Public TV Faces Spotlight Analysts Question Unprecedented Move To Control Programming

No state except Idaho has tried to regulate public television programming.

Prompted by the airing of a controversial documentary about issues relating to homosexuality, lawmakers enacted programming restrictions earlier this year.

And a recent Idaho attorney general’s legal analysis of the Legislature’s move concludes the question of free speech is not involved.

If lawmakers want to order Idaho Public Television to air reruns of “Magnum P.I.” instead of “Masterpiece Theater,” the attorney general argues, they’d have every right to do so.

“Public television is the government speaking,” said Deputy Attorney General Kevin Satterlee. “The legal authority of the Legislature to do that clearly exists.”

The case raises legal issues that are attracting attention across the country as Idaho’s state Board of Education moves to comply with the new public TV restrictions.

“If state legislatures across the country could program their public television stations, they would probably be doing it, and doing it in droves,” said Robert D. Richards, a law professor at Pennsylvania State University and a First Amendment expert.

“This is really the first such case I’ve heard of, of the Legislature trying to step in and really dictate what can be on the air and what cannot be on the air,” Richards said.

The Idaho Legislature’s Joint Budget Committee tied strings to the public television budget this year. The restrictions ban the showing of any program that encourages violation of state criminal laws, and require the Board of Education to monitor programming that’s expected to be controversial.

Idaho law makes sodomy a crime.

If the state Board doesn’t comply with the Legislature’s directive, it would technically be guilty of misappropriation of public funds, Satterlee said, for spending public money in a way that doesn’t match the law.

Although only 28 percent of Idaho Public TV’s $5.6 million budget comes from the state, the restrictions apply to the TV network’s spending as a whole. That’s because the Legislature has to approve spending by state agencies, even if the money comes from elsewhere. Most of the TV network’s money comes from private donors. About a sixth comes from the federal government.

A coalition of media groups warned lawmakers in a letter last spring that passing a law to limit TV programming would violate the First Amendment to the U.S. Constitution, a contention Satterlee dismisses.

Attorney Debora Kristensen, who co-authored the letter on behalf of the state’s newspapers and broadcasters, said she’s still convinced the law raises First Amendment concerns, as well as other legal problems.

“So far, I haven’t seen any cases where the government itself has been able to come in and dictate the type of programming that public broadcast stations can run,” she said. “It would just defeat the purpose of public broadcasting in the United States.”

When Congress set up the public broadcasting system, it created the non-profit Corporation for Public Broadcasting as a “heat shield” between itself, as the funder, and the broadcast operations themselves, according to Marilyn Mohrman-Gillis, vice president of America’s Public Television Stations, an association of stations.

“That’s how it works on the federal level,” she said, and many states have set up similar arrangements.

“That is, from a policy perspective, an appropriate structure to prevent the direct influence of content by a state entity that is funding public broadcasting,” she said.

Jack Van Valkenburgh, director of the Idaho American Civil Liberties Union, said the separation of programming from political influence is what makes American public broadcasting different from government-run networks in some nations that act as vehicles to deliver the government’s spin on news events.

“I think the state board should be careful and cautious about trying to move Idaho Public Television toward greater state control, as opposed to greater freedom,” Van Valkenburgh said.

“It not only undermines the quality of our public television service, and conflicts with the founding purposes of the Corporation for Public Broadcasting, but reflects a frightening willingness to subvert the very freedoms on which this country was founded.”

Van Valkenburgh said his greatest concern is “that free speech be protected.”

But Satterlee said the First Amendment’s free-speech guarantees aren’t at issue. Those guarantees do come into play when the government provides public forums, like permits to parade down Sherman Avenue in Coeur d’Alene, he said.

“But when the government itself is speaking, those rules don’t apply,” Satterlee said.

If they did, he said, the government couldn’t post a billboard advocating seat belt use, or publish a public health brochure, without giving equal time to dissenters.

“The Supreme Court is pretty clear on that doctrine,” Satterlee said. “It’s not a gray area.”

Richards noted that all the case law on that issue, however, involves members of the audience seeking access to the airwaves on First Amendment grounds. It doesn’t involve the legislative arm of government making laws governing programming.

“This type of legislative control would set a dangerous precedent for public broadcasting,” he said. “What the proponents of the Idaho legislation are trying to do is control the broadcast of controversial political issues, which would be unprecedented abuse of legislative power.”

Kristensen said an argument that everything broadcast on public TV is government speech overlooks the fact that much of the funding for the programs is private.

Satterlee noted that other legal requirements, from federal laws to the Idaho state Constitution, limit the Legislature. It can’t spend public funds for partisan political activities, for example, or to promote a particular religion.

Critics of Idaho’s new law also charge that it conflicts with the federal Communications Act, which created the Corporation for Public Broadcasting. The CPB is currently reviewing that, and if a conflict is found, IPTV’s federal grant could be endangered.

But Satterlee said, “I can’t find any conflict, and I have been in contact with attorneys in Washington, D.C., who do this kind of work every day.”

These sidebars appeared with the story: WHAT’S NEXT Meeting ahead

Idaho’s state Board of Education has unanimously adopted new policies requiring frequent disclaimers to be aired on public TV. The disclaimers say programs aren’t intended to encourage criminal acts and that viewers should use discretion. The policies also require advance monitoring of programming decisions by the board. If no member objects at the board’s August meeting, the new policies will take effect.

Conflicting cases

Various court decisions are being cited by the Idaho attorney general and other attorneys who’ve looked at the issue of program restrictions on public television. Here are some of them:

In Knights of the Ku Klux Klan vs. Curators of the University of Missouri, the 8th Circuit U.S. Court of Appeals ruled that the university could prevent the KKK from underwriting a program on public radio. The KKK had sought access on free-speech grounds, saying the university couldn’t keep its name off the air just because it disagreed with the group’s views. The court said the sponsor announcements constituted “governmental speech,” and the university could exercise editorial discretion on what it chose to air. The attorney general cites this February 2000 case, though the Idaho ACLU’s Jack Van Valkenburgh contends it applies only to sponsorship announcements.

In Rust vs. Sullivan, doctors in family planning clinics challenged a congressional directive that no abortion counseling be offered as part of a federally funded program. Free speech was among the doctors’ grounds for suing. The U.S. Supreme Court ruled against the doctors in 1991, saying free speech wasn’t restricted. Congress, it said, “merely chose to fund one activity to the exclusion of another.” The court noted that the doctors could still exercise their free speech outside the federally funded program. The Attorney General cites this case.

In Community Service Broadcasting of MidAmerica vs. FCC, the District of Columbia circuit of the U.S. Court of Appeals overturned a federal law that required public radio and TV stations that receive federal funds to make audio recordings of all broadcasts “in which any issue of public importance is discussed.” The court said the law “presented the risk of direct governmental interference in program content,” which it said violated both the first and fifth amendments to the U.S. Constitution. Debora Kristensen, a Boise attorney and media lobbyist, cites this 1978 case, as does Van Valkenburgh.

In Muir vs. Alabama Educational Commission, the 5th Circuit U.S. Court of Appeals ruled that public station managers enjoy the same rights as managers of commercial stations in determining what programs get on the air. Robert Richards, a Pennsylvania State University law professor and First Amendment expert, cites this 1982 case.

In Arkansas Educational Television Commission vs. Forbes, the U.S. Supreme Court ruled that public television station managers can decide which political candidates to include in debates, as long as no candidates are excluded because of their views. That ruling meant public television is not a “public forum,” where anyone can speak. Richards cited this 1998 case to show that programming authority rests with station managers, while the Attorney General’s Office dismissed it as irrelevant.

In Rosenberger vs. University of Virginia, the U.S. Supreme Court ruled against the university, which had denied funds to a student newspaper with a Christian editorial viewpoint. Though the university was providing public funds, the court said the newspaper wasn’t government speech, so the university couldn’t discriminate on the basis of what viewpoint was expressed. Van Valkenburgh cited this 1995 case.