By Robert M. O'Neil

Public broadcasters, increasingly dependent these days on private support, welcome sponsorship from a broad array of underwriters. Donations from virtually any business or nonprofit entity are gratefully received, and will be enthusiastically acknowledged on the air.

Initial contacts between a potential under-writer and KWMU, a St. Louis NPR station licensed to the University of Missouri, thus seemed promising -- especially when the prospective donor said his organization hoped, by sponsoring portions of "All Things Considered," to "attract more highly educated people."

Optimism quickly vanished, however, when the potential underwriter turned out to be the Missouri Realm of the Ku Klux Klan.

The station manager politely but firmly declined the Klan's offer. She attributed her lack of enthusiasm to business and economic considerations, not to viewpoint bias against the Klan.

The public image of the would-be sponsor was, however, relevant to the degree that its membership and message might (the station manager feared) deter other prospective donors from the broader St. Louis community. Though few potential underwriters are ever turned down, KWMU had rejected several others, including one deemed a front for "a house of ill repute."

The Klan went to federal court, claiming the station's negative action was viewpoint based, had occurred in a public forum, and thus abridged the organization's First Amendment freedoms. Several courts had recently told state highway departments they could not bar the Klan from "adopting a highway" because of the group's unpopular views.

But this district court judge ruled broadly in the station's favor, finding the underwriting activity not to constitute a public forum, and placing the station manager's actions well within the zone of discretion that the Supreme Court had very recently defined in Arkansas Educational Television Network v. Forbes.

The court also specifically rejected the Klan's claimed analogy between public radio underwriting and the selling of advertising space on publicly owned buses.

In mid-February, the U.S. Court of Appeals for the Eighth Circuit affirmed the district judge's dismissal of the Klan's complaint on substantially similar grounds. That court's conclusion rested in part on the rejection of various public forum analogies, none of which seemed apposite or helpful to the appellate panel.

As the Supreme Court had stressed in the Forbes case -- slightly to the embarrassment of the Eighth Circuit whence Forbes had come -- "public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine."

The Forbes decision had also made quite clear how broad a zone of editorial discretion and judgment a public broadcaster enjoys -- no less with respect to statements about support and nurture of programming than with respect to the content of that programming itself.

Moreover, an NPR station's on-air acknowledgment of sponsorship was clearly an exercise of government speech -- partly because of the character of the speaker, and partly because of the duty that federal law imposed on the public broadcaster to give such credit in audible and visible forms.

Since the challenged expression was properly viewed as government speech, that largely immunized it from First Amendment scrutiny -- and surely gave the speaker substantial latitude in determining what messages it would and would not convey to its listeners. There was also no basis, in the appellate court's view, for the Klan's claim that it had a First Amendment right to "have its cash contribution accepted by the donee."

Finally, the Eighth Circuit was especially critical of the claim that underwriting of public radio programs (and giving on-air credit for such donations) was a purely commercial activity.

The Klan's asserted analogy to ads on the sides of city buses was simply "ill chosen." Transit ads reflect "the speech of private individuals and groups," whereas spot credits for underwriting and sponsorship are "government's acknowledgments of program funding sources."

Moreover, said the appeals court, underwriting of public radio did not "fall within the conventional understandings of advertisements" as the Supreme Court had defined that term in the commercial speech context.

Not only was the content of acknowledgments severely constrained by FCC rules; on-air credits for sponsorship were, in addition, "related to the journalistic purposes of the station ... [since they] ... convey important, federally man-dated information to the public about the source of funding for particular broadcast material."

Such "news" is central to "the purposes and functions of a noncommercial educational FM broadcaster" -- in sharp contrast to the goals and character of transit and other advertising displays.

Such a ruling has potential value well be-yond the rarefied context of public radio and television.

Indeed, the basic premise of the Eighth Circuit's commercial speech analysis -- that such acknowledgments of sponsorship convey information closely linked to "the journalistic purposes of the station" -- recalls Justice Stevens's plea to focus more on content than context, recognizing that much material nominally called "advertising" conveys information that is so valuable to society and so clearly entitled to protection that relegating it to the nether world of "commercial speech" would disserve both speakers and listeners.

It is in this sense that the Missouri Public Radio / Ku Klux Klan case makes an important and useful contribution to our understanding of commercial speech, albeit in a novel and some-what unlikely setting.

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Robert M. O'Neil is the Founding Director of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville, Va. He is also a professor of law at the University of Virginia.

Arkansas Educational Television Network v. Forbes, 523 U.S. 666 (1998).