Notes "Objectivity and Balance" in Public Broadcasting: Unwise, Unworkable, and Unconstitutional Steven D. Zansbergt This debate will not be about censorship. I, for one, do not want to control television programming, but we should make certain the American taxpayers are getting what they are paying for, and not getting what their tax dollars should not be paying for. -Sen. Robert Dole (R-Kansas)I If we start coming into this chamber and seeking to review the editorial decisions made by those who decide what programming goes on, then it will not be long before we are seeing the rightwing insist that Mr. Rogers change his lesson plan to include a rightwing political agenda in "Mister Rogers' Neighborhood," or that "Sesame Street" come up with different characters because they did not meet the political or ideological litmus test. 2 -(then) Sen. Albert Gore (D-Tenn.) In the Spring of 1992, Congress debated whether to reauthorize funds for the Corporation for Public Broadcasting (the CPB).3 Congress had created the CPB, a private, nonprofit corporation, in 1967, as the mechanism to disburse federal funds to public broadcasting stations and program producers, and as a buffer or "heat shield" between Congress and the public broadcasters. In 1992, conservatives extended the "culture war" they had earlier declared against public funding for the arts,' and launched a full frontal assault upon public broadcasting, 5 seeking to withdraw all federal support for the CPB.6 Opponents of public broadcasting leveled four charges against the institution: t A shorter version of this Note received first prize in the 1994 Stephen G. Thompson Memorial Writing Competition in Communications Law at the Columbus School of Law at Catholic University of America. The author is grateful to Professor Owen M. Fiss for his thoughtful comments and suggestions for improving this Note. 1. 138 CONG. REC. S2645 (daily ed. Mar. 3, 1992). 2. Id. at S2649. 3. 138 CONG. REc. S7425-64 (daily ed. June 3, 1992) (discussing the Public Telecommunications Act of 1991, H.R. 2977); 138 CONG. REc. S7304-47 (daily ed. June 2, 1992). 4. For a discussion of the rightwing "culture war," see John O'Connor, For the Right, TV is Half the Battle, N.Y. TIMES, June 14, 1992, at B2; Dennis Wharton, Right WingerZinger in Senate, VARIETY, Mar. 9, 1992, at 32. 5. See Nightline: Conservatives Trying to Kill OffPublic Broadcasting (ABC television broadcast, May 12, 1992) (transcript available in LEXIS, Nexis Library, Script File) (debate between Bill Moyers and George Will over the continuing need for government funding for public television); Walter Goodman, In the Debate Over PBS, The Subject is Objectivity, N.Y. TIMES, June 3, 1992, at C20; Laurie Ouelette, The Right Wing Targets Pubic TV: Jesse Helms vs. 'Bill Moyers, UTNE READER, May-June 1992, at 45; Richard Zoglin, Public TV Under Assault, TIME, Mar. 30, 1992, at 58. 6. 138 CONG. REC. H288 (daily ed. Feb. 4, 1992) (Rep. Armey joining as cosponsor of H.R. 3616); 137 CONG. REC. H8334 (daily ed. Oct. 23, 1991) (Rep. Crane offering H.R. 3616, a bill to repeal the statutory authority for the CPB). "Objectivity and Balance" in Public Broadcasting (1) that public television had been rendered obsolete by the explosion of cable channels offering programming traditionally found on PBS; (2) that in an age of budgetary constraint, it was indefensible to expend federal funds on a system that served mostly elitist preferences; (3) that programming on public broadcasting stations was frequently "indecent," and such programming should not be paid for with tax revenues; and (4) that public affairs programming on public broadcasting stations evinced a consistently liberal bias.7 By far the most sustained criticism of public broadcasting focused on the alleged liberal bias of news and information programming. During the floor debates, several congressmen ridiculed specific programming choices of public television officials8 and accused public broadcasting of promoting a "left-wing ideolo- gy."' Typical of this sentiment was the opinion expressed by Senate Minority Leader Robert Dole (R-Kansas), that public television presented a "steady stream of documentary cheerleading for leftwing interests."10 Ultimately, in August 1992, Congress voted to reauthorize funding for the CPB for three years." However, the harsh criticism from conservative mem- bers of Congress12 cast a pall over the proceedings, and resulted in an amend- ment to the reauthorization legislation that requires the CPB to monitor and ensure that national programming on public broadcasting stations is "balanced" 7. See Charles. S. Clark, Public Broadcasting: Will PoliticalAttacks and New Technologies Force Big Changes?, 2 CQ RESEARCHER 809, 811 (Sept. 18, 1992) ("public broadcasting was variously labeled ,an upper-middle-class entitlement program,' 'a government frill we can no longer afford,' and a liberal mouthpiece for promoters of homosexuality."). 8. See, e.g., 138 CONG. REC. 52650 (daily ed. Mar. 3, 1992) (statementof Sen. McCain) (criticizing three PBS programs, Tongues Untied, Maria's Story, and After the Warming as "liberal, leftwing pro- grams"); id. at S7430 (daily ed. June 3, 1992) (statement of Sen. Dole) (calling Jisteningto America with Bill Moyers unbalanced propaganda). 9. 138 CONG. REC. S7430-41 (daily ed. June 3, 1992) (statement of Sen. Dole); see also 138 CONG. REC. 52645 (daily ed. Mar. 3, 1992) (statement of Sen. Dole) (attacking "unrelenting liberal cheerlead- ing"); id. at 52650 (statementof Sen. McCain) ("ITIhe viewer is predominantly exposed to liberal, leftwing viewpoints without the benefit of alternative points of view."). Senator Dole also referred to a report produced by the Center for Media and Public Affairs which had reviewed 225 PBS documentaries, finding that the documentaries "lack ideological balance, and [that the] balance of opinion... consistently favored liberal positions." Id. at S7430. See generally S. ROBERT LICHTER ET AL., CENTER FOR MEDIA AND PUBLIC AFFAIRS, BALANCE AND DIVERsrrY OF PBS DOCUMEN- TARIES (1992). 10. 138 CONG. REC. S7434 (daily ed. June 3, 1992); see also id. at S7433 (statement of Sen. Dole) ("Let us look at what the American people are watching ....They are watching a one-sided, leftist, tilted program."). But see id. at S7444 (statement of Sen. Hatch) (arguing that controversial programs on public broadcasting are the exception, not the rule, and funding should not be denied on that basis). 11. Congress has authorized for the CPB $310 million in fiscal year 1994, $375 million in fiscal year 1995, and $425 million in fiscal year 1996. Public Telecommunications Act of 1992, Pub. L. No. 102-356, § 8, 106 Stat. 951. 12. Conservative criticism of public broadcasting was not limited to the congressional forum. For example, at the Republican National Convention in Houston in August 1992, delegates approved a platform with language deploring "the blatant political bias of the government-sponsored radio and television networks," and looking "forward to the day when public broadcasting is self-sufficient." Clark, supra note 7, at 826. Yale Law & Policy Review Vol. 12:184, 1994 and "objective."13 Under the amendment, the CPB is required to report annually to Congress on its policy and procedures for evaluating and promoting objectivity and balance.14 Not surprisingly, the acrimonious legislative battle and resulting "objectivi- ty and balance" amendment produced a dramatic chilling effect. The CPB has already signaled its intention to avoid further political battles by curtailing the coverage of controversial programming on public broadcasting stations. In May 1993, the CPB sent letters to public radio broadcasters urging them to publicize a new national toll free telephone comment line, because "[n]egative comments might vindicate a station's decision not to carry controversial program- ming."" 5 Furthermore, critics of public broadcasting have pointed to the Public Broadcasting Service's (PBS) refusal to air a number of documentaries critical of corporate America as a logical and foreseeable response to the 1992 congressional wrangling.' 6 13. Pub. L. 102-356, § 19, 106 Stat. 949, 955-56 (1992). The stated purpose of the amendment was "to promote programming objectivity and balance." 138 CONG. REC. S7341 (daily ed. June 2, 1992) (statement of Sen. Inouye) (introducing amendment for floor debate). The text of the amendment reads in pertinent part: Pursuant to the existing responsibility of the Corporation for Public Broadcasting under section 396(g)(1)(A) of the Communications Act of 1934 (47 U.S.C. 396(g)(1)(A)) "to facilitate the full development of public telecommunications in which programs of high quality, diversity, creativity, excellence, and innovation, which are obtained from diverse sources, will be made available to public telecommunications entities, with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature," the Board of Directors of the Corporation shall: (1) review the Corporation's existing efforts to meet its responsibility under section 396(g)(1)(A); (2) after soliciting the views of the public, establish a comprehensive policy and set of procedures to- (A) provide reasonable opportunity for the members of the public to present comments to the Board regarding quality, diversity, creativity, excellence, innovation, objectivity and balance of public broadcasting services, including public broadcasting of a controversial nature, as well as any needs not met by