Muir v. Alabama Educational Television Com'n

• Decision Date: 15 October 1982
• Docket Number: Nos. 80-7546,KUHT-TV,81-2011,s. 80-7546
• Citation: 688 F.2d 1033
• Parties: , 8 Media L. Rep. 2305 Donald E. MUIR, H. Jeff Buttram, and O. Navarro Faircloth, Plaintiffs-Appellants, v. ALABAMA EDUCATIONAL TELEVISION COMMISSION: Jacob Walker, etc., et al., Defendants-Appellees. Gertrude BARNSTONE and Harvey Malyn, Plaintiffs-Appellees, v. The UNIVERSITY OF HOUSTON,, et al., Defendants-Appellants. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1033

688 F.2d 1033

66 A.L.R.Fed. 585, 8 Media L. Rep. 2305

Donald E. MUIR, H. Jeff Buttram, and O. Navarro Faircloth, Plaintiffs-Appellants,

v.

ALABAMA EDUCATIONAL TELEVISION COMMISSION: Jacob Walker,

etc., et al., Defendants-Appellees.

Gertrude BARNSTONE and Harvey Malyn, Plaintiffs-Appellees, v. The UNIVERSITY OF HOUSTON, KUHT-TV, et al., Defendants-Appellants.

Nos. 80-7546, 81-2011.

United States Court of Appeals Fifth Circuit.^*

Oct. 15, 1982.

Edward Still, Susan Williams Reeves, Birmingham, Ala., Neil Bradley, Atlanta, Ga., for plaintiffs-appellants in No. 80-7546.

Leitman, Siegal & Payne, P.A., Eddie Leitman, Andrew P. Campbell, Birmingham, Ala., for defendants-appellees in No. 80-7546.

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

Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., Pat Bailey, Houston, Tex., for defendants-appellants in No. 81-2011.

Marjorie S. Reed, Gen. Counsel, Daniel M. Armstrong, Deputy Gen. Counsel, Linda L. Oliver, F.C.C., Washington, D.C., for amicus curiae F.C.C.

Theodore D. Frank, Washington, D.C., for amicus curiae Pub. Broadcasting Service.

David H. Berg & Associates, Philip Zelikow, David H. Berg, Houston, Tex., for plaintiffs-appellees in No. 81-2011.

Before BROWN, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, GARZA ^**, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK, WILLIAMS and GARWOOD, Circuit Judges. ^***

JAMES C. HILL, Circuit Judge:

I. Introduction

The two appeals before this Court on consolidated rehearing raise the important and novel question of whether individual viewers of public television stations, licensed by the Federal Communications Commission to state instrumentalities, have a First Amendment right to compel the licensees to broadcast a previously scheduled program which the licensees have decided to cancel. For the reasons stated below we find that the viewers do not have such a right.

Both cases before us concern the decisions of the licensees not to broadcast the program "Death of a Princess." In Muir v. Alabama Educational Television Commission, 656 F.2d 1012 (N.D. Ala. 1980), the District Court for the Northern District of Alabama denied the plaintiff viewers' motion for a preliminary injunction requiring the defendant licensee, Alabama Educational Television Commission (AETC), to broadcast the program. The district court found: (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." The court granted summary judgment for AETC.

In Barnstone v. University of Houston, 514 F.Supp. 670 (S.D. Tex. 1980), the District Court for the Southern District of Texas reached a different conclusion and granted the injunction requested by the plaintiff viewers and ordered the defendant licensee, University of Houston, to broadcast the program. The court held that KUHT-TV, the television station operated by the university, was a public forum and as such it could not deny access to speakers-here, the producers of "Death of a Princess"-who wished to be heard in the public forum, unless its reasons for doing so could withstand the rigorous scrutiny to which "prior restraints" are traditionally subjected.

On appeal a panel of this court affirmed the District Court's decision in Muir. ¹ The panel held that the plaintiffs had no constitutional right to compel the broadcast of "Death of a Princess," and that AETC's refusal to broadcast the program was a legitimate exercise of its statutory authority as a broadcast licensee and was protected by the First Amendment. In Barnstone another panel of this court found that the decision in Muir required that the panel reverse the judgment of the District Court for the Southern District of Texas and dissolve the injunctive relief which had been granted the plaintiffs. ²

We directed that both cases be consolidated and reheard en banc. We now affirm the judgment of the District Court for the Northern District of Alabama in Muir and reverse the judgment of the District Court for the Southern District of Texas in Barnstone.

II. Factual Background

The Muir case arose when AETC decided not to broadcast "Death of a Princess," which had been scheduled for broadcast on May 12, 1980 at 8:00 P.M. The program, one of thirteen in the series "World," is a dramatization of the investigation by the program's director, producer and co-author into the motivations and circumstances which were said to have led to the July 1977 execution for adultery of a Saudi Arabian princess and her commoner lover. ³

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 noncommercial, educational use." Ala. Code § 16-7-5. AETC operates a statewide network of nine noncommercial, educational television stations licensed by the Federal Communications Commission 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. 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. Only those licensees who contribute to a program's cost have a right to broadcast it. Those who contribute are free to broadcast or not to broadcast the program. ⁴

PBS's acquisition of the program series "World" was funded by 144 public television licensees, including AETC, through the SPC. During the week prior to the scheduled broadcast of "Death of a Princess" AETC received numerous communications from Alabama residents protesting the showing of the program. The protests expressed fear for the personal safety and well-being of Alabama citizens working in the Middle East if the program was shown. On May 10 AETC announced its decision not to broadcast the film as scheduled.

Appellants, Muir, Buttram and Faircloth, 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.

The Barnstone case arose in a factual context similar to that of Muir. The University of Houston is a co-educational institution of higher learning funded and operated by the State of Texas. See Tex. Educ. Code Ann. §§ 111.01 et seq. The university funds and operates KUHT-TV, a public television station licensed to the university by the F.C.C. As a member of the SPC, KUHT-TV contributed to the funding of the "World" program series. KUHT-TV scheduled "Death of a Princess" for broadcast on May 12, 1980 at 8:00 P.M.

On May 1, 1980 KUHT-TV announced that it had decided not to broadcast the program. This decision was made by Dr. Patrick J. Nicholson, University of Houston Vice-President for Public Information and University Relations. Dr. Nicholson had never previously made a programming decision such as this, though as the university official charged with the responsibility of operating KUHT-TV he had the power to do so. In a press release announcing the cancellation Dr. Nicholson gave the basis of his decision as "strong and understandable objections by the government of Saudi Arabia at a time when the mounting crisis in the Middle East, our long friendship with the Saudi government and U.S. national interests all point to the need to avoid exacerbating the situation." Dr. Nicholson also expressed a belief that the program was not balanced in a "responsible manner." ⁵

Upon learning of Dr. Nicholson's decision, on May 8, 1980, plaintiff Barnstone brought suit to require KUHT-TV to air "Death of a Princess." ⁶ Ms. Barnstone argued that as a subscriber to and regular viewer of KUHT-TV her First and Fourteenth Amendment rights were violated by the decision to cancel the program.

III. The First Amendment Does Not Prohibit Governmental Expression

The central argument advanced by the plaintiffs on appeal is that their First Amendment rights were violated when the defendants, as state actors, denied the plaintiffs an opportunity to view "Death of a Princess" on the public television stations operated by the defendants. We are thus called upon to determine whether the First Amendment rights of viewers impose limits on the programming discretion of public television stations licensed to state instrumentalities.

The First Amendment operates to protect private expression from infringement by government. Such protection applies both to the right to speak and the right to hear and is operative in a variety of contexts. ⁷ The amendment prohibits government from controlling or penalizing expression which has been singled out by government because of the expression's viewpoint. ⁸ The First Amendment also prohibits government from taking certain actions which impermissibly constrict the flow of information or ideas. ⁹

The plaintiffs emphasize that the protection of the First Amendment...