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HomeMy WebLinkAboutMemorandum 1983-11-22 RICHARDRICHAROS RICHARDS, WATSON, DREYFUSS & GERSHON GLENN R.WATSON ROBERT G.BEVERLY ATTORNEYS AT LAW HARRY L.GERSHON J.R.VAUGHAN r� DOUGLAS W.ARGUE A PROFESSIONAL CORPORATION MARK L.LAMKEN ARNOLD SIMON THIRTY-EIGHTH FLOOR PATRICK C.COUGHLAN LEE T.RD H. 333 SOUTH HOPE STREET RICHARD H.OINEL DAROLD D.PIEPER LOS ANGELES,CALIFORNIA 90071 FRED A.FENSTER 12131 626-0404 ALLEN E.RENNETT STEVEN L.DORSEY WILLIAM L.STRAUSZ CABLE ADDRESS ROBERT M. B.DREFRIED February 2, 1984 RICHWAT ANTHONY B.ABBOTT TIMOTHY L. ABBOTT TIMOTHY T . NEUFELD STEVEN A..STILES GREGORY W.STEPANICICH OF COUNSEL ROCHELLE BROWNE DONALD STERN GILBERT DREYFUSB INC. MART JO MCGRATH MICHAEL JENKINS RONALD M.GREENBERG BURTON MARK SENKFOR . .p C°I. N MARIANNE GOOOWIN TERESA R.TRACY OUINN M.BARROW JAMES K.HERBERT DEBORAH S.GERSHON COLEMAN J,WALSH.JR. JOHN E.P.LAMB CAROL W.LYNCH LAUREN SEYMOUR S7296-001 RONALD F,GARRITr TO: Mayor and Members of the City Council of the City of Seal Beach FROM: Gregory W. Stepanicich RE: Local Origination Programming • Section 8 of the Franchise Agreement between the City of Seal Beach and Group W Cable, Inc. provides that the franchisee shall provide a $75, 000 . 00 annual grant to the City to be used for the support of local origination programming, community promotion activities, and other services as deemed appropriate by the City. One means, apparently used by several cities, for adminis- tering the expenditure of local origination programming funds is the establishment of a non-profit public benefit corporation. At the direction of Staff, we have prepared articles of incorporation and bylaws for the establishment of such a foundation to be known as the Seal Beach Cable Communications Foundation (the "Foundation") . The articles of incorporation provide that the purposes for which the Foundation "is organized are pri- marily fostering and promoting civic advancement through activities related to cable communications , community promotion, and other public services deemed appropriate by the Foundation. " Examples of activities related to cable communication that the Foundation may engage in are the • following: • Mayor and Members of the City • Council of the City of Seal Beach February 2, 1984 Page 2 1. Making the general public aware of the avail- ability of local origination programming; 2. Producing local origination programming; 3. Awarding scholarships, grants and other in- centives for students interested in communications; and 4 . Providing funds for training and instruction on the production of local origination programming and the operation of cable communications equipment and facilities. The articles state that the Foundation shall not exercise any editorial discretion or control over the content or scheduling of any local origination programming other than • programming produced by the Foundation. The Foundation would be governed by a board of directors consisting of seven members appointed by the City Council. The term of each director would be for two years, and a director could only be removed by the City Council for cause. The administration and operation of local origination programming involves significant freedom of speech issues under the United States and California Constitutions. Attached is a comprehensive memorandum prepared by our office which discusses the relevant legal problems. It is imperative that the City Council recognize the risks of legal liability that can arise when a city attempts to regulate or edit the content or scheduling of local origination programming. We strongly recommend that editorial decision-making relating to the content or scheduling of local origination programming, not produced directly by the City, be exercised by the cable television operator-franchisee (presently, Group W, Inc. ) . Also, it should be noted that comprehensive federal legislation pertaining to cable television regulation is pending before the United States Congress. At the moment, there are two different bills being considered. Unfortunately, it is difficult to predict what regulations, if any, may be adopted by Congress that would govern public access cable television channels. Attachments MEMORANDUM TO: GREG STEPANICICH FROM: CAROL LYNCH DATE: NOVEMBER 22 , 1983 RE: SEAL BEACH/NONPROFIT CORPORATION TO OPERATE A CABLE TELEVISION PUBLIC ACCESS CHANNEL ISSUE: What are the constraints, if any, which are imposed upon a nonprofit corporation created by a municipal entity for the purpose of operating and programming a cable television public access channel? ANSWER: Although there is no specific provision within the • applicable state and federal statutes and regulations and no case authority which specifically prohibits a municipally appointed nonprofit corporation from scheduling the programs to be broadcast on a public access channel , it is inadvisable for a municipality to control, even peripherally, such scheduling and programming . REASONING: Public access to the various modern communications media has always been encouraged and promoted by the Federal Communications Commission ( "F.C.C. " ) . In fact, the F.C.C. promulgated regulations which required cable television systems, which have at least 3, 500 subscribers and 20-channel • CL19-2A • capacity, to make an access channel available to the public. However, in 1979 the United States Supreme Court declared the above-mentioned regulations invalid due to the fact that they imposed common carrier obligations upon cable television operators , which have been excluded from the definition of a common carrier under the Communications Act , F.C.C. v. Midwest Video Corp. , 440 U.S. 689 , 59 L.Ed. 2d 692 ( 1979) . Even though the Court held that the F.C.C . could not require cable television broadcasters to provide public access channels, the states and local governments were not precluded from imposing such a requirement upon a cable • television franchisee. For example, Section 53066 of the California Government Code vests a city or county with the discretion to: " [A] uthorize by franchise or license the construction of a community antenna television system. In connection therewith, the governing body may prescribe such rules and regulations as it deems advisable to protect the individual subscribers to the services of such community antenna television system. " -2- CL19-3A (Emphasis added. ) Pursuant to this broad statutory authority local municipal governments may require a cable television franchisee, which by statute is not otherwise exempt from local control, to provide a public access channel to the community. In fact, under certain circumstances, it is presumed that a cable television broadcaster shall provide a public access channel. Government Code Section 53066 .1( f ) so provides: " (f ) Community service channel program. A cable • television system shall be deemed to be offering a community service channel program if the system does all of the following: (1 ) (A) Provides, for those systems which have a capacity of not more than 20 video channels, one channel or its equivalent for use by local members of the public and government entities; or (B ) provides for those systems which have a capacity of more than 20 video channels, a second such channel if the first channel is in use during 80 percent of the weekdays for 80 percent of the time during any consecutive 13-hour period for 10 consecutive weeks; or (C ) provides, if such system has a capacity of more than 30 video channels, • -3- CL19-4A • a third such composite channel if the second channel is in use during 80 percent of the weekdays for 80 percent of the time during any consecutive 13-hour period for 10 consecutive weeks. "Upon written request of the franchisor, for those systems which have a capacity of 20 or more channels, the first such channel shall, if possible, consistent with the requirements of federal law, and reserving three additional channels for programming by the system, be provided as part of the basic service system. " (2 ) Participates by payment of fifty cents • ($0 . 50 ) per subscriber per year to a nonprofit foundation formed by cable operators with a board of directors which shall include cable operators and a group of directors representing both local nongovernmental user groups and governmental user groups representative of the cultural , geographic, sexual, racial and ethnic diversity of the state. The purposes of the foundation shall include the encouragement of and the provision of (A) instruction and training for individuals, groups, entities, and agencies interested in using community service channels; (B) the nondiscriminatory employment and promotion of other opportunities for minorities and women in the cable television industry; -4- CL19-5A • and (C) public information on the effective use of cable television community service channels. Such foundation shall have grant-making authority. " ( 3 ) In the event the local franchising authority has established or designated an entity whose purpose is substantially similar to the foundation identified in paragraph ( 2) , then, in lieu of the requirement of paragraph (2 ) , the cable television system may elect to provide forty cents ( $0.40) per subscriber per year to that local entity and ten cents ( $0.10 ) per subscriber per year to the statewide foundation. " (4 ) Provides, if requested, to individuals, • groups and entities using community service channels, technical advice by local program staff and reasonable access to local studio and earth station receiving facilities, if such facilities and staff are part of the local system. " ( 5) Notifies secondary schools and community colleges located within the franchise area which furnish training in the uses of community service channels of the availability of the system 's community service channels. " (6 ) Has available for use without charge tape playback facilities for entrance into the system. ( "7 ) Provides, by display information on the -5- CL19-6A • community service channels, written notice to subscribers , or published notice, information to potential users of the opportunity to have access to community service channels. " ( 8 ) Provides, upon election to deregulate and thereafter, as requested, the name , address, and telephone number of the system , the name of the system manager, and the status and utilization of the community service channels , to the foundation for community service channels . " (Emphasis added . ) Thus , Section 53066 . 1 ( f) (.1 ) (A) states that under certain circumstances it is presumed that the franchisee is providing a public access channel . Subsection (2 ) states that a nonprofit foundation may be established which includes both governmental and nongovernmental representatives and sets forth the specific purposes of such a nonprofit foundation. Although subsection (2 ) does not state that the three purposes which are listed are the exclusive purposes of such a nonprofit foundation, it is significant that the programming of the public access channel is not included within the list. In addition to participating as a member of the nonprofit foundation, Section 53066 .1 ( j ) provides that the -6- CL19-7A municipality may act as the "public trustee" of the public access channel: " (j ) Public trustee of community service channel . The franchisor may elect to act as public trustee of the community service channel, to ensure the use of such channel or channels as community service channels . " (Emphasis added. ) Subpart ( j ) seems only to vest the franchisor with the power to promote the use of the public access channel. Subpart (k) of Section 53066.1 is also instructive: ® " (k ) Liability of franchisor and franchisee; regulations. Neither the franchisor nor the franchisee shall be liable for acts arising from the use of such channel or channels by persons other than the franchisee. The franchisee shall establish regulations governing the use of such channels which provide uniform and nondiscriminatory standards, ensure adequate opportunity for participation by local nongovernmental users and incorporate restrictions on libelous or slanderous or illegal programs. ( Emphasis added) . -7- CL19-8A • Since subpart (k) provides that the franchisee shall establish regulations governing the use of the public access channel , the mandatory language of this section seems to preclude programming or operation of the public access channel by the nonprofit foundation. This interpretation is compatible with Section 53066. 1 ( f) (2 ) , cited above, which does not include programming as one of the permissible purposes of the nonprofit foundation. Therefore, although there is no code section which specifically prohibits the nonprofit foundation from scheduling the programs to be aired over the public access channel , the above-cited code sections indicate that the State Legislature intended that such functions would be performed by the cable television franchisee. If the nonprofit foundation or corporation should participate in programming and scheduling, problems may be encountered. The F.C.C. has promulgated regulations applicable to cable television stations which broadcast original cable programs. For example, 47 CFR §76. 205( a) provides that in the event that a cable television operator permits a legally qualified candidate for public office to use the facilities, the operator must provide equal time: " [T) o all other such candidates for that office: Provided , however, that such cable television system -8- CL19-9A • operator shall have no power of censorship over the material cablecast by any such candidate. . . . " (Emphasis in part. ) Section 76. 205 then exempts certain appearances from the above requirement, such as an appearance by a political candidate on a news program. Subsection ( c) of Section 76. 205 further provides that the cable television operator shall not discriminate between candidates for public office. In addition to Section 76. 205, Section 76. 209 of Title 47 CFR sets forth another doctrine which must be ® followed by cable television programmers, the Fairness Doctrine. Section 76. 209 provides: " ( a) A cable television system operator engaging in origination cablecasting shall afford reasonable opportunity for the discussion of conflicting views on issues of public importance . "( b) When, during such origination cablecasting , an attack is made upon the honesty, character, integrity, or like personal qualities of an identified person or group, the cable television system operator shall, within a reasonable time and in no event later than one (1 ) week after the attack, transmit to the person or • -9- CL19-10A group attacked: ( 1 ) Notification of the date, time, and identification of the cablecast; ( 2 ) a script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3 ) an offer of a reasonable opportunity to respond over the system 's facilities. " (Emphasis added. ) Subsection ( c) of Section 76 .209 exempts certain categories from subsection (b) above, such as a newscast. Subsection (d ) of Section 76.209 sets forth the requirements with which the cable television operator must comply if the • cable television system broadcasts an editorial which endorses a candidate for political office. * The United States Supreme Court has discussed the factors which the cable television programmer(s ) "must" consider in exercising its discretion under the Fairness Doctrine: " 'In determining whether to honor specific requests for time, the station will inevitably be confronted * The FCC has recently been considering repealing both the Fairness Doctrine and the Equal Time provisions. -10- CL19-11A with such questions as whether the subject is worth considering, whether the viewpoint of the requesting party has already received a sufficient amount of broadcast time, or whether there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person [or group) making the request. ' Report on Editorializing by Broadcast Licensees, 13, FCC 1246 , 1251-1252 (1949 ) . " Columbia Broadcasting v. Democratic Comm. , 412 U. S. 94 , 36 L.Ed. 2d 772 , 788 n.9 (1973 ) . Finally, Section 76. 215 provides: "No cable television system operator when engaged in origination cablecasting shall transmit or permit to be transmitted on the origination cable casting channel or channels material that is obscene or indecent. " The difficulty with the above sections of Title 47 is that they are very broad and , therefore, difficult to implement. Further, the regulations are often conflicting ; for example, the cable television operator may not censor statements made by a political candidate during a broadcast. At the same time, the operator may not transmit obscene • -11- CL19-12A • material. Thus, the programmer( s) is constantly exercising its discretion in determining how to comply with the above regulations as well as deciding which individuals may use the public access channel. It should be noted that all of the above regulations refer to decisions made by the "cable television system operator. " This reference implies that the programming decisions should be made by the franchisee. However, once again the regulations do not prohibit a nonprofit corporation from scheduling and programming the public access channel. * The courts have held that a broadcaster' s right to select the programs which will be transmitted , as well as the right to edit programs, is protected by the First Amendment. For example, in Community-Service Broadcasting, Etc. v. F.C.C. , 593 F.2d 1102, 1110 (D.C. Cir. 1978 ) the court of appeals stated: * In Columbia Broadcasting v. Democratic Comm. , supra, the Court stated that the regulations placed the right to edit with the broadcaster, who may be held accountable for its actions, rather than with the public which cannot. 36 L.Ed.2d 796. The Court did not discuss whether a nonprofit corporation or foundation could direct the programming of the public access channel. -12- CL19-13A ® " [N]oncommercial licensees are fully protected by the First Amendment . . . . "Thus the Government cannot control the content or selection of programs to be broadcast over noncom- mercial television any more than it can control programs broadcast over commercial television, in making such decisions -- which are at issue in this case -- noncom- mercial broadcasters, no less than their commercial counterparts, are entitled to invoke the protection of the First Amendment and to place upon the Government the burden of justifying any practice which restricts free decisionmaking . "* (Emphasis added. ) However , the United States Supreme Court has pointed out that the right of the public to receive uncensored viewpoints concerning issues of public importance is accorded even greater First Amendment protection: * In Community-Service Broadcasting , the court of appeals held unconstitutional an F.C.C. regulation which required noncommercial television stations receiving federal funds to record all broadcasts wherein an issue of public importance was discussed. • -13- CL19-14A "Although the broadcaster is not without pro- tection under the First Amendment, United States v. Paramount Pictures, Inc. , 334 U.S. 131, 166 , 92 L. Ed . 1260 , 68 S .Ct. 915 (1948 ) , ' [i) t is the right of the viewers and listeners , not the right of the broad- casters, which is paramount . . . . It is the right of the public to receive suitable access to social , political , esthetic, moral, and other ideas and experi- ences which is crucial here. ' " Columbia Broadcasting v. Democratic Comm. , 36 L. Ed .2d 772, 783 (emphasis added) . The Court continued: "From these provisions it seems clear that Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations. Only when the interests of the public are found to outweigh the private journal- istic interests of the broadcasters will government power be asserted within the framework of the Act. " Id. at 788 (emphasis added) . Thus, it is clear that a private broadcaster' s edit- orial discretion is protected by the First Amendment. -14- • CL19-15A • The courts have held repeatedly that governments cannot restrict speech based upon its content : " [T] he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control . Any restriction on expressive activity because of its content would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open. '" Community-Service Broadcasting , Etc. v. F.C.C. , 593 F.2d 110 , 1112 (D.C. Cir. 1978) citing Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96 , 33 L.Ed.2d 212 ( 1972) (emphasis added) . See also, Hudgens v. NLRB, 424 U.S. 507 , 47 L.ED.2d 196, 207 ( 1976) . Since governmental entities may not restrict speech based upon its content, may a governmental entity or its agent, which is responsible for programming a public • access channel, exercise the same editorial discretion as a -15- CL19-16A • private broadcaster? In Greenberg v. Bolger, 497 F.Supp. 756 (E .D. N.Y. 1980 ) the district court pointed out that the distinc- tive First Amendment protection which is accorded to private broadcasters does not support an argument that the post office, which is a governmental entity, may discriminate in the postal rates which are available to various political parties. The court stated: " [P] rivate broadcasters retain a degree of first amendment freedom to discriminate that the government does not possess. The meticulous neu- trality required of government is not demanded of private broadcasters save for the extraordinary cir- cumstances where the ' equal time' provisions are applicable. In the ordinary course of its news coverage, a private broadcaster' s obligation of neu- trality is governed by the ' fairness doctrine. ' And the ' fairness doctrine' represents an attempt to confer upon the broadcast licensee the widest possible first amendment latitude consistent with a licensee' s responsibility, given the limited number of stations that can broadcast without interfering with each other. " Id. at 777 (emphasis added) . -16- . CL19-17A • The court proceeded to hold that the postal rates were invalid because the rates discriminated against minority political parties. This opinion seems to indicate that a governmental broadcaster may not exercise the same editorial discretion as a private broadcaster. However, in Muir v. Alabama Est. Television Commission , 688 F.2d 1033 ( 5th Cir. 1982 ) the court of appeals held otherwise. The court stated that although governmental entities which exercise editorial decisions do not have First Amendment protection, such broadcasters may exercise the same editorial discretion as private broad- casters. The court stated: "The right to the free exercise of program- ming discretion is, for private licensees, not only statutorily conferred but also constitutionally pro- tected. CBS. Under the existing statutes public licensees such as AETC and the University of Houston possess the same rights and obligations to make free programming decisions as their private counterparts; however, as state instrumentalities, these public licensees are without the protection of the First Amendment . This lack of constitutional protection implies only that [the federal) government could possibly impose restrictions on these licensees which • -17- it could not impose on private licensees. The lack of • First Amendment protection does not result in the lessening of any of the statutory rights and duties held by the public licensees. It also does not result in individual viewers gaining any greater right to influence the programming discretion of the public licensees. " Id. at 1041 (emphasis added) . The opinion in Muir was the result of a consoli- dated rehearing of two separate cases arising out of the same basic facts, the refusal to broadcast a documentary program based upon the death of a Saudi Arabian princess. Ilk In Muir below, the Alabama Educational Television Commission ( "AETC" ) , a non-profit corporation, made up of nine non- commercial stations licensed by the F.C.C. , was created by statute for the purpose of supervising educational television in Alabama. The AETC cancelled the forthcoming broadcast after receiving public protest. The district court in Muir upheld the decision not to transmit the program, and the Fifth Circuit affirmed. In the other case, Barnstone v. Univ. of Houston, 514 F.Supp. 670 (S.D. Texas 1980) , a television station, which was owned and operated by a state university, refused to broadcast the same program. The district court in • -18- ' CL19-19A Barnstone stated that since the television station was owned and operated by the state, and since the "facility involved in this litigation constitutes an appropriate place for the exercise of First Amendment rights, " the television station was a public forum. The court proceeded to hold that the decision not to broadcast the program, which was based upon the program 's content , was an unconstitutional prior restraint. The district court 's decision in Barnstone was very well reasoned; however, the court of appeals reversed. In the consolidated rehearing the Fifth Circuit affirmed Muir and affirmed the prior reversal of the district court 's decision in Barnstone. The court of appeals in Muir rejected the argument that the state-owned television station was a public forum because: "The pattern of usual activity for public tele- vision stations is the statutorily mandated practice of the broadcast licensee exercising sole programming authority, the general invitation extended to the public is not to schedule programs, but to watch or decline to watch what is offered. " Id. at 1042. The court of appeals listed in footnote 24 of the • -19- CL19-20A • opinion the facilities which have been held to constitute a public forum: municipal auditoriums, bus terminals , airports , high school auditoriums, public libraries, shopping centers and welfare offices. The Fifth Circuit enunciated in Muir the applicable test to determine whether a facility is a public forum: " [s]peakers have been found to have a right of access because they were attempting to use the facility in a manner consistent with the pattern of usual activity." Id. at 1042 (emphasis added) . • As stated above, the court decided that the state-owned television station was not a public forum because "the pattern of usual activity" in such a station did not include public access. However, the court failed to distinguish the facts of Muir from the facts of Southeastern Promotions v. Conrad , 420 U.S. 546 , 43 L.Ed.2d 448 , 457 (1975) , in which the United States Supreme Court held that an auditorium leased by a municipality was a public forum and, therefore, the decision not to permit the play "Hair" to be performed was an unconstitutional prior restraint. Thus, both Muir and Southeastern Promotions involved decisions by governmental entities which prevented the presentation of the expressive works of others in a government-operated 110c. -20- • CL19-21A • facility. * Since a public access station operated by a nonprofit corporation, which was appointed by a municipality, obviously includes public access within its pattern of usual activity, such a channel would constitute a public forum even under Muir. Thus, a refusal to broadcast a program which is based upon the content of the program will be held unconstitutional unless "the speech in question is not fully protected by the First Amendment or its suppression is essential to a compelling governmental interest. " Community-Service Broadcasting , Etc. v. F.C.C. , 593 F.2d 1102 (D.C. Cir. 1978 ) . See also, Widmar v. Vincent , 454 U.S. 263 , 70 L.Ed.2d 440 , 446-448 (1981) . Due to the fact that this test is extremely • difficult to satisfy, a government-operated public access station is virtually prohibited from refusing to broadcast a program or refusing to provide access to an individual, unless the broadcaster can prove that the decision was not * The United States Supreme Court recently granted a hearing to review the Fifth Circuit 's decision in Muir , which indicates that the decision will probably be reversed. The court may reverse the decision in Muir due to the fact that the Court held that the television station was not a public forum or upon one of the other bases of that decision, which will be discussed herein. Si -21- ' CL19-22A • based upon the content of the program. After holding that the television station was not a public forum, the court in Muir then held that the decision not to broadcast the program was not governmental censorship. The court relied upon the editorial discretion conferred upon broadcasters as the basis for its holding. The problem with this reasoning is that the case to which the court cited in support of its decision, Columbia Broadcasting v. Democratic Comm. , 412 U.S . 94 , 36 L.Ed.2d 772 ( 1973) , ( "C.B.S. " ) , involved the editorial discretion of a private broadcaster. Further, the Supreme Court in C.B.S. pointed out • that: "When governmental action is alleged there must be cautious analysis of the quality and degree of government relationship to the particular acts in question." 36 L.Ed.2d 791. v After analysing the relationship between the F.C.C. and the private broadcaster, the Court in C.B.S. concluded that the private broadcaster was not an instrumen- tality of the F.C.C. and stated: • -22- CL19-23A • "Thus it cannot be said that the Government is a 'partner ' to the action of broadcast licensee complained of here, nor is it engaged in a 'symbiotic relationship ' with the licensee, profiting from the invidious discrimination of its proxy . Compare Moose Lodge No. 107 v. Irvis, 407 U.S . 163, 174-77, 32 L.Ed. 2d 627 , 92 S.Ct . 1965( 1972) , with Burton v. Wilmington Parking Authority, 365 U.S. , at 723-24 , 6 L.Ed.2d 45 . The First Amendment does not reach acts of private parties in every instance where the Congress or the Commission has merely permitted or failed to prohibit such acts. " • Id. at 793 (emphasis added) . The court then held that it was not a violation of the First Amendment for a private broadcaster to refuse to transmit editorial advertisements. Obviously, there is a tremendous difference between a private broadcaster licensed by the F.C.C. , which is not an instrumentality of government, and a governmental entity which itself owns, operates and supports a cable television station. The decision in Muir to cancel the broadcast of the program, which was based upon the content of the program, was clearly governmental censorship. The quote from a footnote in Justice Stewart 's • concurring opinion in C.B.S . , which the Fifth Circuit cites -23- • CL19-24A • in Muir in support of its argument (page 1038) , illustrates yet another reason why the court 's decision in Muir was incorrect: "Government is not restrained by the First Amendment from controlling its own expression . . . [t] he purpose of the First Amendment is to protect private expression and nothing in the guarantee precludes the government from controlling its own expression or that of its agents. " The Fifth Circuit ignores the main body of Justice Stewart 's concuring opinion, to which the above footnote • refers, which states: "The First Amendment protects the press from governmental interference; it confers no analogous protection on government. " 36 L.Ed. 2d 804 ( emphasis added in part ) . In Muir , although the university was censoring material which was to be transmitted over its own television station, the program which it refused to broadcast was not a program which had been produced by the university or by its agent. It is exactly this type of suppression, the suppression of the expression of others, which is prohibited • by the First Amendment. -24- CL19-25A • Finally , the Fifth Circuit ' s reliance upon the F .C.C. regulations as a basis for its decision is similarly misplaced. It is clear that the regulations promulgated by the F .C .C. do not override the First Amendment guarantees: "Although the broadcaster is not without pro- tection under the First Amendment, United States v. Paramount Pictures, Inc. , 334 U.S . 131 , 166 , 92 L.Ed. 1260 , 68 S .Ct . 915 ( 1948 ) , ' [ i] t is the right of the viewers and listeners , not the right of the broadcasters , which is paramount . . . . It is the right of the public to receive suitable access to social , political , • esthetic, moral , and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC . ' Red Lion, supra, at 390, 23 L. Ed . 2d 371 . " Columbia Broadcasting v. Democratic Comm. , 412 U.S . 94 , 36 L.Ed. 2d 772 , 783 ( 1973) (emphasis added) . Therefore, any editorial discretion which may be conferred upon a governmental broadcaster by the F .C.C . regulations is inferior to the protection accorded by the First Amendment to the public and to those individuals wishing to present their views. • Thus, as Judge Johnson points out in his -25- CL19-26A • dissent in Muir: S "The proper inquiry for this court, then, should not be whether the Communication Act grants state broadcasters editorial discretion, but whether the action of state officials in these cases abridged free expression protected by the First Amendment. " 688 F.2d 1033 , 1055. As stated above in Community-Service Broadcasting, supra, under the First Amendment government has no power to restrict expression based upon its content. Thus, governmental ,• broadcasters may not exercise the same editorial discretion as private broadcasters, who are protected by the First Amendment. The decision by the Fifth Circuit in Muir is incorrect. The protection accorded by the First Amendment to prevent government from interfering with free expression of ideas is not attenuated by the appointment a nonprofit corporation or foundation by the municipality to program the public access channel , because such a corporation will be deemed to be the agent of the municipality. Thus, a decision by such a corporation not to broadcast a program or to restrict the use of the public access channel is as vulnerable to constitutional attack as if the municipality has made • the decision itself. -26- CL19-27A • For example, in Southeastern Promotions, Ltd . v. Conrad, supra, the defendants were the members of a board which operated a municipal auditorium leased by the city. The members were "appointed by the Mayor and confirmed by the city 's board of commissioners. " 43 L.Ed.2d 453 n. 2. The court held that the board 's decision not to permit plaintiffs to present the play "Hair" in the auditorium was an unconstitutional prior restraint. The Court stated: "The elements of prior restraint identified in Cantwell and other cases were clearly present in the system by which the Chattanooga Board regulated the use • of its theaters. One seeking to use a theater was required to apply to the board. The Board was empowered to determine whether the applicant should be granted permission - in effect, a license or permit - on the basis of its review of the content of the proposed production. Approval of the application depended upon the board 's affirmative action. Approval was not a matter of routine; instead, it involved the 'appraisal of facts, the exercise of judgment, and the formation of an opinion ' by the board. " Id. at 456-57. Similarly, in Ill. Ass 'n v. Realtors v. Village of • -27- CWL19-28A • Bellwood, 516 F.Supp. 1067 (N.D. I11. 1981 ) , a municipality enacted an ordinance which provided that before a real estate agent could solicit listings, a permit must be obtained from the "Citizens Advisory Council . " The court held that since the council was the agent of the municipal government, the above requirements of a prior restraint , enunciated by the Court in Southeastern Promotions , were satisfied . Therefore, the ordinance was held to be uncon- stitutional. Id. at 1072. Since the directors of the nonprofit corpora- tion which programs the public access channel would be appointed by the city council , they would be the agents of • the municipality. Thus , the directors' decisions concerning programming and editing also would be vulnerable to consti- tutional attack. CONCLUSION: As stated above, compliance by cable television broadcasters with the applicable conflicting statutes and regulations are difficult. Further, broadcasters are often involved in editing and programming decisions which may result in denial of access to the public access channel or refusal to broadcast a particular program. In such a case it would be easy for the plaintiff to allege that the denial was based upon the content of the program. Thus, without the private broadcasters' First Amendment protection • -28- CWL19-29A • of such editorial decisions , municipalities which program an access channel are extremely vulnerable to a legal challenge. In such a case the plaintiff could request injunctive relief and damages under the Civil Rights Act. Thus, the franchisee, who has First Amendment protection, should make all programming and editing decisions concerning the public access channel . • • -29-