Although a university may afford its student newspaper virtually unfetterededitorial freedom, the same cannot always be said of its student broadcastmedia. As the Supreme Court has said:
Balancing the various First Amendment interests involved inthe broadcast media…is a task of great delicacy and difficulty. The processmust necessarily be undertaken within the framework of the regulatory schemethat has evolved over the course of the past half century.[1]
This “delicate balance” is perhaps nowhere more evident than on America’spublic college and university campuses where student journalists workingon school radio or television broadcast stations face very different hurdlesregarding the exercise of their free press rights than their print-basedcounterparts.[2]
In most cases, for example, the school’s board of regents or the universityitself will hold the broadcast license for the station, making them ultimatelyresponsible before the Federal Communications Commission (FCC) for anyregulatory violations.[3] Yet even with the university’sconcern over its responsibilities as licensee, the First Amendment rightsof the students working at the station must be factored in. Courts consistentlyhave held that at public educational institutions, the First Amendmentlimits the ability of college and university officials to control the contentof student media.[4] It is this dichotomy betweenstudent editorial control and university control as licensee that can raisesignificant — and complex — First Amendment issues, some of which havenot been fully settled.
Role of FCC Licensee
Even where university officials want to allow their students greatercontrol over the school radio or television station, the FCC still requiresthat the licensee of the station exercise a minimum degree of oversight.The FCC has ruled that while a licensee can delegate much of the day-to-dayresponsibilities to others, it cannot wholly insulate itself from suchresponsibility. For example, in the late 1970s the FCC revoked the licenseof a radio station at the University of Pennsylvania after finding thatthe school had abdicated allof its responsibility to supervise andcontrol the station to students, which, in this case, resulted in allegationsregarding the broadcast of obscenity, the use of drugs and alcohol at thestation and various technical violations that caused interference withother radio and television stations.[5] Still,the Commission recognized student-operated stations as valuable “educationalresources.” Noting that most such university stations had operated foryears without problem the Commission stated it did not “wish to discourageuniversity licensees from operating student-run stations.”[6]
While a system of “shared responsibility” could work, the Commission found,University of Pennsylvania officials had gone too far. “Its abdicationwas total,” the Commission ruled, “and cannot be tolerated….”[7]
About ten years later, in an unreported case involving the Universityof California at Santa Barbara (UCSB), the Commission apparently founda balance it liked, ruling that a “hands-off” policy in the context ofUCSB’s student-run station was “workable.”[8] TheCommission accepted the school’s policy that university officials had theright to control or punish students for playing content that violated FCCregulations, such as the ban on indecency. However, the policy prohibitedofficials from controlling content that did not violate FCC regulationseven where school officials disagreed with or found the content otherwiseoffensive.[9] The Commission’s ruling indicatesthat where a licensee retains sufficient oversight and takes meaningfulsteps to ensure that there are no violations of FCC regulations, universitiesshould be able to turn over the day-to-day operation of the station tostudents.
Forum Analysis
While the UCSB case prescribes what may be the lower limits of editorialcontrol an FCC licensee can safely exercise over student-operated stations,no court has ever directly addressed the question of where the upper boundariesmight lie. In other words, how much editorial control — or censorship– can a public university, as licensee, exercise over the programmingof a student-run broadcast station when its actions are at odds with thestudent operators of the station?
In cases not involving “student-run” stations, courts have allowed governmentofficials to exercise some control over editorial content, although theyhave required that the degree of such control be considered in the contextof the type of forum involved.
Very briefly, the Supreme Court has recognized three types of governmentforums for speech: (1) the traditional forum, (2) the public forum createdby government designation (also known as a limited public forum) and (3)the nonpublic forum. For the Court, the distinction between a public forumand a limited or nonpublic forum has usually been analyzed in terms ofgeneral versus selective access.[10]
In traditional public forums, such as streets and parks where thereis an established tradition of the property being “devoted to assemblyand debate” by the general public, the government can prohibit speech onlyin extraordinary circumstances and only in a content-neutral manner, whichincludes reasonably controlling when, where and how the speech is disseminated.[11]
On the other hand, the government creates a limited public forum whenit purposely “makes its property generally available to a certain classof speakers.”[12] Alternatively, the governmentmay open the forum “…for use by certain speakers, or for the discussionof certain subjects.”[13] Those who do not fallwithin the prescribed class of speakers may be reasonably excluded. Wherean individual does fall within the class of speakers for which the limitedpublic forum was created, however, the government’s ability to controlthe speech within that forum is significantly restricted.
Finally, where the government merely reserves access for a class ofindividuals who must ask permission to use the forum, a nonpublic forumis created.[14] While access to a nonpublic forumcan be restricted simply upon a showing that the restrictions are reasonable,the government violates the First Amendment if it denies access merelybecause it opposes the speaker’s view.[15]
In fact, most public university stations — including those that are”student-operated” — would be categorized as either limited or nonpublicforums. In such cases, the First Amendment protections available to studentsworking at those stations would depend on the station’s actual policesand practices. For example, as in the UCSB case, some stations specificallycharge students with the responsibility for deciding what news or programsare to be aired. A strong argument could be made in such cases that thestation operates as a limited public forum for speech by the student operators.As such, the ability of school officials to regulate otherwise lawful studentprogramming would be extremely limited. Other stations are managed by non-student employees who may serve as station managers or program directors. The degree of control exercised by these individuals differs, and the forum status of such stations would likely vary accordingly. At other stations, students may be cast more in the role of interns who have little, if any, say in deciding what is aired.
The bottom line is that administrative oversight — if it goes too far– will almost certainly weaken the forum status of the station and, byextension, the First Amendment protections available to students wishingto exercise editorial control at the station.
Judicial Balancing
The First Amendment exists to prevent government censorship of speech.In the case of public broadcast stations, including university-licensedstations, the government is occasionally, it seems, put in the dual andcomplicated role of being both speaker and censor, and courts are leftto try and sort things out.[16]
In one of the first cases to tackle the issue, Muirv. Alabama EducationalTelevision Commission,[17] the U.S. Court ofAppeals for the Fifth Circuit rejected a First Amendment claim by viewersand upheld the authority of two state-owned public television stations,neither of which were student-run or operated, to refuse to air a controversialprogram. The court found that the public television stations at issue werenot supposed to function as “a pure marketplace of ideas.” Therefore, asa nonpublic forum, the state could regulate content “in order to preventhampering the primary function of the activity.”[18]
The Muir court’s decision heavily influenced a later ruling in Schneider v. Indian River Community CollegeFoundation.[19] The case involved a noncommercial, educational station licensed to the Board of Trustees of Indian River Community College. The station employed a full-time station manager and program director as well as other paid staff, some of whom taught at the college. The paid staff was “assisted”by student interns. Nothing in the record suggests that the students exercisedany control over the station’s programming. The station manager and programmingdirector sued the school, claiming that the community college’s presidentviolated their First Amendment rights by engaging in censorship and priorreview of the station’s programming.[20]
In finding for college, the court wrote that “the degree of controlwhich can be exercised consistently with the First Amendment depends onthe mission of the communicative activity being controlled.”[21] The president of the college regularly monitored the commentary that went on the air. He also exercised his opinion about what upcoming events could be covered by the radio station. As in Muir,the court found that the station was “not designed to function as a pure marketplace of ideas.”[22]
Moreover, the court said it was the First Amendment rights of the FCC licensee– in this case the college trustees — that were protected by the FirstAmendment and not the rights of the employees.[23]Because the station was not operated as a “public access” broadcaster,the trustees’ control of the programming did not violate the First Amendmentrights of the employees.[24] The court said thatalthough the making of content-based decisions by government institutionsis “ill-advised,” it “does not warrant judicial scrutiny.”[25]
Finally, in a more recent decision, the Supreme Court held that a statepublic television broadcaster’s decision to exclude a “fringe” congressionalcandidate from a televised debate was a reasonable, viewpoint-neutral exerciseof journalistic discretion and therefore did not violate the First Amendment.[26] The case largely followed the sort of reasoning used by both the Muirand Schneidercourts, finding that the political debates were nonpublic forums.
Although all three of these cases allowed the state-owned stations tocontrol content, they make clear that a court is obligated to first examinethe forum status of the speech at issue. In that sense, they can all bedistinguished from the situations faced by many student-run radio and televisionstations. For example, the stated mission of many student-run stationsis to provide a forum for student news and opinion on the university campus.Moreover, at some stations, student program or news directors have beencharged with the day-to-day task of deciding what is aired. Both factorscould weigh heavily in the judicial balance.
Indeed, the Muir court actually cites a landmark student presscase to suggest that not all public broadcast stations are necessarilycreated equal. While a college or university is not required to open itsbroadcast station to student news and opinion, once it does, the FirstAmendment may prevent school officials from casually taking away theirmicrophones.
Standard First Amendment doctrine condemns content controlby governmental bodies where the government sponsors and financially supportscertain facilities through the use of which others are allowed to communicateand to exercise their own right of expression.[27]
This view of student-run stations as protected forums has been supportedby various commentators who have argued that when a state, operating asa licensee, opens itself up for others to use, the ability of the state,in this case the university, to regulate content should be limited. Asone writer noted, “The state has a great deal of discretion in its initialdecision to delegate editorial responsibility, but once it has been delegated,the state ‘cannot selectively intervene to delete material or disciplineeditors.'”[28] The state licensees should notbe able to require a departure from the normal editorial process and makedecisions that are politicized or ad hoc.[29]If the government’s “sole purpose was to suppress speech, the government’sdecision would become presumptively unconstitutional.”[30]
So far, most of the public broadcast cases heard by courts have involvedclaims of censorship by outsiders or station employees. Student staff membersare not outsiders; and unlike the analysis in traditional employee speechcases, the Court has generally been very protective of campus speech. Asthe Supreme Court has said, “the college classroom and its surroundingenvirons is peculiarly the marketplace of ideas…[a]nd the vigilant protectionof constitutional freedoms is nowhere more vital than in the communityof American schools.”[31] Therefore, where aninitial showing can be made that a university-licensed broadcast stationhas opened itself as a forum for expression by student staff members andwhere it can be demonstrated that allowing such expression can be accomplishedin a way that does not violate FCC rules, it is certainly reasonable toconclude that the balance — albeit the very delicate balance — wouldlikely tip in favor of the students.
1 Columbia Broadcasting System, Inc. v. Democratic National Committee,412 U.S. 94, 101-102 (1973).
2 It is important to note that the court rulings described here only apply to broadcast radio and television stations. Closed circuit or Internet-based media are not subject to FCC regulations or licensing and thus should receive the same First Amendment protections provided to print media. Cable stations are subject to some FCC regulation, though generally less than broadcast stations.
3 See, e.g., Alabama Educational Television Commission,50 FCC 2d 461 (1975).
4 See generally Antonelli v. Hammond,308 F. Supp 1329 (D. Mass. 1970), Bazaar v. Fortune,476 F.2d 570, aff’d en banc with modification, 489 F.2d 225 (5th Cir. 1973)(per curiam), Joynerv. Whiting,477 F.2d 456 (4th Cir. 1973). Private schools, because they are not government organizations, are not limited by these same constraints.
5 Trustees of the University of Pennsylvania,69 F.C.C.2d 1394, paras. 23-38 (1978), recon. denied,71 F.C.C.2d 416 (1979) (WXPN).
6 71 F.C.C.2d at 421.
7 71 F.C.C.2d at 428.
8 “KCSB-FM responds to FCC investigation,” Student Press Law Center Report28-31 (Fall 1987).
9 See id. To ensure students did not violate FCC regulations, officials provided the station employees with written guidelines and on-site training.
10 See Jersawitz v. People TV,71 F. Supp.2d 1330, 1340 (N.D. Ga. 1999). See also, Arkansas Educational Television Commission v. Forbes,523 U.S. 666, 677-79 (1998).
11 See Perry Education Association v. Perry Local Educators’ Association,460 U.S. 37, 45 (1983).
12 Arkansas Educational Television Commission v. Forbes,523 U.S. 666 (1998).
13 Cornelius v. NAACP Legal Defense and Education Fund Inc.,473 U.S. 788, 802 (1985).
14 See id.
15 Id. at 806.
16 See, e.g., Arkansas Educational Television Commission v. Forbes,523 U.S. 666 (1998)(public television station permitted to exclude “fringe” political candidate from televised debate); Knights of the Ku Klux Klan v. Univ. of Missouri,2000 U.S. App Lexis 2274 (8th Cir., Feb. 17, 2000)(no First Amendment right to sponsor public radio station programming and have underwriter’s message read over the air); Aldrich v. Knab,858 F.Supp. 1480 (W.D. Wash. 1994)(university-licensed station’s policy prohibiting criticism of station violates First Amendment).
17 688 F.2d 1033 (5th Cir. 1982), cert. denied,460 U.S. 1023 (1983)(en banc), cert. denied, 460 U.S. 1023 (1983).
18 Muir, 688 F.2d at 1050.
19 Schneider v. Indian River Community College Foundation, Inc.,875 F.2d 1537, 1541 (11th Cir. 1989).
20 See id. at 1540-42.
21 Schneider,875 F.2d at 1541 (citing Muir, 688 F.2d at 1050).
22 See id. at 1541.
23 See id.
24 See id.
25 Id. at 1541 (citing Muir, 688 F.2d at 1052-53).
26 Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).
27 Muir, 688 F.2d at 1043 (citing Bazaar v. Fortune, 476 F.2d 570, 574 (5th Cir. 1973)(public university officials did not have authority to censor student literary magazine recognized as forum for student expression simply because the school provided financial support and administrators disapproved of the content).
28 See Linda L. Berger, Note: Government-Owned Media: The Government as Speaker and Censor, 35 Case W. Res. 707, 737 (1985)(citing Canby, The First Amendment and the State as Editor: Implications forPublic Broadcasting,52 Tex. L. Rev. 1123, 1148 (1974)).
29 See id.at 740-41.
30 Id. This principle was adopted by the dissenting opinions in Muir, 688 F.2d at 1060 (Reavely, J., dissenting).
31 Healy v. James,408 U.S. 169, 180 (1972). See also, Rosenberger v. Rectors and Visitors of the Univ. of Virginia, 515 U.S. 819, 836 (1995)(describing college and university campuses as one of the vital centers for the nation’s intellectual life).