McGlynn v. New Jersey Public Broadcasting Authority

Decision Date19 October 1981
Citation439 A.2d 54,88 N.J. 112
CourtNew Jersey Supreme Court
Parties, 50 Rad. Reg. 2d (P & F) 867, 27 A.L.R.4th 322, 7 Media L. Rep. 2446 Richard B. McGLYNN, Individually and the Committee to Elect Richard McGlynn, Governor, Respondents, v. NEW JERSEY PUBLIC BROADCASTING AUTHORITY and New Jersey Nightly News, Appellants.

Barbara A. Harned, Deputy Atty. Gen., for appellants (James R. Zazzali, Atty. Gen., Erminie L. Conley, Asst. Atty. Gen., of counsel).

Floyd Abrams, New York City, a member of the New York Bar, for amicus curiae WNET/Thirteen (Riker, Danzig, Scherer & Hyland, Morristown, attorneys; Floyd Abrams, Gregg Young, New York City, Charles S. Warren, Elizabeth, Pa., and Sandra S. Baron, New York City, members of the New York Bar, of counsel; Frank J. Miele, Morristown, on the brief).

Richard B. McGlynn, Newark, pro se (Stryker, Tams & Dill, Newark, attorneys).

B. Theodore Bozonelis, Chatham, for respondent Committee to Elect Richard McGlynn Governor (Sweeney, Bozonelis, Staehle & Woodward, Chatham, attorneys).

Amos Gern, West Orange, submitted a brief on behalf of amici curiae The Corp. for Public Broadcasting, The Nat. Ass'n of Broadcasters, The Nat. Ass'n of Public Television Stations, National Public Radio, The Public Broadcasting Service and The Reporters Committee for Freedom of the Press (Gern, Stiber, Dunetz, Davison & Weinstein, West Orange, attorneys; Paul A. Mutino, Thomas L. Root, Erwin G. Krasnow, Theodore D. Frank, Pamela Stanton Baron, Janice F. Hill, Eric H. Smith, Nancy Hendry, Jack C. Landau and Sharon P. Mahoney, Washington, D. C., members of the District of Columbia Bar, of counsel, and Stephen E. Nevas, Washington, D. C., member of the Massachusetts Bar, of counsel).

William W. Robertson, U. S. Atty., Newark, and Bette Uhrmacher, Asst. U. S. Atty., Washington, D. C., submitted a brief on behalf of amicus curiae F.C.C. (William W. Robertson, attorney; Stephen A. Sharp, Washington, D. C., a member of the District of Columbia Bar, and Daniel M. Armstrong, Washington, D. C., and Lisa B. Margolis, Brooklyn, N. Y., members of the New York Bar, of counsel).

The opinion of the Court was delivered by

PASHMAN, J.

This is a case of major importance. It transcends the claims of the individual litigants who were political candidates in the recently concluded gubernatorial primary election. The overriding issue concerns the relationship between the journalistic freedom which has been granted the New Jersey Broadcasting Authority and its duty of fairness in the coverage of gubernatorial campaigns.

We now hold that the Authority has been given a wide range of journalistic freedom under Federal and State law in determining the content and scope of television broadcast coverage of gubernatorial election campaigns. This freedom has been given by the Legislature to the Authority to effectuate the significant public policy goal of providing the people of New Jersey with needed coverage of the subjects and events which most directly affect them. The Authority, though a governmental instrumentality, is intended by the Legislature to exercise its discretion with the independence and freedom that characterize a free and vibrant press. At the same time, its important responsibilities are to be discharged within a framework of fairness and impartiality comporting generally with prevailing federal regulatory philosophy.

In so holding, we strongly endorse the fundamental commitment which the Legislature has made for the people of this State in creating a public broadcasting station to carry out these important goals. We fully anticipate that the judiciary will have no direct or active role in this arena. This is as it should be. However, if any controversy should come before the courts, the Judiciary will unhesitatingly honor the commitment of the Legislature to a free and fair public broadcasting authority.

The determination which we reach today results from the reargument of this appeal. We have had the opportunity to consider the implications of the case in greater depth than was possible when it first reached us on an emergent basis. This reconsideration has brought the entire court to a different conclusion than was earlier held. Accordingly, we reverse our prior order.

We need to briefly reiterate the course which this appeal has taken. Richard McGlynn, later joined by Jack Rafferty, candidates for the Republican nomination for governor, challenged the refusal of the New Jersey Public Broadcasting Authority to include them in a forum on five important issues (Forum) to be telecast by the Authority on its "A Closer Look" program during the final week of the 1981 primary campaign. When the case reached the Appellate Division, two of the five scheduled segments had already been broadcast. All the segments included statements on the issues by four of the eight Republican candidates. McGlynn alleged that his exclusion from the program violated N.J.S.A. 19:44A-39 (Section 14 of the 1974 "Act to amend and supplement 'The New Jersey Campaign Contributions and Expenditures Reporting Act' "), N.J.S.A. 48:23-7(h) (Section 7 of the "New Jersey Public Broadcasting Authority Act"), 47 U.S.C. § 315 and the First and Fourteenth Amendments to the United States Constitution. Upon plaintiffs' emergent application, the Appellate Division ordered that all excluded candidates be included in any further showings of the Forum. The court further directed that statements by the excluded candidates on the issues already discussed be broadcast at approximately the same hour that the originals were shown. We heard the Authority's appeal on an emergency basis and affirmed the Appellate Division's order. 1 On appeal, the Honorable William J. Brennan, Jr., Associate Justice of the United States Supreme Court, refused to issue a stay.

After the primary election, we granted the Authority's petition for rehearing because the public interest would be served by a clarification of our earlier summary ruling.

I

The New Jersey Public Broadcasting Authority (Authority), an instrumentality of the State of New Jersey, was established in 1968 by the New Jersey Public Broadcasting Authority Act, N.J.S.A. 48:23-1 et seq. The Authority owns and operates WNJS, WNJM, WNJB and WNJT, four educational television stations which constitute the New Jersey public television network. All four stations are licensed by the Federal Communications Commission (FCC).

Plaintiffs Richard McGlynn and Jack Rafferty were among the eight candidates for the Republic nomination for governor of New Jersey. Ann Klein 2 was one of thirteen candidates for the Democratic nomination. The primary election was held on June 2, 1981. 3 During the primary campaign, the Authority provided extensive television coverage as required by the New Jersey Campaign Contributions and Expenditure Reporting Act, N.J.S.A. 19:44A-39.

As a result of the inadequacy of television coverage of New Jersey gubernatorial races by the private New York and Philadelphia stations, see infra at 10-12, significant responsibility for keeping the New Jersey viewing public informed about the candidates and issues falls upon New Jersey public television. The problems of election coverage by the New York and Philadelphia stations were exacerbated in this case by the presence of 21 candidates in the race. The Authority fulfilled its responsibility in several ways. First, it aired a series of ten-minute profiles in which each candidate received the opportunity to discuss the issues. Each profile was shown twice during May. Second, "McLaughlin's Beat," a regularly scheduled weekly interview program, broadcast interviews with the candidates in groups of two or three from March 5 through May 21. Third, the Authority covered two League of Women Voters forums, one for each party, to which all candidates were invited. Finally, the various candidates appeared on "New Jersey Nightly News" (Nightly News). There is no evidence of how often each candidate appeared on the evening news. However, "A Closer Look," a ten-minute segment of the Nightly News which generally provides in-depth analysis of a single issue or event, broadcast profiles of each candidate in mid-April.

As the campaign neared its conclusion, Herbert Bloom, Executive Producer of Nightly News, decided to devote "A Closer Look" to what he described in an affidavit to be "five very significant issues in the campaign." All 21 candidates had been asked to comment on these issues, and their responses were taped approximately four weeks before they were to be shown. Bloom explained that "there was not sufficient time remaining before the primary election * * * to cover all 21 candidates." He therefore used his "professional news judgment ... in consultation with (his) senior staff," to select a group of leading candidates whose views would be broadcast. Ten of the 21 candidates were chosen for this final series of programs.

Among the candidates excluded from this forum were McGlynn and Rafferty. On May 25, 1981, the four New Jersey public television stations and WNET/Thirteen announced their intention to air the series of discussions on "A Closer Look." The following day, McGlynn and the Committee to Elect Richard McGlynn Governor filed a complaint in the Superior Court, Chancery Division. The complaint alleged that the Authority had refused McGlynn's request to be included. McGlynn alleged that the exclusion violated his rights under the Federal Communications Act, the New Jersey Campaign Expenditures and Reporting Act, the Public Broadcasting Authority Act, and the First and Fourteenth Amendments of the United States Constitution.

The Chancery Division found the complaint to be an appeal from an administrative determination by the Authority and so transferred the case to the Appellate Division on May 26. At this point, Rafferty intervened as a plaintiff. The Appellate Division issued its Order on ...

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