Extract
Freedom by design: objective analysis and the constitutional status of public broadcasting.
INTRODUCTION
Since the 1980s, the institution of public broadcasting has been subject to continuing criticism, particularly by those who are concerned that it is ideologically biased. (1) In 2005, public broadcasting was in the limelight yet again when it was discovered that the Chairman of the Corporation for Public Broadcasting (CPB), Kenneth Tomlinson, secretly hired a consultant to monitor PBS programming for partisan biases. (2) In the name of "balance," (3) Tomlinson's project examined the programs of Bill Moyers, Tavis Smiley, and Diane Reihm, and rated their guests according to whether they were liberal or conservative. (4) Related (and perhaps more obviously alarming) categories asked whether program guests were pro- or anti-administration, as well as "pro-Bush versus anti-Bush." (5) After a report on the impropriety of Tomlinson's activities by the CPB's Inspector General, Tomlinson resigned from his post. (6) Public concerns have not abated with his departure, though. While some see more political pressure on the horizon because of the Republican-dominated CPB board, (7) others may simply note these are difficulties inherent in the institution of public broadcasting, regardless of its partisan makeup. (8) Regardless of the argument, however, it is clear that the interplay between governance and programming content choices raises salient First Amendment issues of editorial autonomy and independence from government influence. (9) While the incident leading to Tomlinson's departure may not itself present a justiciable issue, it points to a significant dilemma related to the structure of public broadcasting. That is, the system is supposed to be independent, yet nearly half of the state public broadcasters are run by the government, and the President appoints the leadership of the CPB. As a result, the possibility appears to remain that ruling political interests could exercise significant influence on the system by regulating speech directly, or indirectly through funding conditions. In developing noncommercial broadcasting institutions, however, Congress clearly intended to insulate programming decisions from such pressures, so that individual broadcasters could freely pursue the variety of social roles for public broadcasting. This Comment argues that the Supreme Court's traditional First Amendment analysis cannot provide a solution to this potential contradiction. By embracing an analysis of speech restrictions that focuses on the objective characteristics of the institution in which the speech occurs, however, the Court can preserve the autonomy of public broadcasters and make protection of speech more robust under its precedents. Furthermore, when applied at the state and federal levels of public broadcasting, such an approach may lead to the conclusion that programming decisions made to advance partisan interests are presumptively invalid under the First Amendment. Part I of this Comment provides a brief overview of the social roles and functions of the public broadcasting system in the United States and considers how that system came into existence. Part II explains why the Supreme Court's traditional First Amendment jurisprudence is poorly equipped to address issues that might exist in reality or in theory. Taking off from the Court's opinions in FCC v. League of Women Voters of California and Arkansas Education Television Commission v. Forbes, Part III then proposes a First Amendment approach that considers the objective characteristics of how an institution is organized to determine how the Court's precedents should apply to it. Part IV then applies this approach to the U.S. public broadcasting system at both the federal and state levels, examining the Corporation for Public Broadcasting and New Jersey public television as case studies. Finally, Part V offers a brief summary ...See the full content of this document
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