Interesting Press Freedom Issue Concerning the 2000 Presidential Election

[Ken Katkin]

Mark Graber wrote:

> No doubt I am demonstrating my ignorance.  Has Congress the power to declare that no election return shall be made public until all voting is finished?  If so, abuses in the way networks present this information would be a relevant legislative investigation.

I will take a shot at responding to Prof. Graber’s excellent (and far from simple) question.

Under Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), Congress (or even the FCC acting unilaterally) clearly would have the power to condition the receipt or retention of a broadcast license on the licensee’s compliance with a rule prohibiting the
broadcasting of election returns until all voting is finished.  Congress does not, however, have the same kind of direct authority over non-broadcast cable channels (such as CNN), or Internet Web Sites, neither of which need obtain an FCC license in order to
operate.  See United States v. Playboy  Entertainment Group, 529 U.S. 803 (2000) (cable channels); Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (Internet Web Site).  On the other hand, many of the major cable news networks (e.g., Fox News Network,
MSNBC) are owned by media conglomerates that also own broadcast stations.  The FCC likely could revoke the affiliated broadcast license for conduct by the licensee deemed contrary to the public interest, even if that bad conduct did not in any way involve the
broadcast station.  See, e.g., Contemporary Media, Inc., 13 FCC Rcd. 14437 (1998) (revoking seven radio station licenses “because of violations of law relating to repeated sexual abuse of children by the stations’ sole owner and misrepresentations [to the FCC
about these incidents] by the Licensees”).  So I think that Congress and the FCC could effectively apply the rule you suggest to the major cable networks as well as broadcast stations, by threatening to revoke, say, Fox’s broadcast license if Fox violated your
proposed rule, either on the broadcast stations or on the cable network.  (The Internet is a different story; Matt Drudge would be hard for the FCC’s jurisdiction to reach).

If Congress sought to enact criminal sanctions for publicly disclosing election returns before all voting is finished, then such a law would likely constitute a content-based restriction on speech that would be subject to strict scrutiny.  But at least one
analogous attempt to maintain the integrity of the electoral process by imposing a content-based but time-limited prohibition on election-day speech has already survived such strict scrutiny.  See Burson v. Freeman, 504 U.S. 191 (1992) (applying strict scrutiny,
but upholding state ban on distribution of campaign literature within 100 feet of a polling place, even though other, non-political literature could be distributed in that area).  So who knows?

Finally, I would add that I do not entirely share the view previously expressed on this list that Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 506 (1975) actually requires that a Congressional subpoena must “concern[] a subject on which legislation could be
had” in order to be upheld.  The Eastland court upheld every Congressional subpoena before it, and I am not aware of any other case in which a Congressional subpoena was quashed (though I haven’t looked very hard).  Moreover, in addition to the dicta quoted
above, the Eastland court also offered the following remarks (which I apologize for quoting at length):

     Where the legislative body does not itself possess the requisite information--which not infrequently is true--recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also
     that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.  It also has been held that the subpoena power may be exercised by a committee acting, as here, on behalf of
     one of the Houses.

     Without such power the Subcommittee may not be able to do the task assigned to it by Congress. To conclude that the power of inquiry is other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause in
     derogation of the 'integrity of the legislative process.'   We have already held that the act 'of authorizing an investigation pursuant to which materials were gathered' is an integral part of the legislative process.  The issuance of a subpoena
     pursuant to an authorized investigation is similarly an indispensable ingredient of lawmaking; without it our recognition that the act 'of authorizing' is protected would be meaningless. To hold that Members of Congress are protected for authorizing an
     investigation, but not for issuing a subpoena in exercise of that authorization, would be a contradiction denigrating the power granted to Congress in Art. I and would indirectly impair the deliberations of Congress.

      . . .
     [Accordingly,] [t]he propriety of [a Congressional] subpoena is a subject on which the scope of our inquiry is narrow.  The courts should not go beyond the narrow confines of determining that a committee's inquiry may fairly be deemed within its
     province.

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 506 (1975).

--Ken Katkin





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