Muir v. Alabama Educational Television Commission

688 F.2d 1033, 66 A.L.R. Fed. 585

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 15, 1982
• Docket: Nos. 80-7546, 81-2011
• Status: Published

Opinions

JAMES C. HILL, Circuit Judge:

I. Introduction

The two appeals before this Court on consolidated rehearing raise the important and novel question of whether individual viewers of public television stations, licensed by the Fedéral Communications Commission to state instrumentalities, have a First Amendment right to compel the licensees to broadcast a previously scheduled program which the licensees have decided to cancel. For the reasons stated below we find that the viewers do not have such a right.

Both cases before us concern the decisions of the licensees not to broadcast the program “Death of a Princess.” In Muir v. Alabama Educational Television Commission, 656 F.2d 1012 (N.D. Ala. 1980), the District Court for the Northern District of Alabama denied the plaintiff viewers’ motion for a preliminary injunction requiring the defendant licensee, Alabama Educational Television Commission (AETC), to broadcast the program. The district court found: (1) that the likelihood of success on the merits criterion for an injunction had not been shown; (2) that the First Amendment protects the right of broadcasters, private and public, to make programming decisions free of interference; and (3) that viewers have no First Amendment right of access to the Alabama educational television network sufficient to compel the showing of “Death of a Princess.” The court granted summary judgment for AETC.

In Barnstone v. University of Houston, 514 F.Supp. 670 (S.D. Tex. 1980), the District Court for the Southern District of Texas reached a different conclusion and granted the injunction requested by the plaintiff viewers and ordered the defendant licensee, University of Houston, to broadcast the program. The court held that KUHT-TV, the television station operated by the university, was a public forum and as such it could not deny access to speakers —here, the producers of “Death of a Princess” — who wished to be heard in the public forum, unless its reasons for doing so could withstand the rigorous scrutiny to which “prior restraints” are traditionally subjected.

On appeal a panel of this court affirmed the District Court’s decision in Muir.1 The panel held that the plaintiffs had no constitutional right to compel the broadcast of “Death of a Princess,” and that AETC’s refusal to broadcast the program was a legitimate exercise of its statutory authority as a broadcast licensee and was protected by the First Amendment. In Barnstone another panel of this court found that the decision in Muir required that the panel reverse the judgment of the District Court for the Southern District of Texas and dissolve the injunctive relief which had been granted the plaintiffs.²

We directed that both cases be consolidated and reheard en banc. We now affirm the judgment of the District Court for the Northern District of Alabama in Muir and reverse the judgment of the District Court for the Southern District of Texas in Barn-stone.

II. Factual Background

The Muir case arose when AETC decided not to broadcast “Death of a Princess,” which had been scheduled for broadcast on May 12, 1980 at 8:00 P.M. The program, one of thirteen in the series “World,” is a dramatization of the investigation by the program’s director, producer and co-author into the motivations and circumstances which were said to have led to the July 1977 execution for adultery of a Saudi Arabian princess and her commoner lover.³

AETC, organized under Ala. Code § 16-7 — 1, is responsible for “making the benefits of educational television available to and promoting its use by inhabitants of Alabama” and has “the duty of controlling and supervising the use of channels reserved by the Federal Communications Commission to Alabama for noncommercial, educational use.” Ala. Code § 16-7-5. AETC operates a statewide network of nine noncommercial, educational television stations licensed by the Federal Communications Commission under the Communications Act of 1984 (47 U.S.C. §§ 151, et seq.). AETC is funded through state legislative appropriations from the Special Education Trust Fund, matching federal grants through the Corporation for Public Broadcasting (CPB), and private contributions.

AETC is a member of the Public Broadcasting Service (PBS), a non-profit corporation distributing public, non-commercial television programs to its members by satellite. AETC is also a member of the Station Program Cooperative (SPC), a program funding and acquisition mechanism operated by PBS. Membership in SPC entitles licensees to participate in the selection and funding of national public television programs distributed by PBS. Only those licensees who contribute to a program’s cost have a right to broadcast it. Those who contribute are free to broadcast or not to broadcast the program.⁴

PBS’s acquisition of the program series “World” was funded by 144 public television licensees, including AETC, through the SPC. During the week prior to the scheduled broadcast of “Death of a Princess” AETC received numerous communications from Alabama residents protesting the showing of the program. The protests expressed fear for the personal safety and well-being of Alabama citizens working in the Middle East if the program was shown. On May 10 AETC announced its decision not to broadcast the film as scheduled.

Appellants, Muir, Buttram and Faircloth, residents of Alabama who had planned to watch “Death of a Princess,” brought this action on May 12, 1980 under the First and Fourteenth Amendments and 42 U.S.C. § 1983, seeking to compel AETC to broadcast the film, and preliminary and permanent injunctions against AETC’s making “political” decisions on programming.

The Barnstone case arose in a factual context similar to that of Muir. The University of Houston is a co-educational institution of higher learning funded and operated by the State of Texas. See Tex. Educ. Code Ann. §§ 111.01 et seq. The university funds and operates KUHT-TV, a public television station licensed to the university by the F.C.C. As a member of the SPC, KUHT-TV contributed to the funding of the “World” program series. KUHT-TV scheduled “Death of a Princess” for broadcast on May 12, 1980 at 8:00 P.M.

On May 1, 1980 KUHT-TV announced that it had decided not to broadcast the program. This decision was made by Dr. Patrick J. Nicholson, University of Houston Vice-President for Public Information and University Relations. Dr. Nicholson had never previously made a programming decision such as this, though as the university official charged with the responsibility of operating KUHT-TV he had the power to do so. In a press release announcing the cancellation Dr. Nicholson gave the basis of his decision as “strong and understandable objections by the government of Saudi Arabia at a time when the mounting crisis in the Middle East, our long friendship with the Saudi government and U.S. national interests all point to the need to avoid exacerbating the situation.” Dr. Nicholson also expressed a belief that the program was not balanced in a “responsible manner.” ⁵

Upon learning of Dr. Nicholson’s decision, on May 8,1980, plaintiff Barnstone brought suit to require KUHT-TV to air “Death of a Princess.”⁶ Ms. Barnstone argued that as a subscriber to and regular viewer of KUHT-TV her First and Fourteenth Amendment rights were violated by the decision to cancel the program.

III. The First Amendment Does Not Prohibit Governmental Expression

The central argument advanced by the plaintiffs on appeal is that their First Amendment rights were violated when the defendants, as state actors, denied the plaintiffs an opportunity to view “Death of a Princess” on the public television stations operated by the defendants. We are thus called upon to determine whether the First Amendment rights of viewers impose limits on the programming discretion of public television stations licensed to state instrumentalities.

The First Amendment operates to protect private expression from infringement by government. Such protection applies both to the right to speak and the right to hear and is operative in a variety of contexts.⁷ The amendment prohibits government from controlling or penalizing expression which has been singled out by government because of the expression’s viewpoint.⁸ The First Amendment also prohibits government from taking certain actions which impermissibly constrict the flow of information or ideas.⁹

The plaintiffs emphasize that the protection of the First Amendment extends only to private expression and not to governmental expression. They assert that the amendment serves only to confer duties on government — not rights.¹⁰ While this argument of the plaintiffs may be essentially correct it in no way resolves the issue before us. To find that the government is without First Amendment protection is not to find that the government is prohibited from speaking or 'that private individuals have the right to limit or control the expression of government. Even without First Amendment protection government may “participate in the marketplace of ideas,” and “contribute its own views to those of other speakers.” Community Service Broadcasting v. F.C.C., 593 F.2d 1102, 1110 n. 17 (D.C. Cir. 1978).¹¹ As Justice Stewart aptly noted in Columbia Broadcasting Systems, Inc. v. Democratic National Committee, 412 U.S. 94, 139, n. 7, 93 S.Ct. 2080, 2105, n. 7, 36 L.Ed.2d 772 (1973) (Stewart, J., concurring) (hereinafter CBS), “[gjovernment is not restrained by the First Amendment from controlling its own expression . . . ‘[t]he purpose of the First Amendment is to protect private expression and nothing in the guarantee precludes the government from controlling its own expression or that of its agents.’ ”¹²

Our essential task thus does not center on determining whether AETC- and the University of Houston are vested with a First Amendment right to make the programming decisions which they made regarding “Death of a Princess.” In the absence of a violation of a constitutional right inhering in the plaintiffs, AETC and the University of Houston are free to make whatever programming decisions they choose, consistent with statutory and regulatory requirements. The fundamental question before us is whether in making the programming decisions at issue here, the defendants violated the First Amendment rights of the plaintiffs.

IV. The Regulatory Framework Enacted by Congress

Our inquiry into the constitutional issue at hand is aided by a brief review of the broadcast legislation enacted by Congress.¹³ Such a review reveals an attempt by Congress to establish a regulatory system that accommodates the First Amendment interests of the public and of the private broadcast licensees and, it appears, the interests of government broadcast licensees unless otherwise limited by proper legislation.¹⁴

Prior to 1927 the allocation of broadcast frequencies was left entirely to the private sector and the result was “chaos.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375, 89 S.Ct. 1794, 1798, 23 L.Ed.2d 371 (1968) (hereinafter Red Lion). It quickly became apparent that governmental regulation of the electromagnetic spectrum was essential if the spectrum was to be optimally utilized. “Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.” Red Lion, 395 U.S. at 376, 89 S.Ct. at 1799. Congress was confronted with a fundamental choice between total governmental ownership and control of the broadcast media — the choice of most other countries — or some other alternative. The decision of Congress to establish a system of broadcast licensing rather than government monopolization reflects “a desire to maintain for licensees so far as consistent with necessary regulation a traditional journalistic role.” CBS, 412 U.S. at 116, 93 S.Ct. at 2093 (Burger, C.J., writing for three members of the court). Congress was, however, cognizant of the fact that the Nation’s airwaves are a public resource not subject to private ownership. Thus, in enacting a regulatory scheme for the broadcast media, Congress was sensitive to the need to protect the rights of the public. The Court in Red Lion aptly noted that because of the scarcity of radio frequencies Congress is permitted to legislate a licensing regime which limits the number of people allowed to broadcast, but that “the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.” Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806. The Court went on to observe that the purpose of the First Amendment in the context of broadcasting is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.” Id. at 390, 89 S.Ct. at 1806.

Congress thus enacted the Radio Act of 1927 which established the Federal Radio Commission to allocate frequencies among competing applicants in a manner responsive to the public “convenience, interest, or necessity.” ¹⁵ The Radio Act of 1927 was not only protective of the First Amendment interests of the public but it also recognized and sought to protect the First Amendment interests of broadcast licensees. The Court in CBS, 412 U.S. at 105, 93 S.Ct. at 2087, observed that in enacting this legislation “Congress chose to leave broad journalistic discretion with the licensees.” The Court noted further that “Congress specifically dealt with and firmly rejected the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues.” Id.

The Communications Act of 1934, 47 U.S.C. §§ 151 et seq., the successor to the Radio Act of 1927, was similarly designed by Congress to promote a balance between the First Amendment interests of the public and of the broadcast licensees. In furtherance of the First Amendment rights of the public the Communications Act specifically mandates that the Federal Communications Commission consider the public interest in the course of granting licenses, 47 U.S.C. (a), 309(a); renewing them, 47 U.S.C. § 307; and modifying them.¹⁶ The FCC is also required to consider the public interest in promulgating rules and regulations governing the use of broadcast licenses. 47 U.S.C. § 303.

In affirming the First Amendment interests of broadcast licensees § 3(h) of the Communications Act specifically provides that broadcast licensees are not to be deemed common carriers.¹⁷ The Court in CBS observed that this along with other provisions “evince a legislative desire to preserve values of private journalism under a regulatory scheme which would insure fulfillment of certain public obligations.” CBS, 412 U.S. at 109, 93 S.Ct. at 2089.¹⁸ The FCC has, consequently, fulfilled its statutory obligations by promulgating regulations which view licensees as having the sole right and nondelegablé responsibility to select the programs to be broadcast.¹⁹ The Court in Cosmopolitan Broadcasting Corp. v. FCC, 581 F.2d 917, 921 (D.C. Cir. 1978), pointed out that:

A basic premise of Commission policy is that a licensee is a ‘trustee’ for the public and that he must therefore assume the ‘primary duty and privilege to select the material to be broadcast to his audience .. . ’ [cites omitted] ‘The Commission has always regarded the maintenance of control over programming as a most fundamental obligation of the licensee.’ [cites omitted]

Public television licensees are generally subjected to the same regulatory requirements as their commercial counterparts. See Accuracy in Media, Inc. v. FCC, 521 F.2d 288, 291 (D.C. Cir. 1975), cert. denied, 425 U.S. 934, 96 S.Ct. 1664, 48 L.Ed.2d 175 (1976). Thus the FCC, in its demand for unfettered licensee control over programming has made no distinction between private and public licensees. City of New York Municipal Broadcasting System, 56 F.C.C.2d 169 (1975).

The Public Broadcasting Act of 1967²⁰ enacted by Congress to provide financial assistance for programming and the operations of public broadcasters further illustrates a Congressional desire that public broadcast licensees retain independent programming responsibility. In enacting this statute Congress expressed the belief that the “local stations are the bedrock” and they rather than anyone else, are to “retain the responsibility to assess community needs and determine what programs will best meet those needs.” S. Rep. No. 222, 90th Cong., 1st Sess. 7 (1967), U.S. Code Cong. & Admin. News 1967, p. 1772, 1778. Congress noted that “the decision to broadcast . . . [any] program remains with the local station,” id. at 15, U.S. Code Cong. & Admin. News 1967, p. 1786, and “each station would be required to make its own decision as to what programs it accepts and broadcasts and at what time.” Id. at 14-15,²¹ U.S. Code Cong. & Admin. News 1967, p. 1786.

The picture which emerges from the regulatory scheme adopted by Congress is one which clearly shows broadcast licensees endowed with the privilege and responsibility of exercising free programming control of their broadcasts, yet also charged with the obligation of making programming decisions which protect the legitimate interests of the public. The right to the free exercise of programming discretion is, for private licensees, not only statutorily conferred but also constitutionally protected. CBS. Under the existing statutes public licensees such as AETC and the University of Houston possess the same rights and obligations to make free programming decisions as their private counterparts; however, as state instrumentalities, these public licensees are without the protection of the First Amendment. This lack of constitutional protection implies only that government could possibly impose restrictions on these licensees which it could not impose on private licensees. The lack of First Amendment protection does not result in the lessening of any of the statutory rights and duties held by the public licensees. It also does not result in individual viewers gaining any greater right to influence the programming discretion of the public licensees.

V. KUHT-TV and AETC are not Public Forums

It is clear that Congress did not deem it necessary for viewers to be accorded a right of access to television broadcast stations in order for the public’s First Amendment interests in this medium to be fully realized. Indeed it is clear that Congress concluded that the First Amendment rights of public television viewers are adequately protected under a system where the broadcast licensee has sole programming discretion but is under an obligation to serve the public interest. In spite of this Congressional scheme the District Court in Barnstone found that KUHT-TV was a public forum because it was operated by the government for public communication of views on issues of political and social significance. The court held that as a public forum the station could not deny access to speakers who wished to be heard in the forum, unless the requirements for prior restraint were satisfied. 514 F.Supp. at 689-91.

The plaintiffs now urge that we affirm the District Court’s ruling that public television stations are public forums. The plaintiffs, unlike the District Court, however, do not argue for a public right of access to the stations. Instead the plaintiffs contend that as public forums the stations are prohibited by the First Amendment from making programming decisions motivated by hostility to the communicative impact of a program’s message and stemming from a specific viewpoint of the broadcaster.

We find both the holding of the District Court and the argument of the plaintiffs to be incorrect. The Supreme Court has recently rejected the theory adopted by the District Court that because a government facility is “specifically used for the communication of information and ideas” it is ipso facto a public forum. United States Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 101 , 2685 n. 6, 69 L.Ed.2d 517 (1981).²² A facility is a public forum only if it is designed to provide a general public right of access to its use, or if such public access has historically existed and is not incompatible with the facility’s primary activity.²³ In Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016 (5th Cir. 1972), we adopted the following test for determining whether a public facility is a “public forum”:

does the character of the place, the pattern of usual activity, the nature of its essential purpose and the population who take advantage of the general invitation extended make it an appropriate place for communication of views on issues of political and social significance.

457 F.2d at 1019.

In the cases in which a public facility has been deemed a public forum the speakers have been found to have a right of access because they were attempting to use the facility in a manner fully consistent with the “pattern of usual activity” and “the general invitation extended.”²⁴ The pattern of usual activity for public television stations is the statutorily mandated practice of the broadcast licensee exercising sole programming authority. The general invitation extended to the public is not to schedule programs, but to watch or decline to watch what is offered.²⁵ It is thus clear that the public television stations involved in the cases before us are not public forums. The plaintiffs have no right of access to compel the broadcast of any particular program.

Our holding today is consistent with the Supreme Court’s ruling in CBS that television stations operated by private broadcast licensees provide no public right of access. The Court in CBS pointed out that the creation of a public right of access to television stations would result in the derogation of the licensees’ duty to insure that their stations serve the public interest:

The result would be a further erosion of the journalistic discretion of broadcasters in the coverage of public issues, and a transfer of control over the treatment of public issues from the licensees who are accountable for broadcast performance to private individuals who are not. The public interest would no longer be “paramount” but, rather, subordinate to private whim.

CBS, 412 U.S. at 124, 93 S.Ct. at 2097. The court further observed that, aside from being inconsistent with the licensees’ obligation to insure that the public interest is served, a public right of access is also inconsistent with the licensees’ essential task of exercising editorial discretion:

Nor can we accept the Court of Appeals’ view that every potential speaker is “the best judge” of what the listening public ought to hear or indeed the best judge of the merits of his or her views. All journalistic tradition and experience is to the contrary.

Id.

The plaintiffs stress that they do not argue for the creation of a public right of access to public television stations. They contend that, even without a public right of access, the stations are public forums and as such cannot make programming decisions based on the communicative impact of a program. We find this contention to be untenable. It is the right of public access which is the essential characteristic of a public forum and the basis which allows a speaker to challenge the state’s regulation of the forum. The gravamen of a speaker’s public forum complaint is the invalid and discriminatory denial of his right of access to the forum. If a speaker does not have a right of access to a facility, that facility by definition is not a “public forum” and the speaker is without grounds for challenge under the public forum doctrine.²⁶

VI. The Decision to Cancel Death of a Princess was not Governmental Censorship

The plaintiffs argue that even if we decline to characterize KUHT-TV and AETC as public forums we should nonetheless find that the defendants violated the plaintiffs’ First Amendment rights by “censoring” “Death of a Princess.” The plaintiffs contend that censorship, in violation of the First Amendment, occurs when state officials in charge of state operated public television stations decide to cancel a scheduled program because of the officials’ opposition to the program’s political content.

There is no question that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content .... The essence of this forbidden censorship is content control.” Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-2290, 33 L.Ed.2d 212 (1972). However, the First Amendment prohibitions applicable to one method of expression do not always transfer intact to another method because “[ejach method tends to present its own peculiar problems.” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). The Supreme Court has thus recognized that “because the broadcast media utilize a valuable and limited public resource” they “pose unique and special problems not present in the traditional free speech case.” CBS, 412 U.S. at 101, 93 S.Ct. at 2085.

We are not convinced that editorial decisions of public television stations owned and operated by the state must, or should, be viewed in the same manner and subjected to the same restrictions as state regulatory activity affecting speech in other areas. 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 Government is allowed to impose restrictions only as to “time, place, or manner” in the use of such public access facilities — public forums.²⁸ As we observed earlier, however, the First Amendment does not prohibit the government, itself, from speaking, nor require the government to speak.²⁹ Similarly, the First Amendment does not preclude the government from exercising editorial control over its own medium of expression. See Wooley v. Maynard, 430 U.S. 705, 716-17, 97 S.Ct. 1428, 1436-37, 51 L.Ed.2d 752 (1977); Advocates for the Arts v. Thompson, 532 F.2d 792 (1st Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); Avins v. Rutgers, State University of New Jersey, 385 F.2d 151 (3d Cir. 1967), cert. denied, 390 U.S. 920, 88 S.Ct. 855, 19 L.Ed.2d 982 (1968); Network Project v. Corporation for Public Broadcasting, 4 Med. L. Rptr. 2399, 2409 (D.D.C. 1979).

The plaintiffs concede that state officials operating public television stations can- exercise some editorial discretion. They contend, however, that in exercising this discretion the officials must be “carefully neutral as to which speakers or viewpoints are to prevail in the marketplace of ideas.” CBS, Inc. v. FCC, 629 F.2d 1, 30 (D.C. Cir. 1980), aff’d 453 U.S. 367, 101 S.Ct. 2813, 69 L.Ed.2d 706 (1981). The plaintiffs further contend that if the officials restrict a program due to their hostility to the political content of the program then the restriction is presumptively unconstitutional. The plaintiffs suggest that we adopt the evidentiary standard established by the Supreme Court in ML Healthy City School Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Under this standard the initial burden would be on the plaintiffs to show that unconstitutional motivations were a “substantial” or “motivating” factor in the defendants’ decisions to cancel “Death of a Princess.” Once this burden is met by the plaintiffs the duty shifts to the defendants to show that the decisions would have been the same if the improper factor had not been considered.

The plaintiffs’ analysis fails to recognize a number of essential differences between typical state regulation of private expressive activity and the exercise of editorial discretion by state officials responsible for the operation of public television stations. When state officials operate a public television station they must necessarily make discriminating choices. As the Supreme Court pointed out in CBS, 412 U.S. at 124, 93 S.Ct. at 2097, “[f]or better or worse, editing is what editors are for; and editing is selection and choice of material.” In exercising their edito'ml discretion state officials will unavoidably make programming decisions which can be characterized as “politically motivated.” All television broadcast licensees are required, under the public interest standard, to cover political events and to provide news and public affairs programs dealing with the political, social, economic and other issues which concern their community. See, Representative Patsy Mink (WHAR), 59 F.C.C.2d 987 (1976); Fairness Doctrine and Public Interest Standards, 39 Fed. Reg. 26371 (July 18,1974); Report and Statement of Policy re Commission En Banc Programming Inquiry, 44 F.C.C. 2303 (1960). The licensees are thus required to make the inherently subjective determination that their programming decisions are responsive to the needs, problems and interests of the residents of the area they serve. Red Lion, 395 U.S. at 380, 89 S.Ct. at 1801. A general proscription against political programming decisions would clearly be contrary to the licensees’ statutory obligations, and would render virtually every programming decision subject to judicial challenge.

The plaintiffs seek to draw a distinction between a decision not to show a program and a decision to cancel a previously scheduled program. They suggest that while it is a proper exercise of editorial discretion for a licensee initially to decide not to schedule a program, it is constitutionally improper for the licensee to decide to cancel a scheduled program because of its political content. In support of their view the plaintiffs cited decisions holding that school officials may be free initially to decide which books to place in their school libraries but that a decision to remove any particular book may be subject to constitutional challenge.³⁰ We are not persuaded, however, that the distinction urged upon us is valid or that the school library cases are applicable.

The decision to cancel a scheduled program is no less editorial in nature than an initial decision to schedule the program. See Advocates for Arts v. Thomson, 532 F.2d 792 (1st Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976). Both decisions require the licensee to determine what will best serve the public interest, and, as we noted earlier, such a determination is inherently subjective and involves judgments which could be termed “political.”

School libraries are distinguishable from broadcast stations in a number of important ways. There are limited hours in a day for broadcasting, and broadcast licensees are constantly required to make sensitive choices between available programs. Cf. Board of Education v. Pico,-U.S.-, -, n. 1, 102 S.Ct. 2799, 2814, n. 1, 73 L.Ed.2d 435 (1982) (“The school’s finite resources — as well as the limited number of hours in the day — require that educational officials make sensitive choices between subjects to be offered (Blackmun, J., concurring in part). The maintenance of one volume on a library shelf does not (absent space limitations) preempt another. In broadcast, only one transmission of information, entertainment, or other message can occur at any one time. A library constantly and simultaneously proffers a myriad of written materials. As discussed in Part IV, hereinabove, the Congress has undertaken its careful analysis and balancing of conflicting interests involved in broadcasting and in public broadcasting, and the judicial branch should pay careful attention.³¹ CBS, 412 U.S. at 103, 93 S.Ct. at 2086. There have been no comparable deliberations or enactments by that branch with respect to libraries. More specifically, there is no counterpart, vis-a-vis libraries, to the Federal Communications Commission’s “Fairness Doctrine.”³² When a television broadcaster finds that it has scheduled a program espousing one view, it may have unwittingly encumbered its limited broadcast hours with a requirement that equal time be devoted to other viewpoints which might touch upon an issue of limited interest in its viewing area. But the maintenance of one volume espousing one side of an issue does not invoke government regulation requiring that shelf space be made available for all other views. Finally, a school would be expected to furnish only one library for its student population. The residents of a state may expect a choice of a number of television stations, often with the publicly owned facility attracting the smallest number of viewers.

The right to cancel a program is, furthermore, far more integral a part of the operation of a television station than the decision to remove a book from a school library. Libraries typically have at least the opportunity to review a book before acquiring it, therefore, there may be “few legitimate reasons why a book, once acquired, should be removed from a library not filled to capacity.” Pico v. Board of Education, 638 F.2d 404, 436 (2d Cir. 1980) (Newman, J., concurring), aff’d,-U.S.-, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982). In comparison, television stations frequently do not have the chance to see a program until after the station’s schedule has been printed, and there are numerous legitimate reasons why a station may decide to cancel a program it has initially scheduled. Indeed FCC regulations specifically require that licensees retain the power to reject any program which the licensee has already contracted for if the licensee determines that the program is “unsatisfactory or unsuitable or contrary to the public interest.” 47 C.F.R. § 73.658.

We conclude that the defendants’ editorial decisions to cancel “Death of a Princess” cannot be properly characterized as “censorship.” Had the states of Alabama and Texas sought to prohibit the exhibition of the film by another party then indeed a question of censorship would have arisen. Such is not the case before us. The states have not sought to forbid or curtail the right of any person to show or view the film. In fact plaintiff Barnstone has already viewed the film at an exhibition at Rice University in Houston.³³ The state officials in charge of AETC and KUHT-TV have simply exercised their statutorily mandated discretion and decided not to show a particular program at a particular time. There is a clear distinction between a state’s exercise of editorial discretion over its own expression, and a state’s prohibition or suppression of the speech of another.³⁴

VII. The Plaintiffs Can Seek Remedial Relief from the FCC

Our holding that the defendants did not violate the plaintiffs’ First Amendment rights does not preclude the plaintiffs from challenging the propriety of the defendants’ programming decisions with the FCC. Our decision is limited to the constitutional issue presented. We offer no opinion as to whether or not the actions of AETC and the University of Houston comport with their statutory and regulatory obligation.

Under the Communications Act the FCC may at any time, upon public complaint or sua sponte, review the programming selections of its licensees to ascertain whether they are complying with the requirements of the Act, in particular the requirement that the licensee act in the public interest. 47 U.S.C. § 308(b). The FCC routinely reviews complaints similar to those raised by the plaintiffs.³⁵ If the FCC determines that a licensee has engaged in improper programming it can impose a variety of remedial sanctions including: admonishment of the licensee for irresponsible programming judgments, Columbia Broadcasting System (WBBM-TV), imposition of a forfeiture for programming inconsistent with the public interest, Illinois Citizens Committee for Broadcasting v. F.C.C., 515 F.2d 397 (D.C.Cir. 1974); declaration that the licensee has failed to comply with FCC policies, Representative Patsy Mink, issuance of a “short term” renewal, CBS, Inc., 69 F.C.C.2d 1082 (1978); designation of license renewal application for full evidentiary hearing, WTWV, Inc., 52 F.C.C.2d 633 (1977); and denial of license renewal.³⁶

VIII. Conclusion

The decisions of AETC and the University of Houston to cancel “Death of a Princess” did not violate the First Amendment rights of the plaintiffs. The plaintiffs have no constitutional right to compel the broadcast of the program. Accordingly, we find that the District Court for the Northern District of Alabama properly awarded summary judgment to AETC. We also find that the District Court for the Southern District of Texas erred in issuing its order requiring KUHT-TV to broadcast the program.

The judgment of the District Court for the Northern District of Alabama is AFFIRMED.

The judgment of the District Court for the Southern District of Texas is REVERSED and REMANDED. On remand the District Court shall dissolve the injunctive relief and render judgment for appellants.

1 . Muir v. Alabama Educational Television Commission, 656 F.2d 1012 (5th Cir. 1981).

2 . Barnstone v. University of Houston, 660 F.2d 137 (5th Cir. 1981).

3 . “Death of a Princess” was produced jointly by WGBH Educational Foundation, licensee of public television station WGBH-TV in Boston, Massachusetts, and ATV Network of London, England.

4 . PBS’s “Station Users Agreement” reposing in licensees the absolute right to select programs they will broadcast and to determine when they will broadcast them accords with the FCC regulation contained in 47 C.F.R. § 73.658(e) which requires that every broadcaster reserve the right to reject any program offered to it. The FCC requires that every broadcaster consistently maintain independent control over selection of programs as a condition to retention of a license. Cosmopolitan Broadcasting, 59 F.C.C.2d 558 (1976). See p. 1040 infra.

5 . In addition to the reasons cited in the press release, the District Court, upon consideration of Dr. Nicholson’s testimony, found four other reasons why the cancellation decision may have been made. First, Dr. Nicholson testified that he considered the program to be “in bad taste.” Second, Dr. Nicholson expressed concern that some members of the public might believe that the “docu-drama” was a true documentary. Third, Dr. Nicholson testified that the University of Houston had previously entered into a contract with the Saudi Arabian royal family to instruct a particular princess. Finally, Dr. Nicholson testified that he had been in charge of fund raising activities for the university from 1957-1978 and that a significant percentage of the university’s private contributions came from major oil companies and from individuals in oil related companies.

6 . Harvey Malyn was subsequently granted leave to join this action as a party-plaintiff.

7 . See L. Tribe, American Constitutional Law, 580-584 (1978).

8 . See, Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 2289-2290, 33 L.Ed.2d 212 (1972); New York Times Co. v. Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686 (1964).

9 . See Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).

10 . Plaintiffs invoke Justice Stewart’s holding in Columbia Broadcasting Systems, Inc. v. Democratic National Committee, 412 U.S. 94, 139, 93 S.Ct. 2080, 2104, 36 L.Ed.2d 772 (1973) (Stewart, J., concurring) that “[t]he First Amendment protects the press from governmental interference, it confers no analogous protection on the Government.”

11 . See L. Tribe American Constitutional Law, 588 590 (1978); P.A.M. News Corp. v. Butz, 514 F.2d 272 (D.C. Cir. 1975).

12 . Government expression, being unprotected by the First Amendment, may be subject to legislative limitation which would be impermissible if sought to be applied to private expression. Yet there is nothing to suggest that, absent such limitation, government is restrained from speaking any more than are the citizens. Freedom of expression is the norm in our society, for government (if not restrained) and for the people. Freedom of speech is not good government because it is in the First Amendment; it is in the First Amendment because it is good government.

13 . The Supreme Court in CBS observed that First Amendment issues regarding broadcast licensees should be analyzed in light of the Congressionally established statutory and regulatory scheme:

Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public’s right to be informed is 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. For during that time Congress and its chosen regulatory agency have established a delicately balanced system of regulation intended to serve the interests of all concerned.”

412 U.S. at 102, 93 S.Ct. at 2086. The Court went on to point out:

That is not to say we ‘defer’ to the judgment of the Congress and the Commission on a constitutional question, or that we would hesitate to invoke the Constitution should we determine that the Commission has not fulfilled its task with appropriate sensitivity to the interests in free expression. The point is, rather, that when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem.

Id. at 103, 93 S.Ct. at 2086.

14 . Extensive discussion of the history of broadcast regulation is found in CBS at 103-104, 93 S.Ct. at 2086-2087; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-386, 89 S.Ct. 1794, 1798-1804, 23 L.Ed.2d 371 (1968); National Broadcasting Co. v. United States, 319 U.S. 190, 210-17, 63 S.Ct. 997, 1006-09, 87 L.Ed. 1344 (1943).

15 . Radio Act of 1927 § 4, 44 Stat. 1163.

16 . The “public interest” includes the First Amendment interest of the public to receive “suitable access to social, political, esthetic, moral, and other ideas and experiences ...” Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806.

17 . Section 3(h) provides as follows:

‘Common carrier,’ or ‘carrier’ means any person engaged as a common carrier for hire in interstate or foreign communication by wire or radio or in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.

47 U.S.C. § 153(h).

18 . See also FCC v. Midwest Video Corp., 440 U.S. 689, 705, 99 S.Ct. 1435, 1443, 59 L.Ed.2d 692 (1979).

“As we see it § 3(h), consistently with the policy of the Act to preserve editorial control of programming in the licensee, forecloses any discretion in the Commission to impose access requirements amounting to common-carrier obligations on broadcast systems. The provision’s background manifests a congressional belief that the intrusion worked by such regulation on the journalistic integrity of broadcasters would overshadow any benefits associated with the resulting public access. It is difficult to deny, then, that forcing broadcasters to develop a “nondiscriminatory system for controlling access ... is precisely what Congress intended to avoid through § 3(h) of the Act.”

19 . The most salient example is section 73.-658(e) of the Commission’s rules which provides:

No license shall be granted to a television broadcast station having any contract, agreement, or understanding, express or implied, with a network organization which, with respect to programs offered or already contracted for pursuant to an affiliation contract, prevents or hinders the station from (1) rejecting or refusing network programs which the station reasonably believes to be unsatisfactory or unsuitable or contrary to the public interest or (2) substituting a program which, in the station’s opinion is of greater local or national importance.

47 C.F.R. § 73.658(e).

20 . Public Broadcasting Act of Nov. 7, 1967, Pub. L. No. 90-129, 81 Stat. 365.

21 . This insistence on unhindered local licensee programming discretion was codified in Section 396(g)(1)(B) of the Act.

22 . The Court in United States Postal Service ruled that mailboxes are not public forums.

23 . Cf. Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976): “The Court of Appeals was mistaken ... in thinking . . . that whenever members of the public are permitted freely to visit a place owned or operated by the Government, then that place becomes a ‘public forum’ for purposes of the First Amendment. Such a principle of constitutional law has never existed, and does not exist now. The guarantees of the First Amendment have never meant ‘that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.’ ” (quoting Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).

24 . The nature of facilities held to constitute public forums may be gleaned from the cases: municipal auditoriums, Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); bus terminals, Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968); airports, Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 483 (1975); high school auditoriums, National Socialist White People's Party v. Ringers, 473 F.2d 1010 (4th Cir. 1973) (en banc); public libraries, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (plurality opinion); shopping centers, Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968); and welfare offices, Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (2d Cir. 1974).

25 . Similarly producers of television programs are extended no invitation to air their programs on the public television stations. Producers are, of course, free to submit their programs to the stations with a request that they be broadcast, but they have no right to compel such broadcast. The decision whether to broadcast a program remains entirely with the licensee. The District Court for the Southern District of Texas thus erred in finding that the producers of “Death of a Princess” had a right of access to station KUHT-TV to broadcast the film.

26 . See Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976); Lehman v. Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974); Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).

27 . See Bazaar v. Fortune, 476 F.2d 570, 574, aff’d as modified en banc, 489 F.2d 225 (5th Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974) (university literary magazine); Brooks v. Auburn University, 412 F.2d 1171 (5th Cir. 1969) (speaker invited by college student organization).

28 . See L. Tribe 580-584.

29 . See p. 1050 infra; see also Houchins v. KQED, Inc., 438 U.S. 1, 13-14, 98 S.Ct. 2588, 2596, 57 L.Ed.2d 553 (1978).

30 . At the time this case was submitted to us, the plaintiff cited, inter alia, Pico v. Board of Educ., 638 F.2d 404 (2d Cir. 1980), and we noted that the Supreme Court had granted certiorari. On June 15, 1982, the judgment of the Supreme Court was handed down, Board of Educ. v. Pico,-U.S.-, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982). We are unable to interpret the Court’s opinion in Pico to give us guidance in the application of the First Amendment to the case at hand. First, Pico is a case involving a constitutional attack upon the removal of books from a school library which, as discussed in the text, is quite different from the situation confronting us. Further, we conclude that the Supreme Court decided neither the extent nor, indeed, the existence vel non., of First Amendment implications in a school book removal case.

A majority of the justices did not join any single opinion in Pico. There is a plurality opinion, i.e., one attracted more concurrences than did any other opinion leading to the result. The opinion by Justice Brennan is joined by Justice Marshall and Justice Stevens. Justice Blackmun concurred in all save one section, but dissents from the plurality’s opinion that the “right to receive information” detected by Justice Blackmun imposes a duty upon the State to provide information or ideas,-U.S. at —, 102 S.Ct. at 2814, and is dubitante as to the plurality’s opinion that there is a difference between the removal of a book from a school library and the failure to acquire a book. Id. n.l.

The Chief Justice and three others, Justice Powell, Justice Rehnquist and Justice O’Con-nor, in dissent, agree with Justice Blackmun that there is no First Amendment obligation upon the State to provide continuing access to particular books,-U.S. at-, 102 S.Ct. at 2819 (Burger, C. J., dissenting), thus making a majority of Members for that view. The four in dissent find no difference, in constitutional law, in the removal of a book and in the failure to acquire it. Id.-U.S. at-, 102 S.Ct. at 2821. Three Members detect such a difference; four reject the notion; and one Member doubts its existence.

The Fifth Member of the Court voting for the judgment expresses no opinion on the First Amendment issues, being of the opinion that the Court should not, until after remand, “issue a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library.” Id.-U.S. at-, 102 S.Ct. at 2816 (White, J., concurring in the judgment). Justice White does not express the view that there may be facts implicating the First Amendment but, detecting that there may be a factual setting which would not involve constitutional concerns on the part of any Member, prefers a more complete record development before addressing such concerns.

Being instructed by Marks v. United States, 430 U.S. 188, 192-93, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977), and Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion), that in no-clear-majority cases we should look to “that position taken by those members who concurred in the judgment on the narrowest grounds,” id. at 169 n.15, 96 S.Ct. at 2923 n.15, and finding in the opinion of Justice White the narrowest grounds for the judgment, we conclude that Pico is of no precedential value as to the application of the First Amendment to these issues. (For commentary discussing the task of determining precedent from plurality.opinions, see, e.g., Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv. L. Rev. 1127 (1981); Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum. L. Rev. 756 (1980).)

While the majority of the Court entered judgment in Pico resulting in a remand for the development of the record, this was necessarily based upon the status of the record and the issues presented in the case. Here, we are satisfied that the record before us adequately presents the issues.

31 . All branches of government are, and ought to be, guardians of the Constitution. It is no encroachment upon the private preserve of the Judicial Branch for the Congress to undertake implementation of the First Amendment; it is the duty of the Congress to do so. The Judiciary must be the final arbiter, but it is not the sole provider of freedom under the Bill of Rights.

The courts properly pay close attention to the implementation of constitutional guarantees by the Congress. CBS, 412 U.S. at 103, 93 S.Ct. at 2086. Indeed, the Supreme Court has not infrequently deplored the absence of action by the Congress, which, by its nature, is equipped to gather information and consider the impact and effectiveness of proposals to implement such guarantees far more broadly than the considerations advanced in a given case. See, e.g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 421, 91 S.Ct. 1999, 2017, 29 L.Ed.2d 619 (Burger, C. J., dissenting) (absence of Congressional action to implement Fourth Amendment deplored); Stone v. Powell, 428 U.S. 465, 500, 96 S.Ct. 3037, 3055, 49 L.Ed.2d 1067 (Burger, C. J., concurring) (desirability of Congressional implementation of Fourth Amendment again noted).

32 . “Formulated under the Commission’s power to issue regulations consistent with the ‘public interest,’ the [Fairness Doctrine] imposes two affirmative responsibilities on the broadcaster: coverage of issues of public importance must be adequate and must fairly reflect differing viewpoints. In fulfilling the Fairness Doctrine obligations, the broadcaster must provide free time for the presentation of opposing views if a paid sponsor is unavailable and must initiate programming on public issues if no one else seeks to do so.”

CBS, 412 U.S. at 110-11, 93 S.Ct. at 2090-91 (citations omitted).

33 . Thus, contrary to the finding of the District Court in Barnstone, the defendant did not suppress the speech of the producer of “Death of a Princess.” The defendants did not in any manner seek to prevent the producers from freely distributing or exhibiting the film. The defendants chose only not to exhibit the film through the stations which they were licensed to operate.

34 . The state may not suppress the expression of ideas. Thus, the state may not prevent Nazi’s from expressing their views in a parade. National Socialist Party of America v. Village of Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977) (per curiam). There is a right to receive ideas that others express. Therefore, we apprehend that the state could not forbid or unreasonably obstruct, people within its jurisdiction from viewing the Nazi parade. Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965). Nevertheless, the State is free to decline to express itself in such a parade and we apprehend that, should a misguided police chief schedule the appearance of the police force at the head of a Nazi parade, wearing swastika arm bands, there would be no censorship, interference with the right to receive, or other First Amendment violation should the Mayor or City Council cancel the scheduled appearance of the police officers.

35 . See e.g., KMAP, Inc. 72 F.C.C.2d 241 (1979) (suppression of news concerning United Farm Workers Movement); Right to Life of Louisville, Inc., 59 F.C.C.2d 1103 (1976) (refusal to broadcast photographs of live fetuses in womb); RKO General, Inc., 46 F.C.C.2d 240 (1974) (failure to air program about Passover); Representative Patsy Mink (WHAR), 59 F.C.C.2d 987 (1976) (failure to broadcast strip mining program); William Harsha, 31 F.C.C.2d 847 (1971) (refusal to allow George Jessel’s criticism of “The New York Times” and “The Washington Post”); Mrs. Alexandra Mark, 34 F.C.C.2d 434 (1974), aff’d Mark v. FCC, 468 F.2d 266 (1st Cir. 1972) (refusal to allow comments concerning astrology and astrological sign reading); Citizens Communications Center, 25 F.C.C.2d 705 (1970) (refusal to air intimate scene between Black and White actors); Letter to Richard L. Ottinger, 31 F.C.C.2d 852 (1970) (editing of remarks on Chicago conspiracy trial); Gross Telecasting, Inc. 14 F.C.C.2d 239 (1968) (news slanting for private interests of licensee); Tri-State Broadcasting Co., Inc. 59 F.C.C.2d 1240 (1976) (alleged news distortion to promote interests of advertisers); Public Communications, Inc., 49 F.C.C.2d 83 (1974) (deletion of reference to product in entertainer’s monologue); Screen Gems Stations, Inc., 46 F.C.C.2d 252 (1974), recon. denied, 51 F.C.C.2d 557 (1975) (broadcast of Sugar Bowl would be contrary to public interest because the game discriminates against Blacks); Columbia Broadcasting System (Mobile Homes), 43 F.C.C.2d 1266 (1973) (“60 Minutes” segment on mobile homes failed to disclose CBS’s interest in a Florida development); Mark Lane, 37 F.C.C.2d 630 (1972) (deletion of remarks in discussion of Viet Nam War); National Broadcasting Company (Chet Huntley), 14 F.C.C.2d 713 (1968) (Chet Huntley commentary re: Wholesome Meat Act of 1967 failed to disclose his ranching interests); KTYM (Anti-Defamation League), 4 F.C.C.2d 190 (1966), aff’d 403 F.2d 169 (D.C.Cir. 1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969) (broadcast of allegedly anti-Semitic remarks); Bernard Hanft, 14 F.C.C.2d 364 (1968) (failure to cover department store picketing); Columbia Broadcasting System (WBBM-TV), 18 F.C. C.2d 124 (1969) (allegation that “pot party” documentary was staged by broadcaster); Columbia Broadcasting System (Poor People’s Campaign), 17 P & F Rad. Reg. 2d 843 (1969) (coverage of Poor People’s Campaign allegedly slanted and staged); Radio Station WSNT, Inc. 27 F.C.C.2d 993 (1971) (failure to cover Black organization’s activities); Time-Life Broadcast, Inc. (KOGO-TV), 33 F.C.C.2d 1050 (1972) (allegations of “Anglo bias” in the news); Hunger in America, 20 F.C.C.2d 143 (1969) (documentary allegedly misleading and staged); Lincoln County Broadcasters, Inc., 51 F.C.C.2d 65 (1975) (broadcast critical of zoning decision for political reasons).

36 . Indeed in Alabama Educational Television Commission, 50 F.C.C.2d 461 (1975) the FCC denied AETC’s license renewal application because of its finding that AETC’s programming discriminated against Blacks.