Guide to broadcast press freedom for student journalists

Although a university may afford its student newspaper virtually unfettered editorial freedom, the same cannot always be said of its student broadcast media. As the Supreme Court has said:

Balancing the various First Amendment interests involved in the broadcast a task of great delicacy and difficulty. The process must necessarily be undertaken within the framework of the regulatory scheme that has evolved over the course of the past half century.[1]

This "delicate balance" is perhaps nowhere more evident than on America's public college and university campuses where student journalists working on school radio or television broadcast stations face very different hurdles regarding the exercise of their free press rights than their print-based counterparts.[2]

In most cases, for example, the school's board of regents or the university itself will hold the broadcast license for the station, making them ultimately responsible before the Federal Communications Commission (FCC) for any regulatory violations.[3] Yet even with the university's concern over its responsibilities as licensee, the First Amendment rights of the students working at the station must be factored in. Courts consistently have held that at public educational institutions, the First Amendment limits the ability of college and university officials to control the content of student media.[4] It is this dichotomy between student editorial control and university control as licensee that can raise significant -- and complex -- First Amendment issues, some of which have not been fully settled.

Role of FCC Licensee

Even where university officials want to allow their students greater control over the school radio or television station, the FCC still requires that the licensee of the station exercise a minimum degree of oversight. The FCC has ruled that while a licensee can delegate much of the day-to-day responsibilities to others, it cannot wholly insulate itself from such responsibility. For example, in the late 1970s the FCC revoked the license of a radio station at the University of Pennsylvania after finding that the school had abdicated allof its responsibility to supervise and control the station to students, which, in this case, resulted in allegations regarding the broadcast of obscenity, the use of drugs and alcohol at the station and various technical violations that caused interference with other radio and television stations.[5] Still, the Commission recognized student-operated stations as valuable "educational resources." Noting that most such university stations had operated for years without problem the Commission stated it did not "wish to discourage university licensees from operating student-run stations."[6]

While a system of "shared responsibility" could work, the Commission found, University of Pennsylvania officials had gone too far. "Its abdication was total," the Commission ruled, "and cannot be tolerated...."[7]

About ten years later, in an unreported case involving the University of California at Santa Barbara (UCSB), the Commission apparently found a balance it liked, ruling that a "hands-off" policy in the context of UCSB's student-run station was "workable."[8] The Commission accepted the school's policy that university officials had the right to control or punish students for playing content that violated FCC regulations, such as the ban on indecency. However, the policy prohibited officials from controlling content that did not violate FCC regulations even where school officials disagreed with or found the content otherwise offensive.[9] The Commission's ruling indicates that where a licensee retains sufficient oversight and takes meaningful steps to ensure that there are no violations of FCC regulations, universities should be able to turn over the day-to-day operation of the station to students.

Forum Analysis

While the UCSB case prescribes what may be the lower limits of editorial control an FCC licensee can safely exercise over student-operated stations, no court has ever directly addressed the question of where the upper boundaries might lie. In other words, how much editorial control -- or censorship -- can a public university, as licensee, exercise over the programming of a student-run broadcast station when its actions are at odds with the student operators of the station?

In cases not involving "student-run" stations, courts have allowed government officials to exercise some control over editorial content, although they have required that the degree of such control be considered in the context of the type of forum involved.

Very briefly, the Supreme Court has recognized three types of government forums for speech: (1) the traditional forum, (2) the public forum created by government designation (also known as a limited public forum) and (3) the nonpublic forum. For the Court, the distinction between a public forum and a limited or nonpublic forum has usually been analyzed in terms of general versus selective access.[10]

In traditional public forums, such as streets and parks where there is an established tradition of the property being "devoted to assembly and debate" by the general public, the government can prohibit speech only in extraordinary circumstances and only in a content-neutral manner, which includes reasonably controlling when, where and how the speech is disseminated.[11]

On the other hand, the government creates a limited public forum when it purposely "makes its property generally available to a certain class of speakers."[12] Alternatively, the government may open the forum "...for use by certain speakers, or for the discussion of certain subjects."[13] Those who do not fall within the prescribed class of speakers may be reasonably excluded. Where an individual does fall within the class of speakers for which the limited public forum was created, however, the government's ability to control the speech within that forum is significantly restricted.

Finally, where the government merely reserves access for a class of individuals who must ask permission to use the forum, a nonpublic forum is created.[14] While access to a nonpublic forum can be restricted simply upon a showing that the restrictions are reasonable, the government violates the First Amendment if it denies access merely because it opposes the speaker's view.[15]

In fact, most public university stations -- including those that are "student-operated" -- would be categorized as either limited or nonpublic forums. In such cases, the First Amendment protections available to students working at those stations would depend on the station's actual polices and practices. For example, as in the UCSB case, some stations specifically charge students with the responsibility for deciding what news or programs are to be aired. A strong argument could be made in such cases that the station operates as a limited public forum for speech by the student operators. As such, the ability of school officials to regulate otherwise lawful student programming would be extremely limited. Other stations are managed by non-student employees who may serve as station managers or program directors. The degree of control exercised by these individuals differs, and the forum status of such stations would likely vary accordingly. At other stations, students may be cast more in the role of interns who have little, if any, say in deciding what is aired.

The bottom line is that administrative oversight -- if it goes too far -- will almost certainly weaken the forum status of the station and, by extension, the First Amendment protections available to students wishing to exercise editorial control at the station.

Judicial Balancing

The First Amendment exists to prevent government censorship of speech. In the case of public broadcast stations, including university-licensed stations, the government is occasionally, it seems, put in the dual and complicated role of being both speaker and censor, and courts are left to try and sort things out.[16]

In one of the first cases to tackle the issue, Muirv. Alabama Educational Television Commission,[17] the U.S. Court of Appeals for the Fifth Circuit rejected a First Amendment claim by viewers and upheld the authority of two state-owned public television stations, neither of which were student-run or operated, to refuse to air a controversial program. The court found that the public television stations at issue were not supposed to function as "a pure marketplace of ideas." Therefore, as a nonpublic forum, the state could regulate content "in order to prevent hampering the primary function of the activity."[18]

The Muir court's decision heavily influenced a later ruling in Schneider v. Indian River Community CollegeFoundation.[19] The case involved a noncommercial, educational station licensed to the Board of Trustees of Indian River Community College. The station employed a full-time station manager and program director as well as other paid staff, some of whom taught at the college. The paid staff was "assisted" by student interns. Nothing in the record suggests that the students exercised any control over the station's programming. The station manager and programming director sued the school, claiming that the community college's president violated their First Amendment rights by engaging in censorship and prior review of the station's programming.[20]

In finding for college, the court wrote that "the degree of control which can be exercised consistently with the First Amendment depends on the mission of the communicative activity being controlled."[21] The president of the college regularly monitored the commentary that went on the air. He also exercised his opinion about what upcoming events could be covered by the radio station. As in Muir,the court found that the station was "not designed to function as a pure marketplace of ideas."[22]

Moreover, the court said it was the First Amendment rights of the FCC licensee -- in this case the college trustees -- that were protected by the First Amendment and not the rights of the employees.[23] Because the station was not operated as a "public access" broadcaster, the trustees' control of the programming did not violate the First Amendment rights of the employees.[24] The court said that although the making of content-based decisions by government institutions is "ill-advised," it "does not warrant judicial scrutiny."[25]

Finally, in a more recent decision, the Supreme Court held that a state public television broadcaster's decision to exclude a "fringe" congressional candidate from a televised debate was a reasonable, viewpoint-neutral exercise of journalistic discretion and therefore did not violate the First Amendment.[26] The case largely followed the sort of reasoning used by both the Muirand Schneidercourts, finding that the political debates were nonpublic forums.

Although all three of these cases allowed the state-owned stations to control content, they make clear that a court is obligated to first examine the forum status of the speech at issue. In that sense, they can all be distinguished from the situations faced by many student-run radio and television stations. For example, the stated mission of many student-run stations is to provide a forum for student news and opinion on the university campus. Moreover, at some stations, student program or news directors have been charged with the day-to-day task of deciding what is aired. Both factors could weigh heavily in the judicial balance.

Indeed, the Muir court actually cites a landmark student press case to suggest that not all public broadcast stations are necessarily created equal. While a college or university is not required to open its broadcast station to student news and opinion, once it does, the First Amendment may prevent school officials from casually taking away their microphones.

Standard First Amendment doctrine condemns content control by governmental bodies where the government sponsors and financially supports certain facilities through the use of which others are allowed to communicate and to exercise their own right of expression.[27]

This view of student-run stations as protected forums has been supported by various commentators who have argued that when a state, operating as a licensee, opens itself up for others to use, the ability of the state, in this case the university, to regulate content should be limited. As one writer noted, "The state has a great deal of discretion in its initial decision to delegate editorial responsibility, but once it has been delegated, the state 'cannot selectively intervene to delete material or discipline editors.'"[28] The state licensees should not be able to require a departure from the normal editorial process and make decisions that are politicized or ad hoc.[29] If the government's "sole purpose was to suppress speech, the government's decision would become presumptively unconstitutional."[30]

So far, most of the public broadcast cases heard by courts have involved claims of censorship by outsiders or station employees. Student staff members are not outsiders; and unlike the analysis in traditional employee speech cases, the Court has generally been very protective of campus speech. As the Supreme Court has said, "the college classroom and its surrounding environs is peculiarly the marketplace of ideas...[a]nd the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."[31] Therefore, where an initial showing can be made that a university-licensed broadcast station has opened itself as a forum for expression by student staff members and where it can be demonstrated that allowing such expression can be accomplished in a way that does not violate FCC rules, it is certainly reasonable to conclude that the balance -- albeit the very delicate balance -- would likely tip in favor of the students.

1 Columbia Broadcasting System, Inc. v. Democratic National Committee,412 U.S. 94, 101-102 (1973).
2 It is important to note that the court rulings described here only apply to broadcast radio and television stations. Closed circuit or Internet-based media are not subject to FCC regulations or licensing and thus should receive the same First Amendment protections provided to print media. Cable stations are subject to some FCC regulation, though generally less than broadcast stations.
3 See, e.g., Alabama Educational Television Commission,50 FCC 2d 461 (1975).
4 See generally Antonelli v. Hammond,308 F. Supp 1329 (D. Mass. 1970), Bazaar v. Fortune,476 F.2d 570, aff'd en banc with modification, 489 F.2d 225 (5th Cir. 1973)(per curiam), Joyner v. Whiting,477 F.2d 456 (4th Cir. 1973). Private schools, because they are not government organizations, are not limited by these same constraints.
5 Trustees of the University of Pennsylvania,69 F.C.C.2d 1394, paras. 23-38 (1978), recon. denied,71 F.C.C.2d 416 (1979) (WXPN).
6 71 F.C.C.2d at 421.
7 71 F.C.C.2d at 428.
8 "KCSB-FM responds to FCC investigation," Student Press Law Center Report28-31 (Fall 1987).
9 See id. To ensure students did not violate FCC regulations, officials provided the station employees with written guidelines and on-site training.
10 See Jersawitz v. People TV,71 F. Supp.2d 1330, 1340 (N.D. Ga. 1999). See also, Arkansas Educational Television Commission v. Forbes,523 U.S. 666, 677-79 (1998).
11 See Perry Education Association v. Perry Local Educators' Association,460 U.S. 37, 45 (1983).
12 Arkansas Educational Television Commission v. Forbes,523 U.S. 666 (1998).
13 Cornelius v. NAACP Legal Defense and Education Fund Inc.,473 U.S. 788, 802 (1985).
14 See id.
15 Id. at 806.
16 See, e.g., Arkansas Educational Television Commission v. Forbes,523 U.S. 666 (1998)(public television station permitted to exclude "fringe" political candidate from televised debate); Knights of the Ku Klux Klan v. Univ. of Missouri,2000 U.S. App Lexis 2274 (8th Cir., Feb. 17, 2000)(no First Amendment right to sponsor public radio station programming and have underwriter's message read over the air); Aldrich v. Knab,858 F.Supp. 1480 (W.D. Wash. 1994)(university-licensed station's policy prohibiting criticism of station violates First Amendment).
17 688 F.2d 1033 (5th Cir. 1982), cert. denied,460 U.S. 1023 (1983)(en banc), cert. denied, 460 U.S. 1023 (1983).
18 Muir, 688 F.2d at 1050.
19 Schneider v. Indian River Community College Foundation, Inc.,875 F.2d 1537, 1541 (11th Cir. 1989).
20 See id. at 1540-42.
21 Schneider,875 F.2d at 1541 (citing Muir, 688 F.2d at 1050).
22 See id. at 1541.
23 See id.
24 See id.
25 Id. at 1541 (citing Muir, 688 F.2d at 1052-53).
26 Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998).
27 Muir, 688 F.2d at 1043 (citing Bazaar v. Fortune, 476 F.2d 570, 574 (5th Cir. 1973)(public university officials did not have authority to censor student literary magazine recognized as forum for student expression simply because the school provided financial support and administrators disapproved of the content).
28 See Linda L. Berger, Note: Government-Owned Media: The Government as Speaker and Censor, 35 Case W. Res. 707, 737 (1985)(citing Canby, The First Amendment and the State as Editor: Implications for Public Broadcasting,52 Tex. L. Rev. 1123, 1148 (1974)).
29 See 740-41.
30 Id. This principle was adopted by the dissenting opinions in Muir, 688 F.2d at 1060 (Reavely, J., dissenting).
31 Healy v. James,408 U.S. 169, 180 (1972). See also, Rosenberger v. Rectors and Visitors of the Univ. of Virginia, 515 U.S. 819, 836 (1995)(describing college and university campuses as one of the vital centers for the nation's intellectual life).