Filed: Feb. 17, 2000
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 99-1168 _ Knights of the Ku Klux Klan, Realm * of Missouri, and Michael Cuffley, * * Appellants, * * v. * * Curators of the University of Missouri; * Patricia Bennett, in her official capacity * as general manager of KWMU Radio * only; Theodore C. Beckett, in his * official capacity as Curator of the * University of Missouri; Paul T. Combs, * in his official capacity as Curator of the * University of Missouri; Adam B. Fischer,* in his o
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 99-1168 _ Knights of the Ku Klux Klan, Realm * of Missouri, and Michael Cuffley, * * Appellants, * * v. * * Curators of the University of Missouri; * Patricia Bennett, in her official capacity * as general manager of KWMU Radio * only; Theodore C. Beckett, in his * official capacity as Curator of the * University of Missouri; Paul T. Combs, * in his official capacity as Curator of the * University of Missouri; Adam B. Fischer,* in his of..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-1168
___________
Knights of the Ku Klux Klan, Realm *
of Missouri, and Michael Cuffley, *
*
Appellants, *
*
v. *
*
Curators of the University of Missouri; *
Patricia Bennett, in her official capacity *
as general manager of KWMU Radio *
only; Theodore C. Beckett, in his *
official capacity as Curator of the *
University of Missouri; Paul T. Combs, *
in his official capacity as Curator of the *
University of Missouri; Adam B. Fischer,*
in his official capacity as Curator of the * Appeal from the United States
University of Missouri; Mary S. * District Court for the
Gillespie, in her official capacity as * Eastern District of Missouri
Curator of the University of Missouri; *
Fred L. Hall, Jr., in his official capacity *
as Curator of the University of Missouri; *
Malaika B. Horne, Dr., in her official *
capacity as Curator of the University of *
Missouri; John A. Mathes, in his official *
capacity as Curator of the University of *
Missouri; Paul W. Steele, in his official *
capacity as Curator of the University of *
Missouri; Hugh E. Stephenson, Jr., Dr., *
in his official capacity as Curator of the *
University of Missouri, *
*
Appellees. *
*
American Civil Liberties Union of *
Eastern Missouri, *
*
Amicus on Behalf of Appellants. *
*
National Public Radio, a/k/a *
National Public Radio, Inc., *
*
Amicus on Behalf of Appellees. *
___________
Submitted: September 16, 1999
Filed: February 17, 2000
___________
Before McMILLIAN, MURPHY, and TUNHEIM,1 Circuit Judges.
___________
McMILLIAN, Circuit Judge.
The Knights of the Ku Klux Klan, Realm of Missouri (“Missouri KKK”), and
Michael Cuffley, the state coordinator for the Missouri KKK (together “appellants”),
appeal from a final order entered in the United States District Court2 for the Eastern
District of Missouri granting summary judgment in favor of the individual Curators of
the University of Missouri and Patricia Bennett, general manager of the radio station
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable Thomas C. Mummert, III, United States Magistrate Judge for
the Eastern District of Missouri.
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KWMU (together “appellees”). See Knights of the Ku Klux Klan, Realm of Missouri
v. Bennett, 29 F. Supp. 2d 576 (E.D. Mo. 1998). For reversal, appellants argue that
the district court erred in holding that, in light of certain facts not genuinely disputed,
appellees’ rejection of the Missouri KKK as an underwriter violated neither the First
Amendment nor the Equal Protection Clause of the Fourteenth Amendment. For the
reasons discussed below, we affirm the order of the district court.
Jurisdiction
Jurisdiction in the district court was proper based upon 28 U.S.C. § 1343.
Jurisdiction in the court of appeals was proper based upon 28 U.S.C. § 1291. The
notice of appeal was timely filed pursuant to Fed. R. App. P. 4(a).
Background
KWMU is a not-for-profit public broadcast radio station located on the campus
of the University of Missouri at St. Louis ("UMSL"). KWMU is owned and operated
by The Curators of the University of Missouri, a public corporation established under
state law, see Mo. Rev. Stat. § 172.020 (1999), and licensed by the Federal
Communications Commission ("FCC") to run the station. See 29 F. Supp. 2d at 577.
The Chancellor of UMSL, Dr. Blanche Touhill, is responsible for overseeing KWMU's
operation. See Appellees' Appendix at 249. Patricia Bennett, the director and general
manager of KWMU, supervises the station's administration, development, engineering,
programming, and sales divisions on a daily basis. Bennett also communicates weekly
with Dr. Donald Dreimeier, Deputy to the Chancellor of UMSL, who in turn reports
to Touhill. See Transcript of Dist. Ct. Evidentiary Hearing at 7, 9 (Aug. 12, 1998)
[hereinafter "Tr."].
To help fund the station, KWMU operates an “enhanced underwriting” program
within its sales division. See id. at 30, 32. Pursuant to federal law, the station
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acknowledges on air any individual or group source of funding for a particular
broadcast matter. See 47 U.S.C. § 317(a)(1) (requiring on-air announcement at time
of sponsored broadcast identifying source of “any money, service or other valuable
consideration . . . directly or indirectly paid, or promised to or charged or accepted by”
the broadcasting station). Contributors of such funds are referred to as “donors” or
“underwriters.” See, e.g., In re Commission Policy Concerning the Noncommercial
Nature of Educational Broadcasting, Public Notice, 7 F.C.C.R. 827 (1992) ("1992
Order"). Although federal law forbids noncommercial educational FM broadcasters
like KWMU from broadcasting “advertisements,” see 47 U.S.C. § 399b; 47 C.F.R. §
73.503(d), public broadcasters are permitted to “enhance” or expand the scope of
donor or underwriter acknowledgments by including (1) logograms or slogans which
identify the underwriter but do not promote it, (2) location information on the donor,
(3) value neutral descriptions of the underwriter’s product line or service, and (4) donor
brand names, trade names, and product or service listings. See In re Commission
Policy Concerning the Noncommercial Nature of Educational Broadcasting Stations,
97 F.C.C.2d 255, 263 (1984) ("1984 Order"). Typically, the announcement is a fifteen-
second message, drafted by the underwriter or KWMU staff. See Tr. at 38-39. All
scripts are reviewed and edited by station management to ensure compliance with
federal law and regulations as well as KWMU underwriting guidelines,3 because
3
KWMU's underwriting guidelines provide, in relevant part, as follows:
On-air Identification of Underwriters
1.) An underwriter of programming is required by the FCC to be
identified by its legal name or [its] recognized name of operation.
2.) An entire underwriting announcement may not exceed 15 seconds,
including underwriters['] name and name of program sponsored.
3.) On-air announcements may include:
(a) The name of the organization[.]
(b) A logogram or slogan that identifies but does not promote.
Logograms and slogans must comply with the rules outlined
in FCC 86–161.
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UMSL (as the licensee of KWMU) is ultimately liable for all transmissions. See, e.g.,
47 U.S.C. § 503(b)(1), (b)(2)(A) (forfeiture provisions); Russellville Educ. Broadcast
Found., Licensee of KMTC (FM), Letter, DA 99–1280 (July 1, 1999) (imposing $2500
forfeiture penalty for impermissible advertisements); Penfield Communications, Inc.,
(c) Location[.]
(d) Value neutral descriptions of a product line or service.
(e) Trade names, product or service listings that aid in
identifying the donor.
4.) On-air announcements may not include:
(a) A call to action to use a product or service, or inducement
to buy, sell, rent [or] lease or visit.
(b) Qualitative or comparative description of a company, its
products or services.
(c) Pricing information or indication of associated savings or
value.
(d) Logograms or slogans that contain comparative or
qualitative descriptions or are promotional in nature.
(e) More than three trade names, product[s] or service listing[s]
in a single announcement.
(f) Any form of misrepresentation.
(g) The words "you," "your" and "we." Use of these words
implies a relationship between the funder and the listener,
rather than just between the funder and KWMU.
5.) No pre-produced underwriting announcements, audio logos, or
musical themes will be accepted.
[6.]) KWMU airs no more than three local underwriter announcements
at each scheduled break.
[7.]) Under FCC rules, [regulations] and policies, KWMU has a duty to
determine what programming will best serve the public interest.
The selection of spokespersons, format, subject matter, duration
and scheduling of broadcast material is a matter within KWMU's
discretion. KWMU reserves the right to reject any material.
Appellants' Appendix at 109-11.
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Licensee of KRTM (FM), Memorandum Opinion & Order & Forfeiture Order, DA
98–2407 (Nov. 25, 1998) (imposing $4000 forfeiture penalty for same reasons).
As general manager, Bennett designates the percentage of total air time available
for underwriting spots as well as the amount of underwriting time allotted to particular
programs. See Tr. at 21-22. Bennett accepts donor funds from, and approves
accompanying messages of, approximately thirty underwriters per week. See id. at
122. As a matter of course, Bennett does not examine the philosophy or policies of
each potential donor. See
id. at 62. Nonetheless, prior to the institution of this action,
Bennett has rejected financial support from several potential underwriters. See 29 F.
Supp. 2d at 578 (noting rejection of underwriting requests from a group called
"Ultimate Fighting Championships," a political entity titled "The American Friends
Service Committee," and an establishment known to be "a house of ill repute").
Some time prior to September 24, 1997, Michael Cuffley4 contacted KWMU by
telephone and requested information on underwriting several fifteen-second spots for
NPR’s “All Things Considered” program. See Tr. at 160-61. Cuffley testified that he
enjoyed the program, wanted to support KWMU, and hoped to attract more highly
educated people to his organization. See id. at 159-60. Cuffley did not initially identify
4
As state coordinator for the Missouri KKK, Cuffley is the highest ranking
official of that organization. Cuffley’s duties for the Missouri KKK include speaking
at public events, planning activities, and coordinating activities with other Ku Klux
Klan organizations around the country. See Tr. at 157-59.
Although not “officially” tied to any other Ku Klux Klan groups, the Missouri
KKK subscribes to the general principles of the Ku Klux Klan and traces its roots back
to 1865 and the aftermath of the Civil War. As such, the Missouri KKK admits only
American-born, white Christians, does not openly advocate violence, but does
participate in “cross-lightings” at which members wear traditional white robes and
hoods. Cuffley himself has participated in over a hundred such cross-lightings. See id.
at 170-71.
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himself or his organization. See id. at 161. A KWMU sales representative quoted
Cuffley the underwriting costs for not-for-profit organizations and requested his
telephone number, advising Cuffley that a sales representative would contact him at a
later date. See
id. at 161, 163. At that point, no agreement was reached between
KWMU and Cuffley.
On September 24 and 29, 1997, Cuffley wrote to KWMU requesting the
opportunity for the Missouri KKK to sponsor four segments of NPR’s “All Things
Considered.” See 29 F. Supp. 2d at 578. Cuffley submitted the following message to
KWMU to be read as an underwriting acknowledgment:
The Knights of the Ku Klux Klan, a White Christian organization,
standing up for rights and values of White Christian America since 1865.
For more information[,] please contact the Knights of the Ku Klux Klan,
at P.O. Box 525[,] Imperial, Missouri[,] 63052. Let your voice be heard!
Appellees' Appendix at 122.
Bennett contacted her immediate supervisor, Driemeier, and requested a
decision from Chancellor Touhill regarding the Missouri KKK's proposed underwriting
support. Bennett recommended that KWMU refuse the funds but did not outline
reasons for this recommendation. See Tr. at 91, 153-54. Driemeier told Touhill of the
Missouri KKK’s offer but did not inform her of Bennett’s recommendation. Prior to
making her decision, Touhill did not speak with Bennett regarding the matter. See id.
at 124, 154. No one had previously consulted Touhill regarding the acceptance or
rejection of underwriting funds. See
id. at 132.
Touhill ultimately rejected the Missouri KKK’s proposed underwriting gift.
See id. at 131, 133. At the district court evidentiary hearing, Touhill explained her
decision as follows. She first noted that KWMU was legally required to acknowledge
donors on the air. See
id. at 133, 135. Touhill anticipated that an acknowledgment of
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the Missouri KKK as an underwriter would result in a significant loss of revenue to
UMSL. Touhill specifically stated that these business and economic reasons, and not
the views of the Missouri KKK, were the basis for her decision. See id. at 135-36.
In some detail, Touhill outlined the negative consequences of accepting
underwriting funds from the Missouri KKK. First, Touhill believed Missouri KKK
sponsorship would jeopardize future gifts from major African-American donors. See
id. at 133-35. Based on her experience and interaction with these donors, Touhill
predicted a twenty percent decline in annual gifts to UMSL, or a loss of some two
million dollars per year. See
id. at 148. Second, Touhill projected a drop in student
enrollment if the Missouri KKK were accepted as an underwriter. Touhill estimated
that twenty-five percent of the 1,565 African-American students at UMSL (and ten
percent of the 9,142 white students) would leave the school, resulting in an annual loss
of over three million dollars. See
id. at 147-48. Finally, Touhill stated that KWMU’s
association with the Missouri KKK would counteract her efforts, both as the primary
spokesperson for UMSL and as a member of multiple civic and corporate boards, in
creating and maintaining a level playing field in the community for African-Americans.
See 29 F. Supp. 2d at 580.
Based on Touhill's decision, Bennett wrote Cuffley on October 3, 1997, and
informed him that KWMU would not accept underwriting funds from the Missouri
KKK. See Appellants' Appendix at 79. Appellants subsequently filed this action in the
district court, seeking injunctive and declaratory relief on their claim that appellees had
violated their First and Fourteenth Amendment rights by refusing their request for
program underwriting. The parties subsequently filed cross-motions for summary
judgment. See 29 F. Supp. 2d at 577.
After a full hearing on the merits, the district court granted appellees' motion
for summary judgment and denied appellants' cross-motion. The district court held that
KWMU's enhanced underwriting program was not a forum for speech and therefore did
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not implicate the First Amendment. See id. at 583-84. The district court initially noted
that public broadcasters are not common carriers in interstate commerce, but rather
licensed "public trustees," with the responsibility to "schedule programming that serves
the public interest, convenience, and necessity."
Id. at 582-83 (quoting Arkansas Educ.
Television Comm'n v. Forbes,
118 S. Ct. 1633, 1639 (1998) (Forbes)) (internal
citations omitted). Thus, the district court reasoned, Congress' decision to license
broadcasters in such a manner indicated its preference that "the allocation of
journalistic priorities should be concentrated in the licensee rather than diffused among
many," Columbia Broadcasting Sys., Inc. v. Democratic Nat'l Comm.,
412 U.S. 94, 125
(1973) (CBS), and meant that public broadcasting "as a general matter does not lend
itself to scrutiny under the forum doctrine," with the exception of political candidate
debates.
Forbes, 118 S. Ct. at 1640. The district court reasoned that, because this case
did not fall within the scope of the exception outlined under Forbes, no forum
examination was necessary.
See 29 F. Supp. 2d at 583-84. The district court
specifically rejected appellants' argument that the enhanced underwriting program, as
a revenue-generating operation analogous to advertising space on public buses, did not
"enjoy the protection granted in Forbes to editorial discretion."
Id. at 584. The district
court determined that broadcasters' finite amount of air time meant that anything
broadcast during that time was a matter of discretion and was subject only to license,
FCC, and internal restrictions. Otherwise, "[t]o interpret the enhanced underwriting
program as a forum would be to engage the courts in the day to day operation of the
radio station – an engagement prohibited by Forbes."
Id. In the alternative, under a
forum analysis, the district court held that KWMU's enhanced underwriting program
was not a designated public forum and was, at best, a nonpublic forum in which
rejection of the Missouri KKK as an underwriter was based on uncontradicted business
and economic reasons and did not constitute an attempt to suppress the group's
viewpoint. See
id. at 586-87. This appeal followed.
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Discussion
We review the district court’s grant of summary judgment de novo, applying
the same standard as the district court. See Brandt v. Davis, 191 F.3d 887, 891 (8th
Cir. 1999). Summary judgment is appropriate when it is shown "that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c). “All facts are viewed in the light most
favorable to the party opposing the motion, giving that party the benefit of all
reasonable inferences to be drawn from the facts.” Portis v. Folk Constr. Co.,
694 F.2d
520, 522 (8th Cir. 1982).
For reversal, appellants initially claim that the underwriting acknowledgments
do not constitute government speech and therefore are not shielded from forum
analysis. Appellants contend that Forbes does not "immunize all activities conducted
in the name of public broadcasting from First Amendment scrutiny," but instead
insulates only governmental speech and communicative activity. Reply Brief at 7.
Specifically, appellants argue that the Forbes Court sought to protect from outside
interference a public broadcaster's selection and presentation of third party speech
within its broadcast programming. See Forbes, 118 S. Ct. at 1639 ("When a public
broadcaster exercises editorial discretion in the selection and presentation of its
programming, it engages in speech activity . . . . Although programming decisions often
involve the compilation of the speech of third parties, the decisions nonetheless
constitute communicative acts.") (citations omitted). Appellants assert that, although
the station is normally engaged in such protected speech for the better part of its
broadcast, KWMU "relinquishes its speaker's role and becomes a mere conduit of third
party speech" through its enhanced underwriting program. Reply Brief at 8.
Appellants note that, although KWMU initially exercises its editorial discretion by
setting aside time for the broadcast of third party messages and later exerts some
control over the content and form of underwriters' messages, KWMU admittedly does
not investigate, promote, or vouch for the views expressed within the underwriting spot.
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Thus, appellants argue, the underlying nature of the underwriter spots remains
unchanged: the underwriting acknowledgments clearly express the speech and
viewpoints of the underwriters, not KWMU.5 Cf. Bryant v. Secretary of the Army, 862
F. Supp. 574, 580-81 (D.D.C. 1994) (Bryant) (finding that letters to editor published
in military base newspaper "clearly d[id] not reflect government speech in any ordinary
sense of the term" and thus Army's editorial regulation, which "touche[d] upon
instances in which the Government is seeking to regulate speech," was not immunized
from First Amendment challenges). Accordingly, this lack of government speech
means that KWMU's enhanced underwriting program is afforded no insulation from
forum analysis under Forbes.
Appellants further assert that the enhanced underwriting program is merely
a revenue-generating operation without journalistic or editorial character and, as such,
cannot claim protection from forum analysis under Forbes. Appellants claim that
Forbes insulates only matters of editorial or journalistic discretion and that KWMU's
exchange of airtime for funds is not of the journalistic or editorial quality protected by
Forbes.6 See Forbes, 118 S. Ct. at 1640 ("Claims of access under our public forum
5
Appellants contend that the district court “confuse[d] the medium with the
message,” see Brief of Appellants at 41, by stressing the significance of a KWMU
employee, rather than a donor representative, reading the underwriting announcement.
See 29 F. Supp. 2d at 583. Appellants argue that the use of government employees to
facilitate transmission to the public is irrelevant, as long as the messages are those of
the underwriters and not of the government. See, e.g., Christ's Bride Ministries, Inc.
v. Southeastern Pa. Transp. Auth.,
148 F.3d 242 (3d Cir. 1998) (ads in public subway
and railway stations presumably posted by government employees).
6
Amicus curiae American Civil Liberties Union of Eastern Missouri ("ACLU")
refines this argument by drawing a strict distinction between “programming” and
“programming breaks” such as underwriting announcements. See, e.g., 47 U.S.C. §
399a(b) (requiring that sponsorship announcements not interrupt “regular
programming”). ACLU contends that Forbes protection only extends to the editorial
discretion involved in programming. See, e.g., Forbes, 118 S. Ct. at 1639 (“When a
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precedents could obstruct the legitimate purposes of . . . broadcasters. Were the
doctrine given sweeping application in this context . . . '[t]he result would be a further
erosion of the journalistic discretion of broadcasters,' transferring 'control over the
treatment of public issues from the licensees who are accountable for broadcast
performance to private individuals.'") (quoting CBS, 412 U.S. at 124). Instead,
KWMU's enhanced underwriting program was a "discrete and severable activity from
KWMU's primary journalistic function . . . administered by sales people with business
concerns, not journalists with editorial concerns." Brief for Appellants at 43.
Appellants contend that this "selling" of airtime to underwriters is analogous to the sale
of advertising spaces on or within public transit facilities. See, e.g., Planned
Parenthood Ass'n v. Chicago Transit Auth.,
767 F.2d 1225, 1227 (7th Cir. 1985)
(finding transit authority's refusal to sell plaintiff advertising space on its buses and
transit cars constitutionally impermissible). Moreover, the fact that KWMU requires
a donation (or charges a fee) for the underwriting announcements does not "negate the
possibility that the government" has created a forum. Airline Pilots Ass'n Int'l v.
Department of Aviation,
45 F.3d 1144, 1155 (7th Cir. 1995); see also United Food &
Comm. Workers Union, Local 1099 v. Southwest Ohio Reg. Transit Auth.,
163 F.3d
341, 353-54 (6th Cir. 1998) ("[T]he goal of generating income by leasing ad space
suggests that the forum may be open to those who paid the requisite fee."). Because
"[e]nhanced underwriting is no more journalism than advertisements on the outside of
buses are transportation," appellants argue that the district court misapprehended the
scope of Forbes and thereby erred in refusing to apply forum analysis to KWMU's
enhanced underwriting program. Brief for Appellants at 42.
public broadcaster exercises editorial discretion in the selection and presentation of its
programming, it engages in speech activity.”). Based on this narrow reading of Forbes,
ACLU argues that programming breaks are not of adequate journalistic caliber and thus
forum analysis is required.
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Appellants additionally argue that courts can properly apply forum analysis
under Forbes where the broadcaster intentionally sets aside time for the presentation
of third party views. Appellants imply that, although "the First Amendment of its own
force does not compel public broadcasters to allow third parties access to their
programming," Forbes, 118 S. Ct. at 1640 (emphasis added), broadcasters may create
fora through their own intentional, voluntary actions. For example, in the context of
candidate debates, the Forbes Court specifically noted that forum analysis was
appropriate because the broadcasting activity was by design a forum for the candidates'
political speech, "where the views expressed were those of the candidates, not [the
broadcaster's] own."
Id. Appellants argue that KWMU has similarly provided
affirmative public access to its airwaves by dedicating airtime to the specific purpose
of transmitting underwriter speech in exchange for underwriting funds. Accordingly,
appellants contend that the district court should have analyzed KWMU's voluntarily
created, enhanced underwriting program under the forum doctrine. We disagree.
We reiterate Forbes' admonition that "[h]aving first arisen in the context of
streets and parks, the public forum doctrine should not be extended in a mechanical
way to the very different context of public television broadcasting." Id. at 1639.7
Although open access and viewpoint neutrality may be compatible with the intended
aims of streets and parks, such forum requirements are for the most part inapplicable
in the context of public broadcasting, where substantial discretion is accorded to
broadcasters with respect to the daily operation of their stations. See
id. ("[B]road
rights of access for outside speakers would be antithetical, as a general rule, to the
discretion that stations and their editorial staff must exercise to fulfill their journalistic
7
Forbes specifically dealt with the arena of public television broadcasting.
However, for the purposes of First Amendment analysis, public radio and public
television are ordinarily treated the same, see Schneider v. Indian River Community
College Found., 875 F.2d 1537, 1541 (11th Cir. 1989) (Schneider), as are television
and radio generally. See Turner Broad. Sys., Inc. v. FCC,
512 U.S. 622, 637-38 (1994)
(Turner).
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purpose and statutory obligations."). Instead of being compelled to open their facilities
"on a nonselective basis to all persons wishing to talk about public issues," CBS, 412
U.S. at 105, public broadcasters enjoy the "widest journalistic freedom" consistent with
their statutory obligations to broadcast material serving the "public interest,
convenience, and necessity."
Id. at 110; 47 U.S.C. § 309(a). Because broad
application of the forum doctrine in this context would require "oversee[ing] far more
of the day-to-day operations of broadcasters' conduct, deciding such questions as
whether a particular individual or group has had sufficient opportunity to present its
viewpoint and whether a particular viewpoint has already been sufficiently aired,"
CBS,
412 U.S. at 127, "public broadcasting as a general matter does not lend itself to
scrutiny under the forum doctrine."
Forbes, 118 S. Ct. at 1640. Against this backdrop,
we reject appellants' principal contention that the district court erred in determining that
KWMU's enhanced underwriting program was not a forum.
First and foremost, KWMU's underwriting acknowledgments constitute
governmental speech on the part of UMSL. Contrary to appellants' contentions, the
central purpose of the enhanced underwriting program is not to promote the views of
the donors, but to acknowledge "any money, service, or other valuable consideration
. . . directly or indirectly paid, or promised to or charged or accepted by" the station
with respect to the broadcast of any matter. 47 U.S.C. § 317(a)(1). In other words,
KWMU's underwriting announcements are federally-mandated sponsorship
identifications, in which UMSL "speaks" by airing its acknowledgments of funds
received from certain parties to pay for specific KWMU broadcasts. Because KWMU
must by law publicly advise its listeners as to the sources of funds "accepted" for its
broadcasts, UMSL's decision to accept or reject the funds of underwriters is itself a
governmental decision to speak or remain silent.8 Cf. Muir v. Alabama Educ.
8
Even if KWMU were not legally required to acknowledge its underwriters,
UMSL as the licensee of the broadcaster arguably still has the discretion to reject the
underwriting funds in the first instance. 47 U.S.C. § 301(a)(1) specifically states that
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Television Comm'n, 688 F.2d 1033, 1044 (5th Cir. 1982) (en banc) (Muir) ("The First
Amendment does not prohibit the government itself from speaking, nor require the
government to speak. Similarly, the First Amendment does not preclude the
government from exercising editorial discretion over its own medium of expression.").
As speaker, UMSL exercises control not only over the decision to accept or reject the
donations, but also over the form and content of the announcements themselves.9 Cf.
Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 833 (1995)
(Rosenberger) ("When the University determines the content of the education it
sponsor identification acknowledgments are necessary where valuable consideration
has to be “accepted by” the broadcaster; presumably, if the licensee can “accept” the
funds, it can voluntarily reject the funds as well. See The FCC and Broadcasting,
1800C1–FCC (December 1998) (implying that stations have discretion to reject
underwriting funds for tobacco and alcoholic beverage producers, even though FCC has
no specific rule directing station licensees to accept or reject such funds). Moreover,
appellants can offer no support in the case law for the proposition that, where
descriptive information about the donor is conveyed to the public, a donor has a First
Amendment right to have its cash contribution accepted by the donee, in this case,
UMSL.
9
Appellants contend that, because KWMU does not investigate, promote, or
vouch for the underwriter's products, services, or goals, the announcements therefore
must express the views of the underwriters, not the government. See Brief of
Appellants at 40. Although the logograms, slogans, and product summaries in these
fifteen-second acknowledgments may in fact identify the underwriter, conveyance of
this collateral information remains a communicative act of the government, even if it
only involves a compilation of third-party speech. See Forbes, 118 S. Ct. 1633, 1639
("Although [broadcaster] programming decisions often involve the compilation of the
speech of third parties, the decisions nonetheless constitute communicative acts."); see
also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S.
557, 570 (1995) (noting that a speaker need not "generate, as an original matter, each
item featured in the communication"). Notably, this governmental announcement of
broadcast sponsorship is a far cry from letters to the editor published in a government
newspaper, where the letters (while edited for space limitations) are more obviously the
speech of the writer, not the government. See
Bryant, 862 F. Supp. at 580.
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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.") (emphasis added); Schneider, 875
F.2d at 1540 (noting that, where "the activity is not designed to function as a pure
marketplace of ideas, 'the state may regulate content in order to prevent hampering the
primary function of the activity.'") (quoting
Muir, 688 F.2d at 1050)). KWMU staff
members compose, edit, and review acknowledgment scripts to insure compliance with
both FCC and internal guidelines. Moreover, the station does not broadcast "pre-
produced" announcements submitted by underwriters; instead, KWMU employees
themselves read the acknowledgments on air.10 Finally, as speaker and licensee,
UMSL is ultimately responsible for all of its broadcast material, including the
underwriting announcements, and is subject to sanctions for failure to comply with its
legal obligations. See 47 U.S.C. §§ 309(a) (licensee duty to broadcast for public
necessity, interest, etc.), 503(b)(1), (b)(2)(A) (forfeiture provisions). As appellees
point out, "[i]t would be anomalous to impose these penalties on a station for any
speech other than its own." Brief for Appellees at 29.
Even assuming arguendo that insulation from forum analysis only arises for
government speech adequately related to matters of editorial or journalistic discretion,11
10
Appellants also argue that the district court's reference to KWMU employees
is improper, charging that the use of government employees for the transmission of the
message is irrelevant to the analysis. Appellants misread the district court's analysis.
The district court merely noted that, given the substantial editing, review, and lack of
pre-produced messages, the announcements did not involve the expression of views
with "minimal intrusion by the broadcaster," a criterion which helped form the basis for
the Forbes Court's forum analysis of candidate debates.
11
The Supreme Court has recently distinguished, in dicta, between speech on
government property and speech by the government. In Rosenberger, 515 U.S. at 833,
the Court noted that "when the State is the speaker, it may make content-based
choices." Specifically, the Court has "permitted the government to regulate the content
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we believe that KWMU's enhanced underwriting program meets that prerequisite.
Decisions about what material to broadcast (including underwriting acknowledgments)
involve editorial discretion because the broadcaster must decide whether to publish,
what to publish, what to say, and what not to say. See CBS, 412 U.S. at 124 ("For
better or worse, editing is what editors are for; and editing is selection and choice of
material."); 1 New Shorter Oxford English Dictionary 784 (4th ed. 1993) (defining
"edit" as "bring into order for publication after compilation by others or oneself").
Given that UMSL's license and corresponding obligations extend to "all matter
broadcast," 47 U.S.C. §§ 301, 317, its editorial discretion is co-extensive and not
limited to appellants' strict definition of "programming." See CBS, 412 U.S. at 123-25
(holding that broadcast licensees are not required to accept all paid political
advertisements, because such forced access would "tend to transform broadcasters into
common carriers and would intrude unnecessarily upon the editorial discretion of
broadcasters.") (quoting FCC v. League of Women Voters,
468 U.S. 364, 379 (1984));
see also
Turner, 512 U.S. at 636 (noting that the editorial discretion of cable operators
extends not only to its choice of programs but also to "which stations . . . to include in
its repertoire") (quoting Los Angeles v. Preferred Communications, Inc.,
476 U.S. 488,
494 (1986)). In the instant case, UMSL did not wish to "publish" a financial
association with the Missouri KKK. Because "accepting" underwriting funds from the
of what is or is not expressed when it is the speaker or when it enlists private entities
to convey its own message."
Id. Morever, whereas forum analysis and viewpoint
neutrality may be required when the government "expends funds to encourage a
diversity of views from private speakers," the government's "own speech . . . is
controlled by different principles."
Id. at 834. Aside from these statements, no other
Supreme Court decisions define the limitations, if any, which would be placed on such
governmental speech. See 4 Ronald D. Rotunda & John E. Nowak, Treatise on
Constitutional Law § 20.11, at 279 & n.2 (3d ed. 1999) (noting scholarly work on the
governmental speech question). Because the speech in the instant case is also
sufficiently editorial in character to fall within the scope of Forbes, we need not decide
whether its status as governmental speech is alone enough to preclude forum analysis.
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Missouri KKK would trigger statutorily-mandated publication, UMSL utilized its
editorial discretion by rejecting the proposed sponsorship in the first place and thus
choosing to remain silent.12 To require UMSL to accept program sponsorship from all
sources would surely intrude upon the editorial discretion which Congress delegated.
See CBS, 412 U.S. at 124-25 ("That editors – newspapers or broadcast – can and do
abuse this [editorial] power is beyond doubt, but that is no reason to deny the discretion
Congress provided. Calculated risks of abuse are taken in order to preserve higher
values . . . . To agree that debate or public issues should be 'robust, and wide-open'
does not mean that we should exchange 'public trustee' broadcasting, with all its
limitations, for a system of self-appointed editorial commentators.").
Appellants' analogy to public transit and airport ads is ill-chosen. As stated
supra, the advertising in those cases communicated the speech of private individuals
and groups, whereas the announcements here were the government's acknowledgments
of program funding sources. Second, the underwriting spots do not fall within
conventional understandings of promotional advertising, where companies freely
trumpet their products and services. See 47 U.S.C. § 399b (forbidding public
broadcasters from airing "advertisements," which "promote any service, facility, or
product offered by any person who is engaged in such offering for profit" or which
"express the views of any person with respect to any matter of public importance or
interest."); see also 1992 Order, 7 F.C.C.R. 827 (clarifying scope of limits on
underwriting announcements); 1984 Order, 97 F.C.C.2d at 263 (severely limiting
content of underwriting announcements to certain types of identifying, but not
promotional, information). Finally, the sponsorship identifications (and the donations
12
Appellants' argument to the contrary, see Brief for Appellants at 43,
Chancellor Touhill's status as a non-journalist does not undercut her power to make
editorial determinations, because such decisionmaking power is vested in the
broadcaster licensee and delegated to the Chancellor. See CBS, 412 U.S. at 124;
Muir,
688 F.2d at 1044 (upholding university vice-president's decision to cancel a program
on university's public television station).
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that precede them) are related to the journalistic purposes of the station, in that the
acknowledgments convey important, federally-mandated information to the public
about the source of funding for particular broadcast material. This "news" relates to
the purposes and functions of a noncommercial educational FM broadcaster, whereas
public transit and airport ads are only incidental to the primary goal of transportation.
Cf. International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 682
(1992) (noting that goal of public airport terminal was "the facilitation of passenger air
travel," not "the promotion of expression.").
In response to appellants' final argument, we note that forum analysis is not
required by the mere fact of UMSL's creation of an enhanced underwriting program.
UMSL instituted the enhanced underwriting program not to communicate underwriters'
views, but rather to gather financial support for KWMU, to acknowledge such funding,
and to provide brief identifications of its underwriters. The presence of government
speech in the instant case makes inappropriate appellants' comparison of the enhanced
underwriting program to the exception for candidate debates, given that those debates
"allow[ed] the candidates to express their views with minimal intrusion by the
broadcaster." Forbes, 118 S. Ct. at 1640 (emphasis added). As stated before, no such
private speech is at issue here.
Conclusion
We agree with the district court's conclusion that appellants' rights under the
First and Fourteenth Amendments were not violated and appellees are entitled to
judgment as a matter of law. Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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