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place of ideas” which is their constitutional right. (Id. at

11 (footnote omitted)] Second, the memorandum contended that the Government could show no compelling interest which would justify the absolute prohibition found in section 399(a). Such a ban, the plaintiffs argued, was only permissible in cases where the utterances did not constitute “speech” at all-e.g. obscenities, false and deceptive advertising, defamation, and so forth. The only conceivable governmental interest in this case, the memorandum noted, was in preventing "public criticism and comment" directed at Congressional incumbents, “a purpose (which) is totally improper and cannot serve as a basis for upholding the statute.” (Id. at 15] The plaintiffs also asserted that the fear that noncommercial stations might become a "giant government-controlled propaganda machine” was totally unfounded, not only because of the restraints built into the Corporation for Public Broadcasting charter and the FCC political editorializing rule (and the fairness doctrine) but also because noncommercial stations received but a fraction of their income from the Federal Government.

Third, the memorandum contended that even if there were legitimate Government interests supporting section 399(a), because there were narrower, less drastic, means of satisfying those interests, the section was still unconstitutional. It pointed to several measures short of a total ban on editorializing already in effect, such as the fairness doctrine and the right of reply legislation, and suggested other alternatives,

Turning to the Fifth Amendment equal protection issue, the plaintiffs argued that the noncontent-based distinction between noncommercial and commercial broadcasters was not premised on the required "substantial" government interest and therefore could not be sustained as a matter of constitutional law.

On October 11, 1979, U.S. Attorney General Benjamin Civiletti informed Senate Majority Leader Robert Byrd by letter that the Department of Justice, which represented the FCC in the case, would not defend the constitutionality of the statute. The Attorney General in essence agreed with many of the arguments raised by the plaintiffs in their memorandum. He concluded that the statute violated the First Amendment and that no compelling state interest could be identified to justify the prior restraint on speech. He also noted that section 399(a) was overbroad (since public broadcasting stations receiving no public funds were covered) and that there were less restrictive ways to achieve the purposes of the statute. He noted that the FCC agreed that the statute “cannot be defended successfully in its present form.” In a stipulation filed with the court on October 23, 1979, the FCC stated that it had “determined to discontinue its defense of the constitutionality of Section 399(a) ..." and had so advised Congress. On January 18, 1980, the Justice Department, for the FCC, stated to the court that it had "no opposition to the arguments advanced by the plaintiffs in support of their Motion for Summary Judgment that $399(a) is unconstitutional.'

On January 17, 1980, the Senate moved to appear in the case as amicus curiae pursuant to Senate Resolution 328 (125 Cong. Rec.

21-618 0-83---26

S19431, Dec. 20, 1979) and the Ethics in Government Act (2 U.S.C. 82881(a), providing that permission to appear as amicus "shall be of right” if the appearance is timely). Simultaneously, the Senate Legal Counsel moved to dismiss the complaint and to defer responses to the plaintiffs' motion for summary judgment until the court had ruled on the motion to dismiss. The defendant FCC took no position on these motions.

In a memorandum accompanying the motion to dismiss, the Senate argued that the court did not have jurisdiction to hear the action because there was no ripe case or controversy, there were no adverse parties, and the plaintiffs had not exhausted their administrative remedies. The memorandum characterized section 399(a) as a provision passed by Congress “to keep the massive infusion of federal money into the media commenced by the Public Broadcasting Act of 1967 from bringing in its wake political entanglements and control and partisan use of public money.” [Memorandum in Support of Senate's Motion to Dismiss, January 17, 1980, at 1]

On the case or controversy point, the Senate contended that the suit was “anticipatory” and not presented in a concrete form suitable for judicial resolution. "A proper judicial ruling," the memo randum stated, "must be informed, as this one is not, by the characteristics of the government-controlled broadcaster who makes the candidate endorsement or editorial violative of 47 U.S.C. 8399(a), and by what he says, and how.” (Id.] In this case, the Senate asserted, the plaintiffs did not allege that they had violated the statute, that it had been enforced or threatened to be enforced against them, or even that they had, or planned to have, engaged in, solicited, or prepared specific candidate endorsements or editorials by public broadcasters. Further, the Senate argued, if the court refused to rule on this anticipatory case, only "relatively mild statutory sanctions” (Id. at 17] would apply if the plaintiffs did later vio late the statute (with likely mitigation), which did not constitute sufficient “hardship” to warrant the court's intervention.

On the second point, the Senate asserted that the parties were not adverse on the merits because, in short, "plaintiffs assail 47 U.S.C. $399(a); the Department of Justice, representing the defendant FCC, does not defend it; and there are no other parties." [Id. at 18] The Senate emphasized that the parties in the case came to court "fresh from the rejection by Congress of the goal they seek here." [Id. at 1] The memorandum explained:

[T]his suit was brought by Representative Waxman immediately upon his failure to obtain repeal of 47 U.S.C. $ 399(a) by Congress “Opposing” Representative Waxman is the Executive Branch which joined in efforts to amend 47 U.S.C. $ 399(a). "It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." Chicago & Grand Truck Railway v. Wellman, 143 U.S.C. 339, 345 (1982), quoted in Ashwander v. Tennessee Valley Authority, supra, 297 U.S. at 346. Traditionally, courts have taken agreement between private and Executive parties as a cue to dismiss constitutional attacks.

The Senate's appearance here confirms explicitly the separation-of-powers concern that has always been implied in the rule forbidding nonadversary attacks on legislation: that the Executive, by act or omission, must not be able to enlist the Judiciary to put its imprimatur on the

revision of legislation. (Id. at 19-20) Finally, the Senate contended that the case should be dismissed because the plaintiffs had failed to exhaust their administrative remedies at the FCC, and, it stated, if they had done so jurisdiction would be exclusive in the court of appeals by virtue of the statutory requirements of the Communications Act. Since no FCC final order had been issued affecting the plaintiffs pursuant to section 399(a), the Senate argued, the mandatory administrative procedures had not been utilized. Further, the Senate argued on policy grounds, "the considerable expertise of the FCC should be applied before the judiciary is asked to pass on the constitutionality of the statute.” (Id. at 25]

On February 13, 1980, the plaintiffs moved to disallow the filing of the Senate's motion to dismiss on the ground that only parties, not an amicus curiae, could file such a motion. (The plaintiffs did not object to the Senate appearing as amicus curiae.) Concurrently, the plaintiffs filed a memorandum arguing that if the court agreed to entertain the Senate's motion to dismiss, it should be denied.

In response to the Senate's arguments, the plaintiffs asserted, first, that because section 399(a) violated their constitutional rights every day by "chilling" the free speech of the broadcasters and by denying listeners, including Rep. Waxman and the League of Women Voters, access to free broadcast speech, the action was a ripe case for controversy over which the court had jurisdiction. Second, the plaintiffs argued, Pacifica had “made its intentions to broadcast editorials clear” and was only prohibited from doing so by section 399(a); should it be forced to violate the statute before testing its constitutionality, it would automatically risk a "wide variety of severe criminal and civil sanctions," including possible revocation of its broadcast license. The plaintiffs claimed they were in an untenable position:

Section 399(a) does indeed present Plaintiff Pacifica and all other noncommercial broadcasters with a "Hobson's choice” between the two unacceptable alternatives. On the one hand, Pacifica can refrain from editorializing, fearing to exercise what it believes to be its First Amendment rights because of the threat of a variety of sanctions, criminal and civil. On the other hand, Pacifica can voluntarily and knowingly violate the statute by broadcasting editorials, subject itself to the sanctions, and plunge into a risky and expensive legal battle over the constitutionality of the statute. Memorandum in Opposition to Senate's

Motion to Dismiss, February 13, 1980, at 19] Third, the plaintiffs maintained that the action was a justiciable adversary proceeding, and that the FCC, through the Department of Justice had “merely made the legal determination that the plaintiffs' claims were meritorious." [Id. at 3] Moreover, the plaintiffs noted, the Senate would vigorously oppose the plaintiffs' claims. Finally, the plaintiffs argued, the doctrine of exhaustion of administrative remedies had no application to this case because the suit was a "facial attack on the constitutionality of section 399(a) and the FCC has no power to determine the constitutionality of a federal statute." [Id. at 24]

On February 25, 1980, the Senate filed a reply memorandum in support of its motion to dismiss, reiterating many of its prior arguments. It did, however, also include an affidavit from the FCC explaining the FCC's enforcement policies with respect to section 399(a), and “expressly and unambiguously” denying that it would seek harsh sanctions of any kind if a station editorialized or endorsed a candidate for the purpose of challenging the statute. Given this affidavit, the Senate contended that the plaintiffs could not demonstrate any hardship in proceeding by the statutorily mandated route (i.e. by exhausting their administrative remedies) rather than insisting on a determination in an “abstract, nonadverse” case.

On March 3, 1980, the Senate's motions were argued before U.S. District Court Judge Malcolm M. Lucas who granted the motion to appear as amicus curiae and allowed the filing of the motion to dismiss. The latter motion was taken under advisement and ultimately granted in an order entered on March 11, 1980. (League of Women Voters of California v. Federal Communications Commission, 489 F. Supp. 517 (C.D. Cal. 1980)]

The district court held that the case was not justiciable because it was not ripe for adjudication. Judge Lucas explained:

Because in this instance there is the distinct likelihood that the FCC will not seek to penalize a broadcaster that violates $ 399(a) and because the hardship to be imposed upon the parties should the Court not now decide the constitutionality of $ 399(a) is minimal, the Court finds that this case is not ripe for decision at this time.

Although the statute is challenged on its face, the Court cannot say that the particular facts of any given violation and prosecution under the statute would not color the outcome of this case. The Court finds that it would be improper to attempt to make a constitutional decision without having a concrete factual basis with which to work. That basis does not exist in this case and the Court declines to resolve the constitutional question in the abstract. [489 F.

Supp. at 520) Turning to the issue of adversariness, the court found it lacking because the parties simply did not oppose one another. “In this case, the actions of the defendant indicate that there is no geniune adversariness of interests ... The role of the FCC in this action has been to file a statement of no opposition to plaintiffs' motion for summary judgment because defendant agrees that the statute is unconstitutional . . . In sum, the Court finds that abundant evidence indicates that all parties seek this Court to declare $ 399(a) unconstitutional. Therefore, there is no case or controversy under Article III.” (Id.]

Finally, the court addressed the fact that the decision not to argue in favor of the statute was made by the Executive branch, thus creating a conflict with the Legislative branch which passed the statute in the first instance. This, said Judge Lucas, "flavored" the suit with a sub silentio prayer by the Executive branch for action by the Judicial branch that it cannot take itself.” (Id. at 521) For that reason, the court stated, a particularly heavy burden fell on the plaintiff to present "concrete facts” and other jurisdictional requisites "to insure that such clashes between the two other branches are resolved as the Constitution envisions." [Id. at 520)

On April 24, 1980, the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Ninth Circuit (No. 80-5333], and on June 2 they moved to have consideration of the appeal expedited, citing an on-going denial of First Amendment rights during an election year. On June 6, the Senate, as amicus curiae, responded, taking “no position” on the motion to expedite the appeal, but pointing out that the plaintiffs still had not averred any "upcoming specific broadcast on a specific matter at any specific time necessitating immediate resolution of this suit." In an order issued on June 10, 1980, the circuit court denied the motion for expedition without prejudice to its renewal after briefing was completed.

The issues on appeal were those considered in the lower court: whether the case presented an Article III “case or controversy” ripe for adjudication; whether there was requisite adversariness of parties; and whether the doctrine of exhaustion of administrative remedies was applicable. The briefs of the plaintiffs-appellants, filed August 5, 1980, and the Senate as amicus curiae, filed November 4, 1980, essentially reiterated the arguments made in district court. In a reply brief filed on November 19, 1980, the plaintiffsappellants took particular pains to dispute what they felt was the Senate's implication that "the executive and legislative branches of the federal government have trumped up a lawsuit to gain improper access to the judicial branch.” (Appellants' Reply Brief, November 19, 1980, at 2] The plaintiffs claimed to have been "shocked" to learn that the Justice Department and FCC would not contest the suit, and noted that the decision was "totally outside the[ir] control or knowledge" and should not be allowed to prejudice plaintiffs' ability to assert their constitutional rights. (Id. at 18-19]

On December 12, 1980, the plaintiffs-appellants renewed their motion to expedite the appeal, which was granted by the court in an order filed December 24.

On April 9, 1981, the defendant-appellee FCC, through the Justice Department, filed a motion to vacate the judgment and opinion of the district court and to remand the case to the lower court for reconsideration. Noting that “the Attorney General has this week decided that the government should change its position in this case, and that change in position ... significantly alters the nature of the issues presented,” the FCC argued that reconsideration was more appropriate than the circuit court's deciding the appeal as presently briefed. [Motion to Vacate and Remand, April 9, 1981, at 1] The FCC advised the appeals court that the new Attorney General had now directed the Government to defend the constitutionality of section 399(a), thus mooting the issue of whether the case remained adverse when the Justice Department origi

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