonprofit corporation, the "Corporation for Public Broadcasting"; that members of the Corporation's board of directors may not be employees or officers of the United States; that no more than six of the 10 members of the board may belong to the same political party; and that the corporation may not own or operate any public broadcasting station (95 Stat. 725-726, 47 U.S.C. 396(c)). In addition, no federal official is authorized to direct or control any of the corporation's activities or to direct or control the content or distribution of programs (47 U.S.C. 399). /3/ The Federal Communications Commission is charged with the administration of 47 U.S.C. 399. See 47 U.S.C. 151. /4/ See, e.g., 113 Cong. Rec. 26416 (1967) (amendment proposed by Rep. Devine, which would have authorized $5 million to be "divide(d) equally and distribute(d) among educational broadcasting stations in the United States which are in existence on the date of enactment"). /5/ In 1970, as described by the Carnegie Commission on the Future of Public Broadcasting, the Corporation for Public Broadcasting determined to target its grants so as "to create a core of well-financed, professional stations * * * (and) to encourage stations seeking CPB aid (who were) dedicated to general educational or cultural service, rather than strictly institutional service or religious programming * * *." Carnegie Commission, A Public Trust: The Report of the Carnegie Commission on the Future of Public Broadcasting 189 (1979). /6/ The League of Women Voters of California and Representative Henry Waxman are also plaintiffs in this suit. The district court did not resolve whether these plaintiffs have standing to bring this action since their complaint, as ultimately amended, did not seek relief independent of that sought by Pacifica (App. A, infra, 7a). /7/ The district court granted the Senate's motion to dismiss the complaint on the ground that there was no justiciable controversy because the government had decided not to enforce the statute (App. A, infra, 4a). Plaintiffs appealed, and during the pendency of the appeal, the Attorney General notified the court of appeals of his decision to defend the suit. The court of appeals then remanded the case to the district court; the district court vacated its order of dismissal; and the Senate Legal Counsel withdrew from the litigation (ibid.). /8/ The "fairness doctrine" imposes on all broadcasters -- public and commercial -- two affirmative responsibilities: "coverage of issues of public importance must be adequate and must fairly reflect differing viewpoints." Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 111 (1973). /9/ Because the court held that Section 399 violates the First Amendment, the court did not rule upon Pacifica's claim that that provision also violates the equal protection guarantee contained in the Due Process Clause of the Fifth Amendment (App. A, infra, 18a-20a). /10/ Other, even more obvious, examples come readily to mind. For example, privately employed scientists undoubtedly have the constitutional right to choose their own areas of study, but a scientist who accepts a government grant to conduct research in a certain area may be required to abide by the terms of the grant even if the government cannot demonstrate a compelling interest in obtaining research in the area it has chosen rather than in another area viewed by the scientist as more beneficial. /11/ Even if the prohibition of editorializing applied to all noncommercial broadcasting stations, the test employed by the district court would be incorrect. Because of the scarcity of broadcast frequencies (see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969), the government may take reasonable steps to allocate this scarce public resource fairly, even though comparable measures would not be permitted with respect to the print media or other forms of expression. For example, a broadcaster may be deprived of his license if the Federal Communications Commission determines that such an action would serve "the public interest, convenience, and necessity." 47 U.S.C. 309(a). See FCC v. WOKO, Inc., 329 U.S. 223, 229 (1946). In the interest of diversifying control of the media of mass communications, the FCC may "den(y) (broadcasting) licenses to newspapers owners." FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 794 (1978). Broadcasters may be required to grant those whom they criticize the use of their facilities to reply to the attacks. Compare Red Lion Broadcasting Co. v. FCC, supra (fairness doctrine constitutional), with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (statute providing right to reply in newspaper unconstitutional). This Court has not demanded proof of a "compelling" government interest when called upon to assess the validity of such laws, which do not seek to regulate any particular point of view but, like 47 U.S.C. 399, simply attempt to keep the "market-place of ideas" (Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 390) free of distorting influences. Rather than insisting upon proof of a compelling government interest in such circumstances, this Court has balanced the public interests sought to be served by the regulation against the restrictions placed upon broadcasters. See, e.g., Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 386-392. Such an approach is appropriate to the provision at issue here, which seeks to allow the government to support educational and cultural broadcasting without distorting public discussion of important and controversial issues. /12/ In 1967, Congress noted that "(c)onsiderable testimony was heard that no noncommercial educational station editorializes," but nevertheless forbade editorializing "(o)ut of an abundance of caution." H.R. Rep. No. 572, 90th Cong., 1st Sess. 20 (1967). The district court failed to note the context in which the phrase "(o)ut of an abundance of caution" was used and therefore came to the incorrect conclusion that Congress believed that other provisions of the Public Broadcasting Act were sufficient to shield public broadcasters from political pressures (App. A, infra, 15a). Instead, however, Congress viewed the problems posed by editorializing as so significant that it prohibited editorializing even though it was not then practiced by any public broadcasting station. /13/ For example, the Carnegie Commission noted that corporations, which provide a significantly smaller amount of funds to public broadcasting stations, have "undoubtedly skewed the total schedule in the direction of cultural programs which are popular among the 'upscale' audiences that corporations prefer. Controversial drama, documentaries, public affairs, and programs for minorities must then compete for remaining discretionary money." "(E)ditorial freedom does not thrive in such circumstances." Carnegie Commission, supra, at 107, 105. /14/ Federal agencies other than the Corporation for Public Broadcasting, such as the Departments of Education and Commerce, the National Endowment for the Arts, and the National Endowment for the Humanities, as well as state and local governments, provide substantial funding for noncommercial broadcasting stations. See Carnegie Commission, supra, at 101, 113. Hence, if such stations were permitted to editorialize, their incentive to express views they believe would please the government would be far greater than the district court's percentages suggest. /15/ The district court relied (App. A, infra, 13a) upon the fact that Corporation for Public Broadcasting grants are distributed according to "objective, nondiscretionary criteria." Neutral formulas, however, obviously cannot affect the total appropriation for such grants. Perhaps more important, Congress was not unduly cynical in judging that a system of neutral laws does not always suffice to prevent partisan or ideological bias from affecting the implementation of those laws. In this regard, the district court cited a passage in the Carnegie Commission report that noted that the system of matching grants by which federal funds are allocated among stations "'is well positioned to avoid review of program content as a condition for increased funding'" (App. A, infra, 14a n.8, quoting Carnegie Commission, supra, at 124). The district court, however, failed to note the Commission's conclusion that while "the theory of a matching formula for funding public broadcasting is sound * * * (in actual practice) the purpose of (the plan) -- the insulation from annual political review of the system -- has been undermined." Carnegie Commission, supra, at 125-126. /16/ At one time, all broadcasters were forbidden to editorialize. See, e.g., In re The Mayflower Broadcasting Corp., 8 F.C.C. 333, 340 (1940) ("(A)s one licensed to operate in a public domain the licensee has assumed the obligation of presenting all sides of important public questions * * *. The public interest -- not the private -- is paramount.") In 1949, the FCC supplanted this approach with the "fairness doctrine" (Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 377). However, the Commission was there dealing with commercial stations, which of course are far less susceptible to government influence than are stations heavily dependent upon government funds. /17/ When commercial broadcasters choose to advance their private "political, social, and economic views (they are) bounded by only two factors: first, the acceptance of a sufficient number of readers -- and hence advertisers -- to assure financial success; and, second, the journalistic integrity of its editors and publishers" (Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 117 (1973) (opinion of Burger, C.J.)). In the case of noncommercial stations, the first factor may be less important. Private contributions supply only part of their budgets, and those able to make such contributions may not constitute a representative sample of the audience. Appendix Omitted