Alito as government lawyer: ’84 broadcast-regulation case

Thursday, November 3, 2005

This article is part of an online symposium on the First Amendment Center Online concerning Judge Samuel Alito’s First Amendment jurisprudence.

Can the government regulate the expression of those it funds?

That question is at the heart of one important First Amendment case now before the Supreme Court, Rumsfeld v. Forum for Academic & Institutional Rights. There the issue is whether government-funded law schools can lose their funds if they deny access to military recruiters. In another case, recently filed in the District Court for the District of Columbia, the issue is whether eligibility for U.S. global HIV/AIDS funding for U.S. organizations can be conditioned on their willingness to adopt the government’s anti-prostitution position (DKT International, Inc. v. United States Agency for International Development).

Years ago, this basic issue confronted a then-34-year-old government lawyer in FCC v. League of Women Voters (1984), an important broadcast-regulation case. That lawyer was Samuel A. Alito Jr., President Bush’s most recent nominee to the Supreme Court.

While not conclusive, Alito’s statements in the case are instructive insofar as they reveal his arguments on behalf of the Reagan administration concerning two weighty issues: (1) the law concerning what is known as the doctrine of “unconstitutional conditions,” and (2) the law bearing on broadcast regulation.

Attempt to regulate broadcast editorials
FCC v. League of Women Voters involved a challenge to a portion of the Public Broadcasting Act of 1967 that banned any “editorializing” by a noncommercial broadcasting station that had received funds from the Corporation for Public Broadcasting. The statute defined “editorializing” as a statement by the broadcaster representing “the official standpoint of station management.”

The case began on April 30, 1979, when Pacifica Co., the nonprofit corporate owner of several public broadcast stations, along with the League of Women Voters of California and Rep. Henry Waxman (D-Calif.), challenged the act in the U.S. District Court for the Central District of California. The Department of Justice immediately moved for a dismissal, which the district court subsequently granted. Then in a curious turn of events, the Department of Justice reversed its position about dismissal at the same time when the petitioners were appealing the dismissal. The petitioners then won their case in the district court, after which it was appealed directly to the Supreme Court.

When the matter reached the Court, several issues presented themselves for its consideration. The most notable of them was whether the federal government’s subsidy of public broadcasters gave it the right to ban a certain type of expression under Congress’ Article I spending powers.

At the time, the Court had generally recognized that Congress could tie certain conditions to awards of federal funds. (see Oklahoma v. Civil Service Commission, 1947) Even so, in Speiser v. Randall (1958) the Court had also recognized that Congress could not compel the sacrifice of a constitutional right in exchange for a government benefit.

The Public Broadcasting Act’s ban on editorializing also appeared to be a content-based restriction on the free-speech rights of all noncommercial broadcasting stations. At the time, this type of restriction seemed to trigger “strict scrutiny” analysis by the Court and would likely result in the statute’s being struck down under the First Amendment. However, since the Court’s decision in Red Lion Broadcasting v. FCC (1969), Congress had been given considerable leeway when it came to regulating the broadcast spectrum. Would such deference lead the Court to apply a less-rigorous “intermediate standard” and allow this otherwise facially unconstitutional restriction to stand?

Lastly, the Court had to consider the nature of the First Amendment interest in the case. Was the case about government suppression of unfavorable viewpoints, as the League of Women Voters and its allies argued? Or was this a case of trying to keep the public’s airwaves largely free of government-funded propaganda? Which rights were paramount?

Oral arguments: Alito for the government
Jan. 16, 1984: Immediately following the reading of the case name and docket number, the special assistant to the solicitor general rose to give his oral argument on behalf of the Federal Communications Commission. However, before he rendered his substantive arguments in FCC v. League of Women Voters, Alito engaged in a brief dialogue with Justice Sandra Day O’Connor concerning certain jurisdictional questions. After replying to the justice’s inquiries, Alito moved to the merits of his case.

Electronic vs. print media
The government argued that the Corporation for Public Broadcasting’s subsidizing of Pacifica empowered it to determine the types of messages it could propound. Before Alito could launch into his key arguments, Justice O’Connor again engaged him in a discussion concerning the nature of subsidies the government gave to other communications outlets.

Justice O’Connor: “Mr. Alito, would you make the same type of argument for a newspaper if it received some sort of public subsidy?”

Alito: “The federal government does not subsidize the print media in any way which resembles the subsidies given to public broadcasting.”

O’Connor: “They may subsidize them indirectly … .”

Justice William Rehnquist (interjecting in support of Justice O’Connor): “The weekly news media couldn’t function if they didn’t receive the special (postal) rates.”

Alito (differentiating between the subsidies given to newspapers and those given to public broadcasters): “[The newspaper subsidies’] purpose is to make it less expensive for an individual to receive the publication of [his] choice.”

Unconstitutional conditions & content-based restrictions
Having satisfied O’Connor for the moment, Alito then moved to his spending-clause argument. He noted that Pacifica’s main attack on the government’s position was its reliance on the unconstitutional-conditions doctrine. This doctrine, the argument went, limited Congress’ Article I power to regulate the free-speech rights of the broadcasters. Attempting to counter that argument, Alito distinguished the Speiser v. Randall and Perry v. Sindermann (1972) precedents. He stressed that unlike this case, neither of the other cases dealt with a government subsidy; their holdings were thus inapplicable.

Counsel Alito then argued that the ban on editorializing was not content-based. He stressed that although it did ban a particular type of speech, the statute was neutral as to the content of that speech. This argument brought questions and comments from Justice John Paul Stevens, who inquired whether the restriction was indeed content-based. (Stevens later dissented from Court’s vindication of the respondent’s First Amendment rights.)

Private vs. public broadcasters
Samuel Alito’s other argument was based on the premise that the public broadcasters targeted by the statute were fundamentally different from commercial broadcasters. The importance of this distinction, Alito said, was that public broadcasting stations had “special characteristics” that allowed the government to “further restrict” their First Amendment rights; such, however, was not the case with commercial stations. In support of that contention, Alito noted that 67% of the funding of public radio stations and 60% of the funding for public television stations came from government sources.

Public television stations, he added, also received free programming from the government (Alito mentioned “Sesame Street” specifically). Additionally, he noted that two-thirds of all public television stations were owned by state and local governments. With a large portion of a public station’s budget supplied by the government, he argued, it would be inappropriate for the station to promote an “official government viewpoint.”

Alito’s mention of state and municipal-owned stations brought the following line of questioning from William Rehnquist.

Justice Rehnquist: “But what if the State of Alabama or the city of Birmingham say(s), ‘We would like our station to editorialize’?”

Alito: “Well, I think that Congress in regulating broadcasting can take into account the kinds of abuses that may develop when a publicly owned station using public funds, even state or local funds, engages in editorializing in supporting or opposing candidates. I think that creates the possibility of grave abuses that are not present … in the area of commercial broadcasting. It creates the danger that the station will be used as an outlet for government propagandizing. I think one of the things the First Amendment tries to prevent is the government at any level drowning out private voices in the medium of communication. It creates the possibility that people will go into public broadcasting not because they are primarily concerned with excellence and diversity in broadcasting, which was the purpose of the Public Broadcasting Act, but because they are interested in pushing a particular partisan or ideological message.”

Rehnquist: “What about [broadcasting] local controversial issues if the city municipal corporation owns the station?”

Alito: “Certainly, they are allowed to broadcast any view on any issue. Anybody can speak in an individual capacity or represent any group, save one: the management of the station.”

Rehnquist: “Well, how does that avoid ideology, then?”

Alito: “Because that avoids the labeling of a particular view as official.”

Alito then went on to argue that prominent commentators such as Eric Sevareid and David Brinkley could be hired by public broadcasters as pundits. In his view, Congress didn’t intend to “gag the expression of views.” To better illustrate this point, Alito drew an analogy between the editorializing ban and the ban imposed by the First Amendment’s establishment clause.

Alito: “I would draw a rough analogy here to the Establishment Clause of the First Amendment. The Establishment Clause doesn’t interfere with anyone’s practice of religion, but it says that Congress cannot proclaim one religion as an official religion. And this is essentially what [the editorializing ban] does. It doesn’t interfere with any expression of views, but it just says that a public station, using public money, cannot put its official stamp of approval on any particular view or candidate.”

Alito also defended the statute on the grounds that the government, as the regulator of the public spectrum, could justify the restriction. He cited the case of Red Lion Broadcasting Co. v. FCC, in which the Court had sanctioned some government restrictions on free speech because of the scarcity of broadcast frequencies. Sandra Day O’Connor immediately questioned that justification:

Justice O’Connor: “Well, isn’t that changing? Aren’t there far more frequencies available today than in the past?”

Alito: “There are, Justice O’Connor, but I think that there is still a scarcity with respect to the most valuable frequencies, VHF television stations for example, in the most desirable markets. In any event, that is a decision for Congress to make … .”

Perhaps in an attempt to move the Court’s scrutiny to a different issue, Rehnquist interjected:

Justice Rehnquist: “Well, the government doesn’t only have to rely on Red Lion here, does it? It can also rely on the right of any contributor to attach strings to its contribution.”

Such “strings,” however, proved too much: The Court, in a 5-4 opinion per Justice William Brennan, struck down the editorializing law. It was, in the words of the FCC’s General Counsel Bruce Fein, “a watershed decision … a significant breakthrough.” With apparent delight, Fein, the Reagan administration deregulator, told Washington Post reporter Fred Barbash that the Court had never applied such intense First Amendment scrutiny to a broadcasting regulation. Ironically, he appeared to see Alito’s loss as a victory for a hands-off government approach to broadcasting.

Does Alito still hold such views?
Keeping in mind what he argued in FCC v. League of Women Voters:

  • Does Judge Alito believe that in certain instances it may be constitutionally permissible to treat the electronic and print media differently?
  • Does he now hold that the rule of Speiser v. Randall has no role to play where government subsidies are involved?
  • Does he still hold to the logic of Red Lion as a justification for regulating broadcasters?
  • What standard of judicial review does he think should properly apply in cases such as FCC v. League of Women Voters?
  • What merit, if any, does he find in Justice Stevens’s dissent in FCC v. League of Women Voters?
  • Does he still maintain that the analogy to the establishment clause is a sound argument for regulating public television?

    In short, were the views of Samuel Alito as government lawyer in FCC v. League of Women Voters ever his own views? Are they his own today? Or has he accepted those advanced by Justice Brennan in the case? Or are his views of an entirely different order?

    Those are questions for the Judiciary Committee to pursue, if it wishes. With the Rumsfeld case now before the Court and the DKT case on its way to it, the senators may or may not obtain clear and satisfying answers. The problem, of course, is that this is an issue that will come before Judge Alito if he is confirmed. Then again, senators do have a knack for sometimes getting answers to unanswerable questions.

    Two decades or so ago, Fredric Woocher, the lawyer who successfully represented the League of Women Voters, told a Los Angeles Times reporter that the Court’s ruling “will prevent an administration from trying to use the power of the purse to influence what organizations that receive federal funds do and how they can spend their money.”

    That prediction did not prove entirely true, as evidenced by the Court’s 1991 ruling in Rust v. Sullivan (upholding a law prohibiting federally funded projects from engaging in counseling on abortion referrals) and National Endowment for the Arts v. Finley (1998) (upholding decency standards imposed on candidates for government art grants). Though there is other Supreme Court case law sympathetic to Woocher’s view, the general question remains open and controversial.

    Whether the new Roberts Court will tend more in the First Amendment direction of what Samuel Alito argued in FCC v. League of Women Voters or what a slim majority of the Court ruled is unknown. What remains certain, however, is the pragmatic wisdom offered up in a July 26, 1984, New York Times editorial: “The Supreme Court’s new wall between Government funds and Government control is an important reminder of the dangers that confront tax-supported communication.”

    Mike Darner is an intern at the First Amendment Center and a second-year law student at the Catholic University of America in Washington, D.C.

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