Chandler v. Georgia Public Telecommunications Commission

917 F.2d 486

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 31, 1990
• Docket: No. 90-8968
• Status: Published

Opinions

PER CURIAM:

On September 17, 1990, appellee Walker Chandler (“Chandler”) filed suit in federal district court against the Georgia Public Telecommunications Commission (“GPTC”), an instrumentality of the State of Georgia. Chandler, the Libertarian candidate for lieutenant governor of Georgia, sought to enjoin GPTC from broadcasting a political debate on November 2, 1990, between the Democratic and Republican candidates for lieutenant governor unless he were included as a debating participant. Carole Ann Rand (“Rand”), the Libertarian candidate for governor, intervened as plaintiff and sought a similar injunction against the broadcast of a similar debate on November 4, 1990, between the Democratic and Republican candidates for governor.¹ After the plaintiffs had amended their complaint to add the members of GPTC in their individual and official capacities, the district court on October 18, 1990, issued a temporary restraining order. 749 F.Supp. 264. Basing its decision on First Amendment and Equal Protection grounds, the district court enjoined the defendants from televising either debate unless they included the Libertarian candidates. This expedited appeal followed.² Briefs were filed on a time-shortened schedule, and we heard oral argument in Atlanta on October 30. We VACATE the district court’s order permanently and REMAND with instructions to dismiss the complaint.

In view of the fact that the parties are in need of a prompt resolution of the issues, we delay the issuance of our judgment only long enough for the following succinct opinion.

I. FIRST AMENDMENT

This court has held that the degree of control that a public broadcast licensee can exercise over its broadcast programming consistent with the First Amendment depends on the mission of the communicative activity being controlled. Schneider v. Indian River Community College Found., Inc., 875 F.2d 1537, 1541 (11th Cir.1989).³ Where the activity does not function as a pure marketplace of ideas, the state is permitted to regulate content in order to prevent hampering the primary function of the activity. Id. (citing Muir, 688 F.2d at 1050). Were GPTC a medium open to all who have a message, whatever its nature, GPTC would function as a marketplace of ideas. See Muir, 688 F.2d at 1052 (Rubin, J., concurring). GPTC, however, is not such a medium. GPTC is “created, designed, and intended for the purpose of providing educational, instructional, and public broadcasting services to the citizens of the State of Georgia.” O.C.G.A. § 20-13-5(a) (Supp.1990). Further, as a public television station, GPTC is under an obligation to serve the public interest. Schneider, 875 F.2d at 1541. As testimony indicated, GPTC’s employees make editorial decisions on a daily basis determining which programs to air in order to meet the needs and interests of Georgia’s citizens. Obviously a decision to broadcast one program excludes, for that time, all other programs.⁴ Members of the public are not provided free access to GPTC air time.

It is clear that GPTC “regulated content” by making a decision to air debates between candidates of the major parties. Contrary to the district judge’s order, however, this content-based decision is not viewpoint restrictive and does not violate the First Amendment. As noted above, GPTC makes content-based decisions on a regular basis in order to serve Georgians. A decision to air any show is necessarily content-based. GPTC chose to air a debate between only the Democratic and Republican candidates because it believed such a debate would be of the most interest and benefit to the citizens of Georgia. Such a decision promoted GPTC’s function, was “reasonable” and was “not an effort to suppress expression merely because public officials oppose the speaker’s views.” Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985).

Finding no policy or practice of GPTC that “pervasively ‘curtail[s] access to ideas,’ lending a constitutionally impermissible, discriminatory bias to the station’s mission,” Schneider, 875 F’.2d at 1541, we conclude that the district court erred in basing its order on First Amendment grounds.⁵

II. EQUAL PROTECTION

The district court concluded that, for many of the same reasons that appellants’ actions violated the First Amendment, a violation of the Equal Protection Clause of the Fourteenth Amendment also existed. Appellees are not members of a protected class, and thus appellants need only exhibit a rational basis for their decisions. See Eide v. Sarasota County, 908 F.2d 716, 722 (11th Cir.1990). As we determined above, appellants’ decisions were rational, and we thus find no Equal Protection violation.⁶

III. CONCLUSION

Our view does not mandate, authorize or predict Orwellian state thought control through selective airing of viewpoints on public television stations. Without deciding, we can safely predict that the use of state instrumentalities to suppress unwanted expressions in the marketplace of ideas would authorize judicial intervention to vindicate the First Amendment. Short of that, public television stations must, no matter what may be the wishes of state government personalities, abide by the dictates of 47 U.S.C. § 315 regarding fairness and balance or lose their licenses.

The dissent is facially appealing insofar as it deplores the failure of the appellants to invite just one more participant to each program. Whether that is good policy is, we believe, for the program decisions of the station. Were we to hold that such an invitation is required by the Constitution, we could see no principled basis upon which that rule could be limited to the candidate who has obtained a ballot position and not extended to all other serious candidates. A decision to air the debate between the two front runners, or the three who will appear on the ballot, or others, is appropriately made by the programmers undertaking to provide an educational program of sufficient interest to attract viewers. The mixture of ideas, protected by the First Amendment, is just as protected when offered by a write-in candidate as by one on the ballot by petition, by primary election, or by party convention. We are not willing to establish a precedent that would require public television stations to forego the broadcast of controversial views touching upon important public issues — environment, ecology, animal rights, ozone depletion — lest the airing of such programs require the inclusion of a cacophony of differing views on each subject. The values sought to be fostered by the First Amendment would be frustrated, not furthered, by the fitting of such harnesses on public television.

We review the district court’s grant of preliminary injunctive relief for abuse of discretion. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983). For the foregoing reasons, we conclude that the district judge did abuse his discretion in finding a substantial likelihood of success on the merits. Because appellees do not meet the first part of the test for a preliminary injunction, we need not address the other elements of the test. Id.

We thus VACATE the district court’s order permanently and REMAND with instructions to dismiss the complaint.

1 . Chandler and Rand were offered thirty minutes of air time on the GPTC stations to present their views.

2 . Subsequent to the district court's order, The Atlanta Journal and The Atlanta Constitution, the party responsible for paying the cost of the stage set-up for the gubernatorial debate (GPTC is responsible for broadcast and other costs), intervened to pursue an appeal. The newspaper has no active role in the lieutenant gubernatorial debate; GPTC itself decided to initiate and broadcast that debate.

3 . In Schneider, we cited Judge Rubin’s concurring opinion in Muir v. Alabama Educ. Television Comm'n, 688 F.2d 1033 (5th Cir.1982) (en banc), cert. denied, 460 U.S. 1023, 103 S.Ct. 1274, 75 L.Ed.2d 495 (1983), a former Fifth Circuit case that is binding precedent under Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982). Judge Rubin's concurrence is the holding of Muir because, absent a majority opinion, the narrowest concurrence is the holding of the case. Schneider, 875 F.2d at 1541.

We note that appellees contend that Schneider and Muir should not control this case. We disagree. While the facts of those cases are not identical to the instant case, those cases addressed a very similar issue to the one before us: the extent of discretion a public broadcast licensee can exercise consistent with the First Amendment.

4 .In a similar vein, it might be said that plaintiffs were excluded from the program. The decision to air a debate between the Democrat and Republican candidates may be said to exclude, by not including, all others, Libertarian, write-in or potentials.

5 . We note that we are not alone in finding that the First Amendment does not necessarily grant political candidates the right to be included in candidate debates. See, e.g., DeYoung v. Patten, 898 F.2d 628, 632-33 (8th Cir.1990) (finding, among other things, that minor party candidate who had not been included in a debate conducted and televised by Iowa Public Television had "no First Amendment right to appear on television, at least to any extent greater than the limited right of access granted by the equal time provision of the Federal Communications Act”), and the cases cited therein.

6 . We thus need not address the debate among the parties over Equal Protection cases from other circuits.