In a series of investigative articles published in the online magazine Salon.com, it was revealed that the White House Office of National Drug Control Policy (ONDCP) had used its authority and spending power under the National Youth Anti-Drug Media Campaign to insert anti-drug messages into prime time television programs, magazines, and theatrical films. The disclosures led to international press coverage and investigations by Congress and the Federal Communications Commission.

    In 1997 Congress enacted the National Youth Anti-Drug Media Campaign Act, 23 U.S.C. Sec. 1802, to fund the purchase of public service announcements (PSAs) to combat youth drug use in the United States. The Act required broadcast networks that accepted PSAs to provide a 100-percent pro bono match of air time designated for anti-drug ads. The result was a five-year, $1-billion media campaign that ONDCP described in a 1998 press release as "the largest and most complex social-marketing campaign ever undertaken." According to a subsequent report in Salon.com, one important catalyst for the program was a desire by Drug Czar Barry R. McCaffrey to halt local ballot initiatives approving the medical use of marijuana. Daniel Forbes, "Fighting ‘Cheech and Chong’ medicine," Salon.com, July 27, 2000.

    At some point after the program went into effect, ONDCP and the media company participants agreed to substitute approved anti-drug messages in programming in place of the free PSAs contemplated at the beginning. Salon.com reported that under this program, government officials and their contractors began approving, and in some cases altering, the scripts of shows before they aired in order to conform to the government’s program goals.

    ONDCP reportedly used a numerical formula to assign a financial value to the anti-drug messages that appeared in each program: Half-hour programs that presented an approved theme received three "credits," or the value of three 30-second ads, while hour-long programs received five credits. The value of the credits depended on the ratings of the program that presented the approved message, creating an incentive to alter the story lines of the most popular programs. Daniel Forbes, "Drug Money," Salon.com, Jan. 13, 2000.

    Broadcast networks received approximately $25 million worth of credit for time that under the law would have been devoted to anti-drug public service announcements. The Salon.com article named "Beverly Hills 90210," "ER," "Chicago Hope," "Sports Night," "7th Heaven," "The Wayans Bros.," "Cosby," "The Smart Guy," and "Home Improvement" as among the shows that received credit for approved themes. The story noted that almost none of the producers and writers who crafted the anti-drug episodes were aware of the deal.

    In a subsequent report, Salon.com revealed that at least six major magazines had submitted anti-drug articles (after initial publication) to ONDCP in an attempt to qualify for funds under the same program. The magazines named were U.S. News & World Report, Sporting News, Family Circle, Seventeen, Parade, and USA Weekend. Daniel Forbes, "The drug war gravy train," Salon.com, March 31, 2000. Finally, last summer, ONDCP sought to expand the program to include theatrical films. "White House enlisting Hollywood in war on drugs," CNN.com, July 11, 2000.

    Media reaction to the revelations of ONDCP’s activities was widespread and, predictably, mixed. Two examples, published the same day in the Washington Post, were fairly representative of the range of opinion. Marjorie Williams asked if it is "really so alarming that Uncle Sam is undermining the creative integrity of ‘Sabrina the Teenage Witch?’" Marjorie Williams, "... But really, what was sold?" [op-ed], Washington Post, Jan. 21, 2000, at A29. She concluded that "the propaganda in question here was distinctly benign" because drug use "is one of the few uncontested zones in our perennial culture wars."

    Charles Krauthammer, on the other hand, wrote that the big deal is that the government "has the power to tax, audit, subpoena [and] imprison" and that in a system "where liberty is preserved by the separation and diffusion of power, we rightly refuse to grant government even more power through control of the content of free media." Charles Krauthammer, "A network sellout..." [op-ed], Washington Post, Jan. 21, 2000, at A29. He also asked whether such tactics might not be applied to "equally worthy messages" about gun control, youth violence, recycling, ethnic tolerance, or charitable giving.

    In a similar vein, the Washington Post editorialized shortly after the story surfaced:

[W]e happen to agree with the spin, and the idea of sitcoms and television dramas carrying anti-drug themes seems healthy. But where does it end? Could the government pay the networks to slip idle comments into "ER" about the virtues of a particular health care policy? "Drugs, TV and propaganda" [edit.], Washington Post, Jan. 15, 2000, at A24.

The press reports prompted congressional oversight hearings in both the House and Senate. The most critical assessment of the program was voiced by Chairman Billy Tauzin (R-La.) of the House Subcommittee on Telecommunications. While generally praising ONDCP’s efforts to reduce drug abuse as "not only admirable, but extremely necessary," he sharply questioned its tactics in implementing the anti-drug awareness program:

[I]f that program is now being used to allow government for any good reason to determine the political correctness of speech on our networks, and then to award those who politically correctly speak as opposed to those who don’t with an indirect cash benefit, I think we have stepped incredibly far and hard upon the First Amendment. I have compared it to a situation where the governor or a president might read the newspapers each day, and if he liked the columns, they spoke well of him, then he authorized some kind of cash benefit, some tax credit. Statement of Chairman W.J. "Billy" Tauzin, "The White House, the networks and TV censorship," Hearings before the Subcommittee on Telecommunications, Trade, and Consumer Protection of the Committee on Commerce, Feb. 9, 2000, at 2-3.

 

    No official action was taken by the various congressional oversight committees. However, ONDCP announced that it would discontinue the practice of reviewing scripts in advance before authorizing financial credits for approved programming.

    The FCC also investigated whether the receipt of funds by broadcast networks violated the Communications Act. Section 508 of the Communications Act requires producers of programs who receive money or other valuable consideration for the inclusion of matter in a program to report its receipt to the licensee over whose facilities the program is broadcast. 47 U.S.C. Sec. 508. Section 317 of the Act requires broadcast licensees to announce when matter in a program is paid for, and by whom. 47 U.S.C. Sec. 317.

    The Commission concluded that the financial credits provided by ONDCP clearly were "consideration" under the law, but that in most cases the payments were not yet "paid or promised, charged or accepted" at the time the programs were broadcast. Rebroadcasts of shows for which credit had been previously given presented a more difficult question, and the FCC found that "in those cases sponsorship identification is required." It cautioned the networks to provide such identification in the future, but declined to issue sanctions because of "the complexity of this situation." Letter from David H. Solomon to Thomas W. Dean, Litigation Director, NORML Foundation, DA 00-2873 (rel. Dec. 22, 2000).

    There is no question but that ONDCP’s purchase of PSAs was well within the government’s legitimate authority. Freedom of speech "does not mean that government must be ideologically ‘neutral,’" or "silence government’s affirmation of national values," or prevent government from "add[ing] its own voice to the many that it must tolerate." Laurence Tribe, American Constitutional Law 588, 590 (1978). But by mixing its own message with that of private speakers, the ONDCP program raised more complex constitutional questions.

    Justice Scalia (when serving on the court of appeals) noted that "[i]t may well be that threat and thus suppression would be the consequence of a scheme for systematic review of books and films by an official evaluator, in order that the government may label their content approved or condemned." Block v. Meese, 793 F.2d 1303, 1306, 1314 (D.C. Cir. 1986). Similarly, as Justice Robert Jackson wrote over half a century ago, the First Amendment was intended to "foreclose public authority from assuming a guardianship of the public mind," and from "protect[ing] the public against false doctrine." Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring).

    Without a doubt it would violate the First Amendment if the government adopted a rule requiring broadcasters to include anti-drug messages in prime-time programming. Turner Broadcasting System v. FCC, 512 U.S. 622, 650 (1994) ("the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered"). The question raised by the ONDCP program is whether less coercive means of exerting influence raise similar concerns.

    It has long been held, for example, that when government subsidizes private speech it may not favor some viewpoints or ideas at the expense of others. Hannegan v. Esquire, Inc., 327 U.S. 146, 149 (1946) (the postmaster general may not deny subsidies to certain periodicals on the ground that they are "morally improper and not for the public welfare and the public good"). Nor may the government condition tax exemptions on a person’s agreement to utter approved speech, Speiser v. Randall, 357 U.S. 513, 519 (1958), or otherwise engage in discriminatory taxation of the press. Leathers v. Medlock, 499 U.S. 439, 447 (1991).

    Such considerations also apply to discretionary distributions of federal funds for expressive purposes. In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Supreme Court upheld a condition on NEA grants to artists that required the Endowment to consider "general standards of decency and respect for the diverse beliefs and values of the American public." In doing so, however, the Court found that the condition was not a "categorical requirement" that would "preclude or punish the expression of particular views." And the majority added that if the NEA "were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case." Id. at 587.

    In this case, the use of federal money by ONDCP to provide a substantial bonus to broadcasters and others who agreed to transmit a government-approved message raised significant First Amendment questions. The matter appears to have been resolved, however, without a formal test of its constitutionality.