Say cheese: the constitutionality of state-mandated free airtime on public broadcasting stations in Wisconsin.

• Author: Cotlar, Andrew D.

1. INTRODUCTION

   On July 26, 2002, the State of Wisconsin, as part of a comprehensive budget bill and campaign finance reform package, required the State Board of Elections to promulgate rules that require all public television stations (including cable access channels) to provide a minimum amount of free airtime to state candidates for elective office and to offer the same amount of time to all state candidates in each race. (1) On the same day it was enacted, this law was challenged in federal court on the basis that it was preempted by federal law and violated the First Amendment free speech rights of public broadcasters. (2) On December 11, 2002, the U.S. District Court for the Western District of Wisconsin (Judge Crabbe presiding) rejected the plaintiff's motion for judgment on the pleadings and ruled that the state law was not preempted and that the First Amendment issues were not yet ripe for review. (3)

   However, this decision has the potential to render both substantial harm to Wisconsin's public television stations and to create a harmful precedent for other state chartered public broadcasters throughout the nation. An examination of the state's Web site reveals that Wisconsin's law could require public television stations in Wisconsin to give free air time for multiple candidates in over 400 elective races, including thirty-three state senate districts, ninety-nine state assembly districts, six statewide executive races, and races for the entire judicial branch. Based on information from the Wisconsin State Board of Elections Web site, it was estimated that for the 2002 election year alone, there were 202 races for elective office with 295 candidates on the ballots. (4) The effect of the law would therefore be quite extensive and arguably quite debilitating for a centrally programmed statewide public broadcasting system.

   Moreover, this ruling presents a number of issues of national importance that reach beyond the effect of Wisconsin's law on Wisconsin public television stations. Two-thirds of the public television stations in the United States, operating in twenty-nine states, are managed by statewide public broadcasting systems like Wisconsin Public Television. (5) These systems are typically run by state-chartered but structurally independent commissions, authorities, boards, nonprofit corporations, or universities and provide a valuable and independent noncommercial, educational voice in those states, consistent with federal law, state charters and industry standards. (6) However, despite this structural independence, the temptation of states to dictate the programming choices of these broadcasters is great. For instance, three years ago, the State of Idaho imposed content restrictions on its public television system after the system aired a series of programs that were deemed objectionable, restrictions that have since been abandoned. (7) Prior to that, the State of Mississippi forbade its statewide public broadcasting system from airing programming by an organization that advocated healthy approaches to sexuality, a law that is still operative today. (8) In addition, New Jersey has required its public broadcasters to pay special attention to that state's gubernatorial race and has required fairness and equity in political coverage of state races. (9) Moreover, the State of Rhode Island has required that its public television station must provide free airtime to state candidates who qualify for and accept state funding. (10)

   The district court's decision raises several questions of importance for public broadcasting throughout the nation. First, to what extent is the state regulation of public broadcasting preempted by federal law, and under what circumstances is there room for concurrent state regulation? Second, to what extent does state regulation like the Wisconsin law unacceptably interfere with the First Amendment free speech rights of public broadcasters? Both questions require a careful consideration of the interaction between federal and state law governing public broadcasting and the extent to which state-chartered public broadcasters are created to exercise editorial independence.

   This article argues that the Wisconsin law is preempted for two reasons. First, federal law specifically exempts public broadcasters from the kinds of political access requirements the Wisconsin law now requires. (11) Second, the state law interferes with the very purpose and mission of public broadcasting, established through federal policy for over thirty years: to provide a noncommercial educational broadcast service consistent with the highest degree of editorial independence. This mission is no less compelling where a public broadcaster is chartered or funded by a state.

   This article also argues that the Wisconsin law unconstitutionally restricts the free speech rights of public broadcasters, including state-chartered public broadcasters. While some courts have mistakenly implied that state-chartered public broadcasters are simply extensions of the governments that create and fund them, and thus subject to content control because the state may decide when and how it wishes to speak, (12) the U.S. Supreme Court has recently advanced a different theory. In Legal Services Corporation v. Velazquez, the Court held that where a medium of expression is founded upon a principle of editorial independence, the government cannot act to distort the medium's usual functioning by exerting pressure through funding mechanisms. (13) Laws like that in Wisconsin distort the medium's usual function of editorial independence and therefore should be struck down as unconstitutional.

2. FEDERAL LAW AND REGULATION COMPREHENSIVELY REGULATES THE POLITICAL ACCESS REQUIREMENTS FOR PUBLIC BROADCASTING THROUGH A SPECIAL EXEMPTION

   Congress has enacted, and the Federal Communications Commission ("FCC" or "Commission") administers, a comprehensive regulatory regime overseeing all the varieties of broadcasting in the United States. Thus, nearly every entity that wishes to use the radio frequency spectrum in the United States must first apply for a license from the FCC. The Commission administers extensive rules concerning transmission standards, interference protection and, to a limited degree, the public interest obligations of broadcasters, (14) while striving to maintain the greatest degree of editorial independence for broadcast licensees consistent with the First Amendment rights of both speakers and the public at large. (15)

   Two federal laws govern the appearance of political candidates on all broadcast stations. The first is Section 312(a)(7) of the Communications Act of 1934 ("Act"), as amended, which gives certain federal candidates a right to purchase airtime on commercial stations. (16) The second is Section 315(a) of the Act, which requires broadcasters to give a candidate an opportunity to appear in limited cases where his opponent has appeared on air in nonexempt circumstances. (17)

   Section 312(a)(7) currently states that the Commission may revoke any station license or construction permit

   for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy. (18) Thus, where a legally qualified candidate for federal elective office presents a reasonable request that his or her promotional programming be aired, a commercial broadcast station cannot refuse to sell, or otherwise provide, the candidate a reasonable amount of time. (19) In fact, when commercial stations sell time to certain candidates for public office they are required to charge such candidates the lowest unit rate during the last forty-five days of a primary campaign and during the last sixty days of a general election campaign. (20)

   By way of contrast, federal law strictly forbids noncommercial stations

   from selling time for programming that supports or opposes a candidate for public office. (21) Prior to December 21, 2000, the exemption for noncommercial educational broadcast stations at Section 312(a)(7) did not exist. Therefore, prior to the revisions in 2000, noncommercial stations were required to offer some reasonable amount of free airtime to federal candidates on request. (22)

   Taking advantage of this little-known requirement, Terry Lierman, a Democrat running against Republican Constance Morella for a suburban Maryland congressional seat in 2000, requested and received thirty seconds of free, unedited airtime to promote his campaign on noncommercial radio station WAMU in Washington, D.C. (23) WAMU also had to accept similar requests from Marc Rossi, an independent seeking to unseat Republican Rep. Frank Wolf in northern Virginia's 10th Congressional District. (24) The airing of these spots provoked outrage from key Congressional Republicans, including Rep. W.J. (Billy) Tauzin, then Chairman of the House Subcommittee on Telecommunications and the Internet, who rose to make an impassioned statement on the floor of the House on October 25, 2000, objecting to the apparent loophole in the law:

   Americans were shocked this morning to realize that today public radio is beginning to air political advertisements.... The Democrat candidates are apparently taking advantage of tax-free paid support to public radio by placing their ads free of charge on public radio. That ought to end today. If it does not end today, I will call upon every candidate in political elections to bring their ads to public radio and next year we will think about taking away their mandate entirely. (25) On December 21, 2000, Congress amended Section 312(a)(7) to exempt public broadcasting stations by inserting the phrase, "other than a non-commercial educational broadcast station." (26) Consequently, noncommercial stations are now not required to...