the new section violated the First and Fifth Amendments. On the last point the plaintiffs dismissed the Government's reasoning as without foundation:

There are clearly several crucial links of faith in the chain of reasoning underlying this purported justification for $ 399. In order to accept the government's argument, one must assume: (1) that noncommercial broadcasting stations are so dependent on CPB appropriations that they would do nothing that could possibly jeopardize CPB funding; (2) that noncommercial licensees believe that Congress would retaliate against editorials that are critical of government policies by reducing or eliminating funding to all CPB broadcasters; and (3) that noncommercial stations would react to this perceived fear of Congressional revenge by continuously taking editorial positions in favor of the government.

Yet defendant makes no showing (nor was there any demonstration made before Congress at the time of $ 399's enactment) that any of these assumptions are founded upon “the practical empirical evidence of prior practice" that defendant itself acknowledges is required by Supreme Court precedent. See Defendant's Supplemental Memorandum, at 13. Given the diverse and pluralistic nature of the hundreds of broadcasting stations receiving CPB funds, as well as the shortcomings and bluntness of using the CPB appropriation as either a "carrot” or a "stick” in influencing individual licensee's editorial decisions, the government's asserted interest not only is far from “compelling, but passes from “speculative” to “improbable." (Plaintiffs' Second Reply Memorandum . . ., September 23, 1981, at

10-12 (footnotes omitted)] On October 2, 1981, the plaintiffs filed a second amended complaint seeking to invalidate, and enjoin enforcement of, the prohibition against editorializing contained in the new section 399, again on First and Fifth Amendment grounds. (Importantly, the plaintiffs dropped their challenge to that portion of section 399 which prohibited public broadcasting stations from supporting or opposing candidates for political office.) The complaint specifically alleged that plaintiff Pacifica "would broadcast its views on various important public issues, and would clearly label those views as being editorials broadcast on behalf of Pacifica management” were it not for section 399. [Second Amended Complaint For Declaratory and Injunctive Relief, October 2, 1981, 1 6] The other plaintiffs were also alleged to have suffered specific injury because of section 399. (Id., sls 4,5)

On October 13, 1981, the defendant FCC filed a memorandum in support of dismissal of the second amended complaint, asserting identical grounds to those contained in the opposition to the plaintiffs' motion for summary judgment. Accordingly, the FCC merely referenced the defendant's previous memoranda of July 22, 1981 (see supra, page 400), and September 15, 1981 (see supra, page 401).

On October 26, 1981, the plaintiffs filed a memorandum in opposition to the defendant's motion to dismiss, which was premised on grounds identical to those submitted in support of their motion for summary judgment. Accordingly, the plaintiffs relied on their previous memoranda of August 31, 1981 (see supra, page 401), and September 23, 1981 (see supra, page 402).

On November 9, 1981, oral argument was held on the defendant's motion to dismiss the second amended complaint and the plaintiffs' motion for summary judgment. Judge Lucas took both motions under submission.

On August 5, 1982, Judge Lucas issued memorandum and order granting the plaintiffs' motion for summary judgment and finding the prohibition against editorializing contained in section 399 unconstitutional as a violation of the First Amendment. (League of Women Voters of California v. Federal Communications Commission, 547 F. Supp. at 379 (C.D. Cal., August 5, 1982)] Judge Lucas held at the outset that plaintiff Pacifica had standing to bring the action because it faced a "very realistic threat of severe administrative and penal sanctions” if it violated section 399, and therefore had a "sufficient stake in the outcome of this litigation even without violating the section] to warrant its invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on its behalf." [547 F. Supp. at 383] Because resolution of Pacifica's claims would effectively dispose of the claims raised by Rep. Waxman and the League of Women Voters, the judge ruled that it was not necessary to consider separately the question of whether either or both of those parties would have standing absent Pacifica.

Turning to the merits of the case, Judge Lucas first rejected the defendant's contention that a less stringent standard for review under the First Amendment should be applied in this case because it involved the broadcast media. He ruled that section 399 could withstand attack on First Amendment grounds only if the defendant could demonstrate that it served a "compelling government interest” and was “narrowly tailored to that end.” [Id. at 384] Judge Lucas concluded that the FCC had failed to carry its burden of justification; he dismissed the Commission's arguments that the section served a compelling interest by ensuring that funded noncommercial broadcasters did not become propaganda organs for the government and by preventing government funding from interfering with the balanced presentation of opinion on funded noncommercial stations.

Although Judge Lucas admitted that there “is often reason to fear that he who pays the piper calls the tune,'” he reasoned that the fear was "greatly reduced where the 'piper' receives funds from many different sources.” (Id. at 385] The judge noted, for example, that Pacifica apparently received only 14% of its total revenues from CPB Community Service Grants in 1978. Therefore, he found, "in light of the modest level of government funding, the expressed fear of government manipulation of the broadcast media does not seem to be justified.” (Id.]

Furthermore, Judge Lucas stated, the fear of government control was even more speculative in view of the fact that numerous additional safeguards had been built into the funding system to make certain that funded noncommercial broadcasters could not be manipulated. For example, he pointed out, the Corporation for Public Broadcasting, which disburses Federal funds to broadcasters, is an

independent, non-profit, private corporation, the board of which is politically bipartisan by law. The Corporation cannot own or operate any station and cannot produce, schedule, or disseminate programming. Beyond even these safeguards, Judge Lucas said, the additional restrictions imposed by the "fairness doctrine" ensure that a licensee cannot present one-sided political propaganda and thus become an organ of the government. He concluded:

The legislative history of $ 399 confirms that Congress did not view § 399's ban on editorializing as a necessary means to a compelling end. Rather, $ 399 was added out of an “abundance of caution.” H.R. Rep. No. 572, 90th Cong., 1st Sess. 20 (1967) reprinted in (1967] U.S. Code Cong. & Ad. News 1799, 1810. Such prudence, while otherwise commendable, does not justify § 399's restriction on speech. The Court must, therefore, reject defendant's contention that fear of government control of funded noncommercial broadcasters presents a compelling government interest which will enable $ 399's ban on editorializing to survive

scrutiny under the First Amendment. (Id. at 386] Judge Lucas also rejected the FCC's theory that section 399 served a compelling interest by preventing government funding from interfering with the balanced presentation of opinion. He found that although "there is much to be said for a complete prohibition of editorializing by all broadcast licensees as a rational attempt to foster balanced broadcasting, this concern is not sufficiently compelling to justify the ban on speech imposed by $ 399 under the First Amendment. The protections offered by the fairness doctrine effectively eliminate any substantial danger of ‘unbalanced' programming.” (Id. at 387]

Judge Lucas summarized_his holdings with respect to section 399's unconstitutionality on First Amendment grounds:

In sum, the court holds that the right of funded noncommerical broadcasters to editorialize is entitled to the full panoply of First Amendment protections. There are no special characteristics of the broadcast media which justify the application of "special,” less stringent First Amendment standards in this case. Defendants must therefore establish that § 399's ban on editorializing is narrowly tailored to serve a compelling government interest. Defendant has failed to carry this burden. The fear that funded noncommercial broadcasters will become propaganda organs for the government is too speculative to provide such a compelling interest. The desire to ensure the balanced presentation of opinion by funded noncommercial broadcasters, even if it had been a motivating factor in the passage of g 399, also fails to provide a sufficiently compelIing interest to justify the ban on editorializing imposed by that statute. The Court holds that § 399 violates the First Amendment insofar as it prohibits funded noncommercial

broadcasters from editorializing. (Id.] Turning to the plaintiffs' challenge to section 399 on Fifth Amendment due process grounds, Judge Lucas found that while the claim might be well taken, “the Court has difficulty adopting it in the context of (a) motion for summary judgment” where "there is little if any competent evidence before the Court from which to draw any justifiable conclusion as to the dangers inherent in the

potential sources of coercive power." (Id. at 388] Judge Lucas therefore based his decision solely on First Amendment grounds.

On August 18, 1982, the defendant FCC filed a motion to alter or amend Judge Lucas' judgment solely with respect to the award of reasonable attorneys' fees to the plaintiffs. None of the substantive aspects of the court's decision were challenged in the motion. Subsequently, on September 7, 1982, the plaintiffs filed an application for the award of attorneys' fees and costs. After the parties filed various memoranda on the issue, the question of attorneys' fees was argued before the court on November 1, 1982 and taken under advisement. (Procedurally, the court struck a previous award of attorneys' fees from the original judgment and deemed the plaintiffs' opposition to the FCC's motion to alter or amend a motion for attorneys' fees.)

Meanwhile, on September 3, 1982, the FCC filed a notice of appeal of Judge Lucas' summary judgment order to the U.S. Supreme Court. [No. 82-00912-ADX

On December 1, 1982, the FCC filed its jurisdictional statement in the Supreme Court. In it, the Commission maintained that the question of section 399's constitutionality was substantial and the Court should therefore note probable jurisdiction to review the district court's decision. In general, the FCC argued that the lower court had: (1) erred in concluding that section 399 did not meet First Amendment standards; (2) failed to recognize the legitimate interest served by the ban against editorializing, and (3) refused to respect Congress' judgment in retaining the section in revised form after review. The Commission contended:

The (district) court apparently attached no legal significance to the fact that the provision of 47 U.S.C. 399 regarding editorializing now applies only to those stations that voluntarily accept Corporation for Public Broadcasting grants. The court therefore applied an unduly strict test in deciding whether that provision satisfies First Amendment standards. Based largely upon its own sanguine assessment of the possibility of government pressure upon public broadcasters, the court also seriously underestimated the substantial and legitimate interest served by the provision against editorializing.

Congress recently reviewed the need for the provision on editorializing and decided to retain it in revised form, both because it was Congress' judgment that the provision meets First Amendment standards and because Congress continued to believe that it serves important public needs. This Court should note probable jurisdiction to review the district court's exercise of "the grave power of annulling an Act of Congress.United States v. Gainey, 380 U.S. 63, 65 (1965). (Jurisdictional Statement, December 1, 1982, at

More specifically, the FCC asserted that because the editorializing prohibition applied only as a condition to the voluntary receipt of certain government grants, it represented a legitimate exercise of Congress' spending

power and called for a less stringent standard of review under the First Amendment. A “compelling” governmental interest need not be demonstrated to sustain the statute, the Commission insisted:

This Court has never held or suggested that restrictions on expression imposed as conditions to the receipt of federal funds must be supported by a compelling government interest, and it is apparent that any such blanket rule would lead to absurd results. Certainly Congress may direct that federal funds be spent for a particular purpose and not for others without demonstrating a compelling reason for its choice. For example, Congress has prohibited the unauthorized use of federal funds for lobbying. (18 U.S.C. 1913) even though lobbying is protected by the First Amendment. Congress has also prohibited the International Communication Agency (the successor of the United States Information Agency and the Voice of America) from disseminating information within this country (22 U.S.C. (Supp. IV) 1461), despite the fact that such a restriction would certainly violate the First Amendment if applied to a private news organization. If Congress had chosen to establish a state-owned broadcasting system, as most countries have, rather than subsidizing private noncommercial stations, there seems little doubt that Congress could have prohibited officers and employees of the system from “editorializing" in the name of the system.

The prohibition of editorializing at issue here, while not strictly analogous, nevertheless shares many of the characteristics of the restrictions noted above. Recognizing that Corporation for Public Broadcasting grants are generally unrestricted and thus assist all aspects of a station's operations (see 47 U.S.C. (Supp. IV) 396(k)(7)), Congress in essence has insisted that no portion of those grants be used for editorializing. To be sure, the stations affected by the provisions on editorializing are not government-owned and receive only a portion of their revenue from the federal government. In addition, such stations may claim that their editorials are produced and broadcast solely with private funds. But despite these differences it seems clear that a compelling interest text is inappropriate in this context since the provision at issue does not seek to regulate private speech but rather attempts to prevent misuse of

public funds. (Id. at 9-11 (footnote omitted)] If a lower standard was employed in this case, and the "substantial” and “legitimate” interest of the government in insulating public broadcasting stations from political influence was added to the balance, the Commission argued that "the prohibition against editorializing satisfies First Amendment standards.” [Id. at 12 (footnote omitted)]

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