The Idaho legislature in 2000 adopted certain content restrictions and programming monitoring requirements for Idaho public television as a reaction to the presentation of programming that legislators considered too sympathetic to the homosexual lifestyle. The movement to impose content restrictions began after the Idaho Educational Public Broadcasting System (IEPBS) broadcast the documentary "It’s Elementary: Talking About Gay Issues in School."

    Supporters of the legislation also complained about other public television programs, including a dramatization of Madame Bovary, a documentary that "brutally attacked" the use of public lands for grazing, and the PBS documentary "Culture Shock" that depicted century-old controversies caused by French impressionist art. See Steve Behrens, "Idaho likely to ban programs that ‘support’ lawbreaking," Current, April 3, 2000. In response, the legislature adopted restrictions as part of the appropriations bill for Idaho Public Television for fiscal year 2001. In brief, Idaho House Bill 768 restricts IEPBS by prohibiting the broadcast of any program "which promotes, supports or encourages violation of Idaho criminal statutes." The law also provides that "[a]ny decision to broadcast programs expected to be of a controversial nature, including programming format," must be monitored by the State Board of Education, which is required to report to the Joint Finance-Appropriations Committee of the legislature. 2000 Idaho Sessions Laws Ch. 475 (H.B. 768). Under the governing policies and procedures adopted to implement the legislature’s restrictions, IEPBS must follow written procedures for selecting programming, subject to prior approval of the State Board of Education. IEPBS also must submit its monthly programming decisions to the board for advance review. In addition, IEPBS is required to broadcast daily warnings that some programming may show acts that violate Idaho criminal law and other daily warnings suggesting that, due to the potentially controversial nature of some programs, families should exercise discretion as to what to view. Finally, IEPBS is required to keep records and provide quarterly reports detailing what programs have been broadcast in content categories favored by the law. The restrictions are scheduled to expire at the end of the fiscal year, in mid-2001, and IEPBS chose not to initiate a legal challenge in the interim. However, the restrictions have raised important legal questions, the significance of which will increase if other states follow Idaho’s example.

    Federal broadcasting law is predicated on serving the public interest by maximizing the editorial freedom of broadcast licensees. In addition, federal policies underlying the promotion of public broadcasting include maximizing diversity by promoting "freedom, imagination and initiative on both local and national levels," 47 U.S.C. Sec. 396(a)(3); encouraging the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences, id. at Sec. 396(a)(6); and insulating programming decisions from political control, id. at Sec. 398(c). Under the Supremacy Clause of the U.S. Constitution, a state law is preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). In the matter of H.B. 768, it is difficult to reconcile the law with federal policy since the Idaho legislature adopted it for the sole purpose of inhibiting the editorial choices of IEPBS. The command of H.B. 768 to ban programming that "promotes, supports or encourages violation of Idaho criminal statutes" and to monitor "programs expected to be of a controversial nature" is incompatible with the goal of the Public Broadcasting Act, to "encourage the development of programming that involves creative risks and that addresses the needs of unserved and underserved audiences." 47 U.S.C. Sec. 396(a)(6).

    As a plurality of the U.S. Court of Appeals for the District of Columbia Circuit warned when it struck down a federal requirement to record programs on noncommercial educational stations that touched on issues of public importance, the "[m]ere passage of a statute which clearly serves the purpose of allowing government officials to review program content on a program-by-program basis and does not clearly serve any other legitimate purpose is reason enough for local licensees to fear and to dilute their public affairs coverage." Community-Service Broadcasting of Mid-America v. FCC, 593 F.2d 1102, 1116 (D.C. Cir. 1978) (en banc) (plurality op.). It is also difficult to reconcile the Idaho restrictions with the federal goal of supporting a nationwide system of public broadcasting. In creating the Corporation for Public Broadcasting, Congress specifically excluded any federal agency or officer from interfering with the "content or distribution of public telecommunications programs and services." 47 U.S.C. Sec. 398(c). The underlying premise of the statutory scheme was that public television was to be free of partisan federal control and subject only to the Federal Communications Commission’s periodic public interest review of programming decisions.

    Though silent as to state interference, federal law suggests that Congress preempted the field as to interference by partisan legislatures. E.g., Allen B. Dumont Labs, Inc. v. Carroll, 184 F.2d 153, 156 (3d Cir. 1950) (the fact that the Communications Act states only that the FCC lacks the power of censorship "does not mean that the States may exercise a censorship specifically denied to the Federal agency"); State v. University of Maine, 266 A.2d 863, 866 (Me. 1970) ("when Sec. 326 forbade Commission censorship, that did not mean that the states were left free to censor, since Congress had fully occupied the field").

    If the law were otherwise, the nationwide system of public television stations and programming envisioned in the Public Broadcasting Act could be compromised. Programming distribution would either become balkanized on a state by state basis, or else a national system would be constrained to produce only that programming acceptable to the least-common-denominator states.

    The Idaho restrictions also raise significant First Amendment questions. Free expression principles govern the operation of noncommercial educational broadcasters even when state entities are the licensees. While all broadcast licensees, public and private, are subject to federal licensing requirements, there arises the question of whether the First Amendment may constrain a state government’s actions to restrict speech and to impose a system of prior restraint.

    The constitutional question is complex, because it would force a reviewing court to reconcile the basic concept that the government may control its own speech with the bedrock principle that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). In this regard, the U.S. Supreme Court and lower courts have demonstrated a general hostility toward government measures that serve no purpose but to restrict speech. In FCC v. League of Women Voters, 468 U.S. 364 (1984), for example, the Supreme Court struck down a ban on editorializing by noncommercial licensees even though it noted that at least two-thirds of the public television stations in operation were licensed to state broadcasting authorities, state universities or educational commissions, local school boards, or municipal authorities. The Court found that the rule prohibited a wide range of speech by wholly private stations, and reserved for another day the question of whether a restriction focusing only on state and local governmental licensees would survive constitutional scrutiny. Id. at 394-95.

    Although the Supreme Court has upheld certain limitations on speech in government-funded programs, e.g., Rust v. Sullivan, 500 U.S. 173, 196-99 (1991), it also has acknowledged that government funding cannot sustain all such restrictions. Thus, the Court has recognized other limits on governmental authority to restrict speech in its own institutions. It has noted, for example, that "the university is a traditional sphere of free expression so fundamental to the functioning of our society that the government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment." Id. at 200. Cases decided by lower courts also underscore the First Amendment tensions created by the Idaho restrictions. For example, in Brooklyn Institute of Arts & Sciences v. City of New York, 64 F. Supp. 2d 184 (E.D.N.Y 1999), the district court held that the city could not withhold appropriated funding from a museum displaying an exhibit offensive to the mayor and many others. The core holding was that "denial of a benefit, subsidy or contract [that] is motivated by a desire to suppress speech" violated the First Amendment. Similarly, in Cuban Museum of Arts & Culture, Inc. v. City of Miami, 766 F. Supp. 1121 (S.D. Fla. 1991), the district court held that the city could not refuse to renew a lease -- even in the absence of a contractual right of the museum to a renewal -- based on disagreements about what artists to exhibit.

    Moreover, in American Council of the Blind v. Boorstin, 644 F. Supp. 811 (D.D.C. 1986), the district court ordered the Librarian of Congress to resume translating Playboy magazine into Braille. The Librarian had halted such translation when Congress had withheld the exact amount needed for the translation from the annual appropriations bill. As in Idaho, the only reason given for the censorship by Congress was disagreement with the content of the speech.