Vanderbilt Law Review

First Page



The passage of the Public Broadcasting Act of 1967 offered the blueprint for the modern system of public broadcasting and regulation and largely freed noncommercial broadcasting to become a viable alternative to the commercial broadcasting" offered by the three national networks. Since becoming intimately involved in noncommercial broadcasting by providing partial funding, the federal government has imposed regulations on noncommercial broadcasters far more rigid than the restrictions imposed on commercial broadcasters. Recently, however, in a decision that some might regard as heralding greater equality between the first amendment rights of commercial and noncommercial broadcasters and continuing the trend toward loosening restrictions on broadcasters, the United States Supreme Court in FCC v. League of Women Voters ruled that a ban on editorializing by noncommercial broadcasters as prescribed in section 399 of the Public Broad-casting Act of 1967' violated the first amendment rights of public broadcasters.

Part II of this Note begins by discussing the Supreme Court's traditional approach to regulations that limit broadcasters' first amendment rights. Next, part III reviews the relevant history of public broadcasting and the justifications for the Court's differential treatment of noncommercial broadcasters and commercial broadcasters. Part III also examines efforts made to loosen regulations imposed on noncommercial broadcasters, but focuses on section 399's tight restrictions on broadcasters' freedom of speech. In parts IV and V the Note raises the possibility that League of Women Voters signals a new attitude of the Supreme Court to-ward its traditional first amendment analysis of government regulation of federally subsidized noncommercial broadcasters. Part VI then focuses on the decision's present significance for noncommercial broadcasters and their audience. In part VII, the Note examines two questions left unanswered by League of Women Voters: whether editorializing may be defined as "lobbying activities" so that noncommercial broadcasters lose their tax exempt status, and whether the decision's analysis dictates that section 399's ban on political endorsements is also unconstitutional. In response to the first question, this Note calls for Congress and the Treasury to provide guidelines for when, if ever, editorials could constitute lobbying activities. In answering the second question, the Note concludes that despite the remote possibility of increased politicization of public broadcasting the majority's opinion in League of Women Voters makes inevitable the demise of section 399's ban on political endorsements.