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Further, the FCC emphasized that Congress' judgment in determining that public funding could cause a “disruptive influence” on editorial policy was entitled to considerable judicial respect: “Far more knowledgeable than the district court about the use of political power and influence, Congress accurately assessed the need to ban editorializing by stations that receive certain federal grants, and its judgment should have been honored.” [Id. at 19) Similarly, Congress' decision that the ban on editorializing was necessary to prevent the use of taxpayer money to promote controversial private views was also entitled to respect, the Commission argued.

Finally, the FCC pointed out, “the restriction upon expression by noncommercial educational stations is not severe.” (Id. at 21] The Commission noted that: (1) editorializing was banned only with respect to management spokesmen and was permitted with respect to station employees and others speaking in their individual capacities; (2) news subjects could be covered in any manner; (3) the prohibition against editorializing was strictly neutral; and (4) any station which found the ban on editorializing unduly restrictive could simply decline Corporation for Public Broadcasting grants.

On January 25, 1983, the plaintiffs-appellees filed a motion to dismiss the FCC's appeal or, in the alternative, to affirm the judgment of the district court.

Initially, the plaintiffs argued that the appeal should be dismissed on the ground that the FCC had failed to file its notice of appeal within the time for filing set forth in the Supreme Court Rules. In sum, the plaintiffs contended that the Commission filed its notice prematurely, since, at the time it was filed on September 3, 1982, a motion to alter or amend the district court judgment was pending and the lower court decision was therefore not "final." Although that decision became final on November 1, 1982 (when the FCC's motion to alter or amend was effectively granted and changed to a plaintiffs' motion for attorneys' fees), the plaintiffs pointed out that during the subsequent 30 day filing period no notice of appeal was filed by the Commission.

Alternatively, the plaintiffs argued that the lower court decision should be affirmed because: (1) the district court properly held that section 399 could survive First Amendment scrutiny only if it served a compelling government interest and was narrowly tailored to that end; and (2) the interests served by section 399 could not justify the statute's ban on editorializing.

The plaintiffs dismissed out of hand the Commission's argument that a less stringent standard of review under the First Amendment was warranted in this case:

The government's argument that the First Amendment's traditional compelling interest test is inappropriate rests on a fundamental mischaracterization of both the nature of a CPB grant and the scope of § 399's prohibition. First, the grants that local stations receive for programming from the Corporation for Public Broadcasting are not “federal funds.” Moreover, $ 399 does not, as appellant suggests, simply restrict the manner in which the noncommercial broadcaster may spend the grant it receives. Rather, the statute imposes an outright restraint on what

the broadcaster may do or say with any of its funds. Thus,
this is not just another instance of Congress limiting the
use of appropriated funds, and the examples upon which
the government relies, see J.S. 10, are wholly inapposite to
the reality of this case.

More important, the government's argument demon-
strates a material misunderstanding of basic constitutional
law. This Court has never countenanced the conditioning
of a grant of federal funds on the recipient's surrender of
its fundamental liberties, particularly its First Amend-
ment right of free expression. See Elrod v. Burns, supra,
427 U.S. at 361; Sherbert v. Verner, 374 U.S. 398 (1963);
Speiser v. Randall, 357 U.S. 513 (1958); Frost & Frost
Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 593-94
(1926). The reach of the Spending Power does not extend so
far as to permit the government to place a price tag on the
noncommercial broadcaster's exercise of its freedom of
speech. [Motion to Dismiss or Affirm, January 25, 1983, at

16-17 (footnotes omitted)] Further, said the plaintiffs, the purported interest served by the prohibition on editorializing-in particular, preventing the possibility of government interference with free expression-were far too speculative to justify upholding section 399.

On February 16, 1983, the FCC filed a reply memorandum addressing solely the plaintiffs' contention that the appeal was not timely filed. Terming the plaintiffs' argument "specious," the Commission asserted that: (1) the statute governing appeals to the Supreme Court (28 U.S.C. § 1252) did not require a “final" order; (2) a preliminary holding of unconstitutionality of a Federal statute was immediately appealable even if the district court might modify it at a later stage of the proceedings; and (3) even if a motion to alter or amend the judgment would have precluded an appeal, the motion regarding attorneys' fees was not properly a motion to alter or amend and was not regarded as such by the district court.

On February 28, 1983, the Court issued an order postponing consideration of the question of jurisdiction until hearing the case on the merits.

Status—The case is pending in the U.S. Supreme Court, although the issue of attorneys' fees remains in the U.S. District Court for the Central District of California.

The complete text of the March 11, 1980 order of the district court is printed in the “Decisions” section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the June 18, 1981 order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1981.

The complete text of the August 5, 1982 order of the District court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982.

21-618 0–83_-27

Gaylor v. Reagan

Civil Action No. 82-C-985-D (W.D. Wisc.) On November 22, 1982, Anne Gaylor, a Wisconsin resident and "nontheist and president of the Freedom From Religion Foundation, Inc., a national organization headquartered in Madison, Wisconsin,” filed a complaint for declaratory and injunctive relief in the U.S. District Court for the Western District of Wisconsin against President Ronald Reagan and the "97th Congress of the U.S.A.” (Civil Action No. 82-C-985–D] The complaint challenged the constitutionality of Public Law 97-280 (96 Stat. 1211), passed as a joint resolution of the U.S. Senate and House of Representatives, which authorized and requested the President to proclaim 1983 as the “Year of the Bible.”

More specifically, the complaint alleged that P.L. 97-280 violated the Establishment Clause of the First Amendment because it "singles out the Bible from all other religious and spiritual teachings as 'the Word of God'" and "purports to give preference to the Christian religion.” [Complaint for Declaratory Judgment and Injunctive Relief, November 22, 1982, ss X, XI] The plaintiff further averred that if the designation called for in P.L. 97–280 was executed by the President it would "directly and substantially harm the ability of her organization to carry out its function of safeguarding the fundamental constitutional principle of separation of church and state" and that she personally would suffer irreparable damage in that, “as a nontheist, plaintiff believes Biblical teachings are unscientific and represent a denial of the objective reality of nature . . . [and] reliance] on these teachings will erode the ability of our people to deal effectively with individual, local and national problems, and will negatively effect the future of our nation.” [Id., ss XIV, XV] The plaintiff added that “the teachings of the Bible contain violent sexist and racist overtones which, not only does she find personally repugnant, but which potentially could encourage persons who rely on them to act in a manner harmful to herself and others." [Id., ss XVI]

Simultaneously with the filing of her complaint, the plaintiff also filed a motion for a preliminary injunction. In supporting documents which accompanied the motion, the plaintiff restated many of the allegations of her complaint and reiterated that she would suffer irreparable harm if the President made the designation called for in P.L. 97-280.

On December 6, 1982, the plaintiff filed a motion for a temporary restraining order, again on the ground that she would suffer immediate and irreparable injury if the "Year of the Bible" designation was made. On December 13, 1982, a hearing was held on the motion for a temporary restraining order before U.S. District Judge James E. Doyle who denied it from the bench.

Also on December 13, 1982, the U.S. Attorney for the Western District of Wisconsin filed a response to the plaintiff's request for a preliminary injunction on behalf of President Reagan. As affirmtive defenses the U.S. Attorney asserted that: (1) the complaint had not been properly served on the defendants; (2) the plaintiff lacked standing; (3) the case was not ripe for judicial determination; (4) the court lacked jursidiction to retroactively enjoin an act of Congress; (5) the “97th Congress” was not a suitable party and therefore the court lacked personal jurisdiction; (6) there was no venue over the “97th Congress” in the Western District of Wisconsin; and

(7) the plaintiff had failed to satisfy the requirements of a preliminary injunction in that she had not set forth facts demonstrating a reasonable likelihood of success on the merits or irreparable injury, nor had she shown that any harm to her was not outweighed by harm to the defendants if an injunction was granted, or that injunctive relief would not disserve the public interest.

On December 20, 1982, a hearing on the motion for a preliminary injunction was held before Judge Doyle and taken under advisement.

On December 23, 1982, Judge Doyle issued an opinion and order denying the motion for a preliminary injunction. Four days later Judge Doyle issued an amended opinion, also concluding that the motion should be denied. [Gaylor v. Reagan, 553 F. Supp. 356 (W.D. Wisc. 1982)] The court did hold, however, that the plaintiff had standing, finding that her threatened injury was bona fide and traceable to the challenged conduct, that her threat of injury could not fairly be considered shared by the citizenry at large, and, more generally, that the allegations of the complaint were sufficient and were within the zone of protection of the First Amendment.

At the outset of his discussion of standing, Judge Doyle rejected the argument that the potential injury involved was minimal because the anticipated designation would have limited effect. He reasoned that Congress would not have passed P.L. 97-280 unless the intent was to have a “real impact” on the country:

The suggestion is that this is a tempest in a teapot because P.L. 97-280 and a presidential designation of 1983, in tandem, can be expected to have so little actual impact upon anyone. A decent respect for the legislative and executive branches bars acquiescence in this suggestion. The Senate and the House obviously regarded Senate Joint Resolution 165 as a matter of great moment. By his approval and signature, the President has demonstrated that he shares this view. I may not assume that they consciously engaged in an idle pursuit, nor would it be seemly for me to find that they have erred in their assessment that the designation of 1983 as "the Year of the Bible" willl have a real impact upon the lives of the people of the United States. It follows that the impact will be experienced not only by those who already adhere to the teachings of the bible and those who may be persuaded in 1983 and thereafter to do so, but also by those like the plaintiff who do not adhere and are unlikely to be persuaded. But the impact will vary as between those two broad groups.

[553 F. Supp. at 360) Moreover, Judge Doyle determined, the tone of P.L. 97-280 was sufficiently aggressive to support a finding of bona fide injury.

The boldness and aggressiveness of P.L. 97-280 cannot be ignored. It pronounces the bible to be “the Word of God” and it calls for the presidential designation of 1983 in recognition of our national need to apply the teachings of the Holy Scriptures." P.L. 97-280 represents a Congressional pronouncement-and, if the President makes his

designation in the terms of P.L. 97-280, a pronouncement
by the government of the United States—that truth and
virtue lie within the bible and that falseness and evil lie
without it. The implication is so powerful as hardly to be
described as implication, that those who fail or refuse to
accept and to apply biblical teachings abide in falseness
and evil. To be subjected to such reproach by one's govern-

ment is to suffer bona fide injury. (Id.] Turning to the merits of the motion for a preliminary injunction, Judge Doyle found that the injury with which the plaintiff was threatened was serious and irreparable, and that efforts subsequent to any designation to repair the damage to the plaintiff would not be wholly successful. Furthermore, the judge found, if a decision on the merits was ever reached, "it appears that plaintiff enjoys a reasonably good chance to succeed in her contention that P.L. 97-280 and any presidential designation expressed in terms of P.L. 97-280, violate the establishment clause of the first amendment.” (Id. at 361] Despite these findings, however, Judge Doyle concluded that he could not issue the requested injunction:

[I]t is doubtful whether it is within the power of the na-
tional judiciary to intervene in advance of any act contem-
plated by the President and to exercise its injunctive
power to forbid it. State of Mississippi v. Johnson, 71 U.S.
(4 Wall.) 475, 501, 18 L.Ed 437 (1886). Even assuming the
judiciary enjoys the power anticipatorily to enjoin the
President, who , with the Vice-President, is the only officer
of the United States elected by the whole people, this is
not the occasion for its exercise.

I have made plain my view that the issue here is grave.
But what is missing is a virtual certainty that unless en-
joined, the President will actually choose to designate 1983
ad "the Year of the Bible" and, more to the point, that if
he does so, he will express the designation in an unconsti-
tutional manner.

As chief executive it is surely within the power of the President to exhort the entire nation to mark 1983 as a year of reflection and contemplation. It is surely within his power to exhort the people of the United States in 1983 to draw upon those wonderfully rich and various well springs of tradition-ethnic, regional, religious, and nonreligious—from which they draw their strength and resolve. It is surely within his power to identify and to proclaim his own tradition and to express his respect for those differing but equally proud traditions. To accomplish such constitutional exhortation in the context of a "Year of the Bible" would be a remarkable feat. But doubt that he can perform it does not justify the exercise of the injunctive power of this court against the President, if such power

exists. (Id.] On February 11, 1983, the U.S. Attorney filed a motion to dismiss the complaint. A supporting memorandum was to be filed subsequently

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