412 U.S. 94 (1973), 71-863, Columbia Broadcasting System, Inc. v. Democratic National Committee

Docket Nº:No. 71-863
Citation:412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772
Party Name:Columbia Broadcasting System, Inc. v. Democratic National Committee
Case Date:May 29, 1973
Court:United States Supreme Court

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412 U.S. 94 (1973)

93 S.Ct. 2080, 36 L.Ed.2d 772

Columbia Broadcasting System, Inc.


Democratic National Committee

No. 71-863

United States Supreme Court

May 29, 1973

Argued October 16, 1972




The Democratic National Committee requested a declaratory ruling from the Federal Communications Commission (FCC) that the Communications Act or the First Amendment precluded a licensee from having a general policy of refusing to sell time to "responsible entities" to present their views on public issues. The Business Executives' Move for Vietnam Peace filed a complaint with the FCC, alleging that a broadcaster had violated the First Amendment by refusing to sell it time to broadcast spot announcements expressing the group's views on the Vietnam conflict, and that the station's coverage of anti-war views did not meet the requirements of the Fairness Doctrine. The FCC rejected the Fairness Doctrine challenge, and ruled that a broadcaster was not prohibited from having a policy of refusing to accept paid editorial advertisements by individuals and organizations like respondents. The Court of Appeals reversed, holding that "a flat ban on paid [93 S.Ct. 2083] public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted," and remanded the causes to the FCC to develop regulations governing which, and how many, editorial announcements would be aired.

Held: Neither the Communications Act nor the First Amendment requires broadcasters to accept paid editorial advertisements. Pp. 101-114; 121-170.

146 U.S.App.D.C. 181, 450 F.2d 642, reversed.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with respect to Parts I, II, and IV, finding that:

1. The basic criterion governing use of broadcast frequencies is the right of the public to be informed; the manner by which this

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interest is best served is dispositive of the respondents' statutory and First Amendment contentions. Pp. 101-114.

(a) In evaluating respondents' claims, great weight must be afforded the decisions of Congress and the experience of the FCC. Pp. 101-103.

(b) Congress has consistently rejected efforts to impose on broadcasters a "common carrier" right of access for all persons wishing to speak out on public issues. Instead, it reposed in the FCC regulatory authority by which the Fairness Doctrine was evolved to require that the broadcaster's coverage of important public issues must be adequate and must fairly reflect differing viewpoints; thus, no private individual or group has a right to command the use of broadcast facilities. Pp. 103-114.

2. The "public interest" standard of the Communications Act, which incorporates First Amendment principles, does not require broadcasters to accept editorial advertisements. Pp. 121-131.

(a) The FCC was justified in concluding that the public interest, in having access to the marketplace of "ideas and experiences," would not be served by ordering a right of access to advertising time. There is substantial risk that such a system would be monopolized by those who could and would pay the costs, that the effective operation of the Fairness Doctrine itself would be undermined, and that the public accountability which now rests with the broadcaster would be diluted. Pp. 121-125.

(b) The difficult problems involved in implementing an absolute right of access would inevitably implicate the FCC in a case-by-case determination of who should be heard and when, thus enlarging the involvement of the Government in broadcasting operations. The FCC could properly take into account the fact that listeners and viewers constitute a kind of "captive audience," and that the public interest requires that a substantial degree of journalistic discretion must remain with broadcasters. Pp. 126-130.

THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST, concluded, in Part III, that a broadcast licensee's refusal to accept a paid editorial advertisement does not constitute "governmental action" for First Amendment purposes. The Government is neither a "partner" to the action complained of nor engaged in a "symbiotic relationship" with the licensee. Pp. 114-121.

(a) Under the Communications Act, a broadcast licensee is vested with substantial journalistic discretion in deciding how to meet its statutory obligations as a "public trustee." Pp. 114-117.

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(b) The licensee's policy against accepting editorial advertising is compatible with the Communications Act and with the broadcaster's obligation to provide a balanced treatment of controversial questions. Pp. 118-121.

(c) The FCC has not fostered the licensee policy against accepting editorial advertisements; it has merely declined to command acceptance because the subject was a matter within the area of journalistic discretion. P. 118.

BURGER, C.J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I, II, and IV, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in which as to Parts I, II, and III STEWART and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in Parts I, II, and III, post, p. 132. WHITE, J., filed an opinion concurring in Parts I, II, and IV, post, p. 146. BLACKMUN, J., filed an opinion concurring in Parts I, II, and IV, in which POWELL, J., joined, post p. 147. DOUGLAS, J., filed an opinion concurring in the judgment, post, p. 148. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 170.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court (Parts I, II, and IV), together with an opinion (Part III), in which MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST joined.

We granted the writs of certiorari in these cases to consider whether a broadcast licensee's general policy of not selling advertising time to individuals or groups wishing to speak out on issues they consider important violates the Federal Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq., or the First Amendment.

In two orders announced the same day, the Federal Communications Commission ruled that a broadcaster who meets his public obligation to provide full and fair coverage of public issues is not required to accept editorial advertisements. Democratic National Committee, 25 F.C.C.2d 216; Business Executives' Move for Vietnam Peace, 25 F.C.C.2d 242. A divided Court of Appeals reversed the Commission, holding that a broadcaster's fixed policy of refusing editorial advertisements violates the First Amendment; the court remanded the cases to the Commission to develop procedures and guidelines for administering a First Amendment right of access. Business Executives' Move For Vietnam Peace v. FCC, 146 U.S.App.D.C. 181, 450 F.2d 642 (1971).

The complainants in these actions are the Democratic

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National Committee (DNC) and the Business Executives' Move for Vietnam Peace (BEM), a national organization of businessmen opposed to United States involvement in the Vietnam conflict. In January, 1970, BEM filed a complaint with the Commission charging that radio station WTOP in Washington, D.C., had refused to sell it time to broadcast a series of one-minute spot announcements expressing BEM views on Vietnam. WTOP, in common with many, but not all, broadcasters, followed a policy of refusing to sell time for spot announcements to individuals and groups who wished to expound their views on controversial issues. WTOP took the position that, since it presented full and fair coverage of important public questions, including the Vietnam conflict, it was justified in refusing to accept editorial advertisements. WTOP also submitted evidence showing that the station had aired the views of critics of our Vietnam policy on numerous occasions. BEM challenged the fairness of WTOP's coverage of criticism of that policy, but it presented no evidence in support of that claim.

Four months later, in May, 1970, DNC filed with the Commission a request for a declaratory ruling:

That, under the First Amendment to the Constitution and the Communications Act, a broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as the DNC, for the solicitation of funds and for comment on public issues.

DNC claimed that it intended to purchase time from radio and television stations and from the national networks in order to present the views of the Democratic Party, and to solicit funds. Unlike BEM, DNC did not object to the policies of any particular broadcaster, but claimed that its prior

experiences in this area make it

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clear that it will [93 S.Ct. 2085] encounter considerable difficulty -- if not total frustration of its efforts -- in carrying out its plans in the event the Commission should decline to issue a ruling as requested.

DNC cited Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), as establishing a limited constitutional right of access to the airwaves.

In two separate opinions, the Commission rejected respondents' claims that "responsible" individuals and groups have a right to purchase advertising time to comment on public issues without regard to whether the broadcaster has complied with the Fairness Doctrine. The Commission viewed the issue as one of major significance in administering the regulatory scheme relating to the electronic media, one going "to the heart of the system of broadcasting which has developed in this country. . . ." 25 F.C.C.2d at 221. After reviewing the legislative history of the Communications Act, the provisions of the Act itself, the Commission's decisions under the Act, and the difficult problems inherent in administering a right of access, the Commission rejected the demands of BEM and DNC.

The Commission...

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