Rodney A. Smolla

Professor of Law
Marshall-Wythe School of Law
Williamsburg, Virginia

Among the sideshows in the debate over campaign finance reform are various proposals that would require television broadcasters to provide free air time to political candidates. These proposals, packaged in various shapes and sizes, are not just bad ideas: They violate constitutional law.

As Oliver Wendell Holmes quipped, certitude is not the test of certainty, and the skeptic is entitled to ask what exactly is meant by the cocksure assertion that governmentally mandated free air time would violate the Constitution. Is this a slam dunk? Do existing constitutional doctrines clearly make such proposals unsound? Or is this merely an advocate's assertion, a prediction that, when put to the test, courts would strike such programs down, and moreover, should?

The answer is a blend. Some of the current suggestions being floated about town would clearly run afoul of well-established First Amendment precepts. Others would be in sharp tension with the animating principles of modern First Amendment law, and would very probably be struck down by judges sensitive to those principles. Free air time may be a popular project with some very thoughtful and altruistic reformers, but it is up against the gathering momentum of numerous First Amendment doctrines and, in any judicial test, would almost certainly fail.

Proponents of free air time base their constitutional justification for their proposals primarily on two related notions. On the broadest level, proponents invoke the idea that broadcasters are "public trustees" who may be regulated by government in "the public interest." More narrowly, they argue that free air time may be imposed on broadcasters as a quid pro quo in exchange for the grant to broadcasters of additional spectrum space for digital television. These justifications may sound plausible to some at first blush, but they do not hold up when analyzed against prevailing First Amendment norms. Several discrete aspects of contemporary First Amendment law would be placed in play by free air time proposals.

I. Unconstitutional Conditions

First, the proposals trigger the century-old constitutional doctrine of "unconstitutional conditions." There was a time when American constitutional law was captive to what was known as the "right / privilege" distinction. Americans had certain constitutional "rights," such as freedom of speech or the free exercise of religion. But Americans had no right to government largess, such as government jobs, public education, welfare benefits, franchises, or licenses. These were deemed mere "privileges." The government could attach whatever strings or conditions it wanted to the receipt of these privileges. The recipient had the choice of accepting the government benefit with its conditions attached, or declining the benefit. It was a world of "beggars can't be choosers, don't look a gift horse in the mouth, learn to accept the bitter with the sweet."

This harsh regime, however, was long ago modified by the doctrine of unconstitutional conditions. In a series of landmark Supreme Court rulings, it was held that government did not have a free hand to impose any conditions it wanted on the receipt of public benefits. Some conditions were unconstitutional. A collection of restraining principles evolved, limiting the power of government. Americans now could look a gift horse in the mouth. Several of these limiting principles are directly relevant to free air time proposals.

The Supreme Court has drawn a distinction between restrictions imposed by the government that relate to the government's own speech, and restrictions imposed when the government is empowering or subsidizing private speakers. When the government itself is entering the marketplace of ideas, through the speech of its own employees or contractors, it has substantial power to control the content of the message _ since the message, by hypothesis, is supposed to be the government's own. But when the government is merely enabling private speakers to express their views in the marketplace, by providing the forum for that speech or subsidizing it in some manner, government's power to manipulate the content of the speakers' messages is drastically limited.

In its 1995 decision in Rosenberger v. University of Virginia,¹ for example, the Supreme Court held that the University of Virginia could not withhold funds from a student religious publication when it funded other student publications and activities. The Court rejected the simple-minded assertion that the university could do what it wanted with its own scarce resources, holding that once it entered the business of funding student publications, it could not discriminate among various viewpoints. The Court heavily emphasized the distinction between the university controlling its own speech, and the university controlling the speech of private speakers who sought to participate in its subsidy program. In a key passage the Court stated:

When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message. In the same vein, in Rust v. Sullivan we upheld the government's prohibition on abortion-related advice applicable to recipients of federal funds for family planning counseling. There, the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes....It does not follow, however... that viewpoint-based restrictions are proper when the University does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers.

A second related restraining principle is the "professionalism" notion. State university professors, for example, are government employees, and their research is often government funded. When legislative bodies attempt to dictate what professors may teach and research at too great a level of specificity, however, principles of academic freedom kick in to insulate the professor from such controls. Public libraries and public schools are funded with tax dollars. But the Supreme Court has held that there are limits to the power of government to remove books from them. A librarian applying professional norms for shaping and maintaining a collection has great freedom to make such choices. But there are First Amendment limits on the power of a political body, such as a school board, to interfere with those choices in order to advance a particular viewpoint agenda. If these limits exist when political bodies attempt to exert control down the government "chain of command," so to speak, they are all the more powerful when the government's orders are issued to outsiders such as broadcasters, who are linked to the government only by virtue of the licenses they hold.

A third limiting principle is the "nexus" requirement. The Supreme Court requires a substantial relationship between the benefit being granted and the "string" being attached. When a zoning board grants a license for a hardware store to expand its business, for example, it is permissible to attach the condition that the lot be landscaped to handle additional parking needs, and to deal with extra water runoff caused by paving. But the Supreme Court held in 1994 that it was not permissible for the government to impose a requirement that the hardware store owner create a walking and cycling path through a "greenway" across the property, no matter how attractive and altruistic the policy goal of creating such paths might be. This was a gratuitous condition, the Court held, not sufficiently related to the expansion permit.

So too, the government may not impose a "political greenway" on broadcasters. The government would only be justified in attaching "strings" to the grant of new spectrum space for digital broadcasting if those strings bear some substantial relation to the grant. The government is not free to simply pick out of the sky nice-sounding policy objectives like free air time and impose them on broadcasters because it has granted those broadcasters additional spectrum. Indeed, there is absolutely no logical nexus between digital broadcasting and political campaigns. There is nothing about changing the technical method of broadcasting that has anything whatsoever to do with the content of what is broadcast, let alone content defined specifically as "speeches by candidates."

Fourth, the government cannot presume to attach conditions to benefits that are not in fact benefits. It is not at all clear that the grant of additional spectrum space was a "benefit" to broadcasters at all. The conversion to digital broadcasting, it now appears, will probably cost broadcasters more than they are likely to recoup. There's no quid to the quid pro quo.

The proponents of free air time may have high-minded objectives. But the device of attaching strings to government benefits has, throughout our country's history, almost always been a vehicle for suppressing civil liberties. The attempt to use this device as the fulcrum for forcing broadcasters to grant free air time places free air time proponents on the wrong side in the march of constitutional history.

II. The Constitutional Status of Broadcasters

Free air time proposals place in issue the constitutional status of broadcasters. There are two models at war here. Under one view broadcasters are a sort of partner with government, engaged in a joint venture encapsulated in the catch-phrase "public trustee." Government should attempt to elevate public discourse, the argument goes, and broadcasters should participate in that noble endeavor. Broadcasters are thus seen as "public discourse utilities" who may be regulated according to whatever current policy vogue is deemed in the public interest.

A competing model sees broadcasters as independent journalists, with freestanding First Amendment rights to "call 'em as they see 'em" without government interference. This model contemplates an arms-length tension between government and broadcasters, the same healthy tension that has traditionally dominated the American conception of journalists as watchdogs who occupy their own autonomous role in the system of checks and balances. This second model, of broadcasters as free agents with editorial autonomy and journalistic freedom, now dominates the constitutional landscape.

It is at this juncture that proponents of free air time proposals ritually incant the Supreme Court's 1969 decision in Red Lion Broadcasting Co. v. FCC,² imposed specific and confined obligations on broadcasters to provide opportunities for persons to respond to personal attacks and present opposing viewpoints. Red Lion has been much-roasted in recent years by judges and scholars. It is doubtful that the Supreme Court would adhere to the ruling in Red Lion if it were presented with the issues in that case again. More importantly, Red Lion was an extremely narrow holding, made even narrower by subsequent Supreme Court rulings. Whatever lingering vitality Red Lion may have, it is certainly not enough to support incursions on the independence of broadcasters as sweeping as mandatory free air time for candidates. Time and technology have passed Red Lion by:

The fairness doctrine itself no longer exists. It was wisely abandoned by the FCC because it was deemed unnecessary and counterproductive. The Commission, in a decision affirmed by the courts,³ ruled that the fairness doctrine does more to harm First Amendment values than to promote them.

Red Lion was predicated on the notion of "spectrum scarcity." There were many voices clamoring to be heard and not enough broadcast channels to carry them all. Scarcity no longer exists. There are now many voices and they are all being heard, through broadcast stations, cable channels, satellite television, Internet resources such as the World Wide Web and e-mail, videocassette recorders, compact disks, faxes _ through a booming, buzzing electronic bazaar of wide-open and uninhibited free expression. Pundits such as Norman Ornstein, one of the major proponents of free air time, can be heard day and night commenting on the issues of the times by anyone with a remote control and the willingness to surf. For every point in modern politics there is a cacophony of counterpoints. Political candidates are not wanting for the means or the media from which to project their messages.

The Supreme Court has cautiously backed away from Red Lion. Because the FCC has abandoned the fairness doctrine, the Court has had no necessary occasion to revisit the case. But in numerous pronouncements the Court has clearly repudiated the "partnership" model for broadcasting. In CBS, Inc. v. Democratic National Committee,⁴ for example, the Court observed that Congress sought to retain a "traditional journalistic role" for broadcasters, and had "pointedly refrained from divesting broadcasters of their control over the selection of voices."

There is no sense of "joint venture" when Sam Donaldson grills Bill Clinton about Monica Lewinsky. We have become so accustomed to the independence of broadcasters that we may at times forget its importance; that independence becomes as natural and as unnoticed as the air we breathe. This separation of journalism from government, however, is part of the genius of our constitutional democracy. Like other separations in our system _ separation of church and state, separation of civilian control over the military _ the maintenance of distance between the press and government divides power and prerogative, promoting balance and accountability. We would be a vastly different society without it.

III. Neutrality and Forced Speech

Once it is understood that neither the "right / privilege" distinction nor the "public trustee" concept is sufficient to disqualify broadcasters from First Amendment protection, mandated free air time proposals run smack into a number of the most potent doctrines in modern constitutional law.

Neutrality is the lodestar principle of modern First Amendment jurisprudence. The government is not permitted to regulate speakers according to its own views of what is "good" speech and what is "bad." Many of the proposals for free air time blithely ignore this fundamental dictum. Some, for example, presume to restrict what candidates using the free time could say, barring "political attacks" and requiring that the time be used for the presentation of positions on "issues." But the First Amendment absolutely bars government from the arrogant enterprise of deciding what speech is appropriate in political discourse. Indeed, the First Amendment does not even permit the government to presume to determine what is an "attack" and what is an "issue," as if those two notions could ever be meaningfully distinguished by the government bureaucrats who would enforce the law.

A transcendent principle of modern First Amendment thinking, cutting across a wide variety of contexts and topics, is the prohibition on "forced speech." Government normally is not permitted to force speakers to carry the messages of others, even when the government owns or operates the medium through which the speech is being expressed. Thus the government owns main street, and a group wishing to use the street to stage a parade on St. Patrick's Day must obtain a permit to do so. But once a private group is granted the right-of-way, the government is forbidden under the First Amendment from dictating who will be allowed to march. This was the learning of the Supreme Court's 1995 decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston,⁵ in which the Court held that Massachusetts could not force a private group of parade organizers to include gay, lesbian, and bisexual marchers, even though their exclusion was mean-spirited and discriminatory. "While the law is free to promote all sorts of conduct in place of harmful behavior," the Court admonished, "it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."

IV. Campaign Reform and Buckley v. Valeo

Free air time proposals are currently being advanced as part of the larger agenda of political campaign reform, an agenda that implicates the Supreme Court's historic 1976 ruling in Buckley v. Valeo,⁶ striking down aspects of the Federal Election Campaign Act of 1971 and upholding others. Buckley is a First Amendment thicket, growing thicker and thicker. Many Supreme Court rulings since 1976 have elaborated on Buckley and it is clear enough that public funding of election campaigns is not per se unconstitutional. But there is a world of difference between public funding of campaigns, and the commandeering of the air time of broadcasters. It is one thing, under the First Amendment, for the government to give candidates money to buy their own time on television. It is quite another to cross the line of separation between the government and the media, and forcibly impose free time obligations on broadcasters.

In a 1990 decision that is often overlooked, Austin v. Michigan Chamber of Commerce,⁷ the Supreme Court actually explored the question of whether the press can be swept in and made part of the regime of political campaign reform. The case involved a Michigan law restricting corporate political expenditures. The law contained an exemption, however, for media corporations. The Supreme Court not only held that the exemption was permissible, but seemed to signal that the law would not have been upheld had it been applied to the press. The Court emphasized the "unique role" the press plays in our system, stating that the "press serves and was designed to serve as a powerful antidote to any abuses of power by government officials."

V. Conclusion

The mandated free air time bandwagon should not be permitted to start a roll. Free air time sounds good to some when they first hear of it. The idea is altruistic and catchy. But it is an idea out of touch with reality and out of synch with the First Amendment. There are many practical problems with free air time, among them the simple fact that you can put candidates on television but you can't make people watch. More importantly, mandated free air time is a First Amendment nightmare. There are many thoughtful proposals for reforming American politics in a manner consistent with our First Amendment tradition. Free air time is not one of them.

¹ Rosenberger v. University of Virginia, 115 S. Ct. 2510 (1995).

² Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

³ See 1985 Fairness Report, 102 F.C.C.2d 145 (1985); Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990).

⁴ CBS, Inc. v. Democratic National Comm., 412 U.S. 94 (1973).

⁵ Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 115 S. Ct. 2338 (1995).

⁶ Buckley v. Valeo, 424 U.S. 1 (1976).

⁷ Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

Rodney A. Smolla is the Arthur B. Hanson Professor of Law at the College of William and Mary, Marshall-Wythe School of Law. From 1988 to 1986 he was Director of the Institute of Bill of Rights Law at William and Mary. He graduated from Yale in 1975 and Duke Law School in 1978, where he was first in his class. He then served as law clerk to Judge Charles Clark on the U.S. Court of Appeals for the Fifth Circuit. After practicing law in Chicago, he entered academic life, and taught at the De Paul, University of Illinois, and University of Arkansas law schools before beginning at William and Mary. He has also been a visiting professor at the University of Denver, University of Indiana, and Duke University law schools. He writes and speaks extensively on constitutional law issues, and is also active in litigation matters involving constitutional law.

His book Free Speech in an Open Society (Alfred A. Knopf, 1992) won the William O. Douglas Award as the year's best monograph on freedom of expression. He was the editor of A Year in the Life of the Supreme Court (Duke University Press, 1995), which won an ABA Silver Gavel Award. His book Suing the Press: Libel, the Media, and Power (Oxford University Press, 1986) won the ABA Silver Gavel Award Certificate of Merit. He is also the author of Jerry Falwell v. Larry Flynt: The First Amendment on Trial (St. Martin's Press, 1988). He is the author of three treatises: Smolla and Nimmer on Freedom of Speech (West Group, two volumes, 1996); Federal Civil Rights Acts (West Group, two volumes, 1994); and Law of Defamation (West Group, 1986), and co-author of a casebook on constitutional law: Constitutional Law: Structure and Rights in Our Federal System (with Banks and Braveman, Matthew Bender, 1996).

This paper is adapted from Prof. Smolla's presentation at a panel, "Public Interest Obligations of Broadcasters and the Gore Commission," convened by The Media Institute in Washington, D.C., on Jan. 28, 1998. Papers in the Issues in Broadcasting and the Public Interest series are published under the auspices of The Media Institute's Public Interest Council, a study group of communications attorneys and constitutional scholars formed to follow the work of the Gore Commission.

The Media Institute is a nonprofit research foundation in Washington, D.C., specializing in communications policy and First Amendment issues. The Institute advocates and encourages freedom of speech, a competitive communications industry, and excellence in journalism.