Ku Klux Klan v Curators of the University of Missouri

Before McMILLIAN, MURPHY, and TUNHEIM, n1 Circuit Judges.

n1 The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation.

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 Court 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 KWMU (together "appellees"). 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.

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.

To help fund the station, KWMU operates an "enhanced underwriting" program within its sales division. Pursuant to federal law, the station 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." Although federal law forbids noncommercial educational FM broadcasters like KWMU from broadcasting "advertisements," 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. Typically, the announcement is a fifteen-second message, drafted by the underwriter or KWMU staff. All scripts are reviewed and edited by station management to ensure compliance with federal law and regulations as well as KWMU underwriting guidelines, because UMSL (as the licensee of KWMU) is ultimately liable for all transmissions.

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. (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, products or service listings 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.

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. Bennett accepts donor funds from, and approves accompanying messages of, approximately thirty underwriters per week. As a matter of course, Bennett does not examine the philosophy or policies of each potential donor. Nonetheless, prior to the institution of this action, Bennett has rejected financial support from several potential underwriters.

Some time prior to September 24, 1997, Michael Cuffley contacted KWMU by telephone and requested information on underwriting several fifteen-second spots for NPR's "All Things Considered" program. Cuffley testified that he enjoyed the program, wanted to support KWMU, and hoped to attract more highly educated people to his organization. Cuffley did not initially identify himself or his organization. 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. 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." 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!

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. 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. No one had previously consulted Touhill regarding the acceptance or rejection of underwriting funds.

Touhill ultimately rejected the Missouri KKK's proposed underwriting gift. 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. Touhill anticipated that an acknowledgment of 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.

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. 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. 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. 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.

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. 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.

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 not implicate the First Amendment...This appeal followed.

Discussion

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. . 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. 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. 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. 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. 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. 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." 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 (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. Because "enhanced 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.

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," 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." 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 "having 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." 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. Instead of being compelled to open their facilities "on a nonselective basis to all persons wishing to talk about public issues," public broadcasters enjoy the "widest journalistic freedom" consistent with their statutory obligations to broadcast material serving the "public interest, convenience, and necessity." Because broad application of the forum doctrine in this context would require "overseeing 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," "public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine." 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. 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. 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. 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. 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. As appellees point out, "it would be anomalous to impose these penalties on a station for any speech other than its own."

Even assuming arguendo that insulation from forum analysis only arises for government speech adequately related to matters of editorial or journalistic discretion, 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. In the instant case, UMSL did not wish to "publish" a financial association with the Missouri KKK. Because "accepting" underwriting funds from the 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. To require UMSL to accept program sponsorship from all sources would surely intrude upon the editorial discretion which Congress delegated.

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. Finally, the sponsorship identifications (and the donations 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. 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 "allowed the candidates to express their views with minimal intrusion by the broadcaster." 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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