Freedom by design: objective analysis and the constitutional status of public broadcasting.

Author:Phillips, Jonathan M.
 
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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 and conclusion.

  1. PUBLIC BROADCASTING IN THE UNITED STATES: HISTORY AND OVERVIEW

    1. The Structure of the Public Broadcasting Institution

      The American system of public broadcasting operates at three interconnected levels. (10) First, individual noncommercial stations make up the local "bottom" level. These stations receive their broadcast licenses from the Federal Communications Commission (FCC) and are subject to the same regulations as commercial broadcasters, though they receive some special treatment in the form of mandated carriage on cable and satellite distribution systems. (11) These stations are often licensed to universities and community organizations but are also held by executive agencies within the state governments. (12)

      Second, at the national level, most of these local noncommercial licensees are members of the Public Broadcasting System (PBS), an ostensibly private, nonprofit corporation. (13) PBS's primary mission is acquiring programming for distribution to its member broadcasters and providing fundraising, promotional, and logistical support. (14) PBS makes its own decisions about what programming will be made available; (15) the decision of whether to broadcast that content, however, is ultimately made by each individual station, based on its own needs. (16) In addition to the programming they receive from PBS, local stations can create their own programming as well. (17)

      Finally, the Corporation for Public Broadcasting (CPB) is, first and foremost, the funding arm of the public broadcasting institution. (18) Its primary mission is to provide support for local noncommercial stations by financing the development of quality programming and providing logistical and technological support. (19) To that end, the CPB funds station initiatives aimed at determining how noncommercial stations can better serve their local communities and ensures that the programming it finances also serves community needs. (20) In supporting the development of content, the CPB seeks to further three particular interests: (1) providing children's programming with a high educational value, (2) serving "underserved audiences," and (3) contributing to a better-informed citizenry at the national and local levels. (21) In addition to financial support, the CPB engages in research endeavors to help guide ongoing federal investment in public broadcasting.

    2. The Public Broadcasting Act of 1967: Constructing a National Institution

      With the creation of a regime for federal support of noncommercial broadcasting, Congress intended to maximize the editorial autonomy of individual stations and eliminate the possibility that government-particularly ruling majority parties--could influence content decisions, directly or indirectly. At the time of the enactment of the Public Broadcasting Act of 1967, the role that this noncommercial regime was to play in society was not clearly defined, though the possibilities abounded. As such, legislators offered numerous purposes for noncommercial broadcasting without clearly adopting one or linking them together in some way. Rather, the Act focused primarily on the structural creation of an autonomous entity in the CPB, perhaps suggesting that it is for the broadcasters themselves to best determine their social function by how they choose to operate.

      1. Defining the Role of the Public Broadcaster

        Myriad justifications for public service broadcasting orbit the universe of media theory, but they all largely revolve around the idea of market failure. Put simply, market pressures drive private, commercial broadcasters to underproduce certain types of content that are thought to be valuable for society. (22) With a system of noncommercial broadcasting, the government can address this problem by removing the pressures of an advertising-driven market and by generally prescribing the type of content to be provided.

        Beyond that, however, how the specific social role or function of the public broadcaster should be defined appears open for debate. Communications scholar Monroe Price, for instance, has offered four possible definitions for public television: (1) as a "Lifeline," which posits that noncommercial television assumes the "residue" of unserved public interest obligations from commercial broadcasting; (23) (2) "National Identity," under which the broadcast system participates in the creation of a nation-wide cultural identity; (3) "Minority Satisfaction," under which the broadcaster provides a voice for underserved minorities so that they may feel included in society; and (4) "Public Sphere," which sees the function of noncommercial broadcasting as an "instrument of civil society" to facilitate deliberative political debate. (24) Noncommercial television may also simply be an effective way to ensure that the public has access to programming that takes creative risks and seeks to achieve a higher level of quality and inspiration. (25)

      2. Building an Autonomous Institution: Passage of the 1967 Act

        With the passage of the Public Broadcasting Act of 1967 (1967 Act), (26) which created the Corporation for Public Broadcasting, Congress sought to correct the "market failure" of commercial broadcasting and, in so doing, provided at least some definition to the role that noncommercial broadcasters should play. (27) Though local noncommercial stations had existed--and received support from the federal government (28)--for years, by the late 1960s it appeared that these stations' programming efforts were impaired by a lack of funding. (29) In response to this problem, the Carnegie Corporation sponsored a Congress-supported commission to investigate the status of noncommercial broadcasting nationwide. (30) In light of its findings that financially healthy local stations would be essential to expanded noncommercial broadcasting, the Carnegie Commission called for federal funding to supplement existing state and private financing mechanisms. (31) The Carnegie report also coined the term "public television," not to distinguish it as the converse to private commercial broadcasters, but to embody a wide range of...

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