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U.S. Supreme Court

CBS v. Democratic Nat'l Committee, 412 U.S. 94 (1973)

Columbia Broadcasting System, Inc. v.

Democratic National Committee

No. 71-863

Argued October 16, 1972

Decided May 29, 1973*

412 U.S. 94


The Democratic National Committee requested a declaratory ruling from the Federal Communications Commission (FCC) that the Communications Act or the First Amendment precluded a licensee from having a general policy of refusing to sell time to "responsible entities" to present their views on public issues. The Business Executives' Move for Vietnam Peace filed a complaint with the FCC, alleging that a broadcaster had violated the First Amendment by refusing to sell it time to broadcast spot announcements expressing the group's views on the Vietnam conflict, and that the station's coverage of anti-war views did not meet the requirements of the Fairness Doctrine. The FCC rejected the Fairness Doctrine challenge, and ruled that a broadcaster was not prohibited from having a policy of refusing to accept paid editorial advertisements by individuals and organizations like respondents. The Court of Appeals reversed, holding that "a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted," and remanded the causes to the FCC to develop regulations governing which, and how many, editorial announcements would be aired.

Held: Neither the Communications Act nor the First Amendment requires broadcasters to accept paid editorial advertisements. Pp. 412 U. S. 101-114; 412 U. S. 121-170.

146 U.S.App.D.C. 181, 450 F.2d 642, reversed.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court with respect to Parts I, II, and IV, finding that:

1. The basic criterion governing use of broadcast frequencies is the right of the public to be informed; the manner by which this

Page 412 U. S. 95

interest is best served is dispositive of the respondents' statutory and First Amendment contentions. Pp. 412 U. S. 101-114.

(a) In evaluating respondents' claims, great weight must be afforded the decisions of Congress and the experience of the FCC. Pp. 412 U. S. 101-103.

(b) Congress has consistently rejected efforts to impose on broadcasters a "common carrier" right of access for all persons wishing to speak out on public issues. Instead, it reposed in the FCC regulatory authority by which the Fairness Doctrine was evolved to require that the broadcaster's coverage of important public issues must be adequate and must fairly reflect differing viewpoints; thus, no private individual or group has a right to command the use of broadcast facilities. Pp. 412 U. S. 103-114.

2. The "public interest" standard of the Communications Act, which incorporates First Amendment principles, does not require broadcasters to accept editorial advertisements. Pp. 412 U. S. 121-131.

(a) The FCC was justified in concluding that the public interest, in having access to the marketplace of "ideas and experiences," would not be served by ordering a right of access to advertising time. There is substantial risk that such a system would be monopolized by those who could and would pay the costs, that the effective operation of the Fairness Doctrine itself would be undermined, and that the public accountability which now rests with the broadcaster would be diluted. Pp. 412 U. S. 121-125.

(b) The difficult problems involved in implementing an absolute right of access would inevitably implicate the FCC in a case-by-case determination of who should be heard and when, thus enlarging the involvement of the Government in broadcasting operations. The FCC could properly take into account the fact that listeners and viewers constitute a kind of "captive audience," and that the public interest requires that a substantial degree of journalistic discretion must remain with broadcasters. Pp. 412 U. S. 126-130.

THE CHIEF JUSTICE, joined by MR. JUSTICE STEWART and MR. JUSTICE REHNQUIST, concluded, in Part III, that a broadcast licensee's refusal to accept a paid editorial advertisement does not constitute "governmental action" for First Amendment purposes. The Government is neither a "partner" to the action complained of nor engaged in a "symbiotic relationship" with the licensee. Pp. 412 U. S. 114-121.

(a) Under the Communications Act, a broadcast licensee is vested with substantial journalistic discretion in deciding how to meet its statutory obligations as a "public trustee." Pp. 412 U. S. 114-117.

Page 412 U. S. 96

(b) The licensee's policy against accepting editorial advertising is compatible with the Communications Act and with the broadcaster's obligation to provide a balanced treatment of controversial questions. Pp. 412 U. S. 118-121.

(c) The FCC has not fostered the licensee policy against accepting editorial advertisements; it has merely declined to command acceptance because the subject was a matter within the area of journalistic discretion. P. 412 U. S. 118.

BURGER, C.J.,announced the Court's judgment and delivered an opinion of the Court with respect to Parts I, II, and IV, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined, and in which as to Parts I, II, and III STEWART and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in Parts I, II, and III, post, p. 412 U. S. 132. WHITE, J., filed an opinion concurring in Parts I, II, and IV, post, p. 412 U. S. 146. BLACKMUN, J., filed an opinion concurring in Parts I, II, and IV, in which POWELL, J., joined, post p. 412 U. S. 147. DOUGLAS, J., filed an opinion concurring in the judgment, post, p. 412 U. S. 148. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 412 U. S. 170.

Page 412 U. S. 97

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