Muir v. Alabama Educational Television Commission

• Decision Date: 21 September 1981
• Docket Number: No. 80-7546,80-7546
• Citation: Muir v. Alabama Educational Television Commission, 656 F.2d 1012 (5th Cir. 1981)
• Parties: 7 Media L. Rep. 1933 Donald E. MUIR, H. Jeff Buttram, and O. Navarro Faircloth, Plaintiffs- Appellants, v. ALABAMA EDUCATIONAL TELEVISION COMMISSION; Jacob Walker, etc., et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1012

656 F.2d 1012

7 Media L. Rep. 1933

Donald E. MUIR, H. Jeff Buttram, and O. Navarro Faircloth Plaintiffs- Appellants, v. ALABAMA EDUCATIONAL TELEVISION COMMISSION; Jacob Walker etc., et al., Defendants-Appellees.

No. 80-7546.

United States Court of Appeals, Fifth Circuit.

Unit B

Sept. 21, 1981.

Rehearing En Banc Granted Nov. 16, 1981. See 662 F.2d 1110.

Edward Still, Birmingham, Ala., for plaintiffs-appellants.

Leitman, Siegal & Payne, P.A., Eddie Leitman, Andrew P. Campbell, Birmingham, Ala., for defendants-appellees.

Theodore D. Frank, Washington, D.C., for amicus Public Broadcasting Service.

Appeal from the United States District Court for the Northern District of Alabama.

Before MARKEY ^*, Chief Judge, HILL and THOMAS A. CLARK, Circuit Judges.

MARKEY, Chief Judge:

Appeal from a judgment of the United States District Court for the Northern District of Alabama refusing to order Alabama Educational Television Commission (AETC) to broadcast the program "Death of a Princess" and granting summary judgment for AETC. We affirm.

BACKGROUND

AETC decided not to broadcast "Death of a Princess", scheduled for broadcast in Alabama on May 12, 1980 at 8:00 p. m. The film, one of thirteen in the series "World," is a drama/documentary of events said to have surrounded the July 1977 public execution for adultery of a Saudi Arabian princess and her lover.

AETC, organized under Ala.Code § 16-7-1, is responsible for "making the benefits of educational television available to and promoting its use by inhabitants of Alabama" and has "the duty of controlling and supervising the use of channels reserved by the federal communications commission to Alabama for non-commercial, educational use". Ala.Code § 16-7-5. ¹ To this end, AETC operates a statewide network of nine non-commercial, educational television stations licensed by the Federal Communications Commission (FCC) under the Communications Act of 1934 (47 U.S.C. §§ 151, et seq.). AETC is funded through state legislative appropriations from the Special Education Trust Fund, matching federal grants through the Corporation for Public Broadcasting (CPB), and private contributions.

AETC is a member of the Public Broadcasting Service (PBS), a non-profit corporation distributing public, non-commercial television programs to its members by satellite. ² AETC is also a member of the Station Program Cooperative (SPC), a program funding and acquisition mechanism operated by PBS. Membership in SPC entitles licensees to participate in the selection and funding of national public television programs distributed by PBS. Respecting each such program, member licensees indicate whether they will contribute to the costs of purchasing the broadcast rights. Those refusing to contribute to a program's cost are precluded from broadcasting that program. Those agreeing to contribute are free to broadcast or not to broadcast the program. PBS's "Station Users Agreement", reposing in licensees the absolute right to select programs they will broadcast and to determine when they will broadcast them, accords with an FCC requirement that its licensees exercise exclusive control over selection of material for broadcast.

PBS's acquisition of "World" was funded by 144 public television licensees, including AETC, through the SPC. During the week before its May 12 scheduled broadcast, the showing of "Death of a Princess" was protested by Alabama residents citing fear for the personal safety and well-being of Alabama citizens working in the Middle East. On May 10, AETC announced its decision not to broadcast the film as scheduled.

Appellants, residents of Alabama who had planned to watch "Death of a Princess," brought this action on May 12, 1980 under the First and Fourteenth Amendments and 42 U.S.C. § 1983, seeking to compel AETC to broadcast the film and preliminary and permanent injunctions against AETC's making "political" decisions on programming.

In a well-reasoned opinion, Judge J. Foy Guin, Jr. explained: (1) that the likelihood of success on the merits criterion for an injunction had not been shown; (2) that the First Amendment protects the right of broadcasters, private and public, to make programming decisions free of interference; and (3) that viewers have no First Amendment right of access to the Alabama educational television network sufficient to compel the showing of "Death of a Princess." Accordingly, Judge Guin denied the motion for a mandatory order, denied a preliminary injunction, and granted summary judgment for AETC.

Issue

Whether AETC's decision not to broadcast "Death of a Princess" violated Appellants' constitutional rights under the First and Fourteenth Amendments. ³

OPINION

Worthy but warring concepts are from the outset endemic when government acts not solely to govern but to fund and foster functions paralleling those conducted by its private citizens. ⁴ If, for example, the umpire sponsors a team, can the game's rules be applied equally to private and sponsored teams? Put another way, how may constitutional provisions designed to control the acts of those operating a government be applied to the acts of those operating a government sponsored television station? At the federal level, the pragmatic answer has been the adoption of legal and operational mechanisms limiting the federal government to a funding function and divorcing it from control over program content. ⁵ Those mechanisms have thus far permitted identical treatment under the Constitution of private and public broadcasters. ⁶

In a very real sense, the presentation of competing first amendment interests here reflects the influence of emphasis. AETC and Amicus PBS emphasize the First Amendment's protection of a free press, of which the lifeblood is editorial freedom. Appellants emphasize the First Amendment's protection of free speech and their derivative right to hear. ⁷ The former, except in fairness doctrine cases, has to date prevailed with respect to all broadcasters. Whether it should prevail with respect to AETC in this case may be judged on whether the function challenged here was a governmental function.

Public and private broadcasters may be safely treated identically, in constitutional jurisprudence, if their functions under review be essentially identical. A focus on function, rather than on ownership or funding source, leaves room for both public and private broadcasters to operate. At the same time, a functional analysis would permit court enforcement of First Amendment protections in a case in which mere government ownership or funding had been metamorphosed into actual government content control.

The First Amendment is not a fetish. Revered it must be, but continued reverence requires that its applications be intelligible. A criterion for consistency is the recognition that the function to which the Amendment is applied may influence the result reached. If, for example, the function be government censorship of a newspaper, the Amendment forbids it. If the function be, as Mr. Justice Holmes put it, a false cry of "Fire" in a crowded theatre, it is not protected. At the same time, a myriad of functions speaking, book publishing, theatre presentations, pamphleteering, and others enjoy a proper presumption of protection under the First Amendment.

In the present case, the challenged function of AETC, in deciding to cancel "Death of a Princess", is not unlike that routinely performed by private broadcasters. Because Appellants concede that function to private broadcasters, a functional analysis would appear to end the controversy at that point. Appellants' arguments, however, amount to a vigorous value-versus-value dichotomy deserving of response. Pointing to the presence of a state government as sponsor and partial source of funds for AETC, Appellants paint AETC as "government related" and its programming choices as "governmental action" and "governmental censorship".

Editorial Freedom v. Censorship

Among the conflict of concepts here is that between an asserted right in Appellants as potential viewers to compel broadcast of "Death of a Princess" and an editorial freedom of AETC to independently select the programs it will broadcast. Solely because it is "owned" by a government, Appellants say AETC is bound by First Amendment restrictions against governmental censorship. The application of constitutional principles cannot, however, be controlled by the bare and barren fact that government plays some role.

Recognizing a unique role played by broadcast licensees in our jurisprudence, the Supreme Court has held that regulation of the broadcast media, because of its inherent physical limitations, presents "an unusual order of First Amendment values," Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 101, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973), (hereafter CBS ). See also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Broadcast frequencies are a scarce resource which must be parceled among applicants. Because all who desire to communicate cannot be satisfactorily accommodated, "it is idle to posit an unabridgable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." Red Lion Broadcasting Co. v. FCC, supra at 388, 89 S.Ct. at 1806. Delicate indeed is the process of balancing First Amendment interests while determining what best serves the public's right to be informed, a process which must "necessarily be undertaken within the framework of the regulatory scheme (the Communications Act)." CBS, supra 412 U.S. at 102, 93 S.Ct. at 2086.

Under the Communications Act, both public and private broadcasters are licensed by the FCC to serve the public interest as public trustees. As such, each licensee has an obligation to perform a programming function responsive to the needs and interests of the community it serves and to insure that the public is presented suitable...