FCC, educational broadcasting licenses, and NEA v. Finley

[Steve Shiffrin]

If government can reserve some channels for educational purposes (which
I think should be clear, unless public schools are unconstitutional),
government should be able to reserve portions of otherwise "commercial"
channels for educational purposes or for children's programming.
(Licencees by the way sign a form indicating that they have no property
interest in the frequency). The problem is assuring that government not
dominate the marketplace (which, given cable expansion,even leaving the
internet aside) is less of a problem than it was 20 years ago when Yudof
and I independently wrote about government speech). If I had been
following this thread, I would know what this has to do with religion
and try to relate it, but I confess I have not.
Steve

> "Volokh, Eugene" wrote:
>
>         Rather than continuing to try to draw lines between "coercive"
> and "noncoercive" speech, and "indoctrination" and "education," I'd
> like to step back a bit and ask a few questions about the educational
> broadcasting license program generally.
>
>         The government must necessarily decide what's education and
> what's not -- if only to decide which courses to offer at, say, UCLA.
> I assume that if I proposed to teach a class at the law school called
> "Volokh Trying To Persuade You to Support The Laws He Likes," the
> class would quite properly be rejected as not "educational."  However
> hard it might be to draw the line between what's of sufficient
> educational value and what isn't, we let the law school do it.
>
>         Likewise, even given the weird test ("invidious" viewpoint
> discrimination is bad, but other kinds of discrimination, perhaps
> including viewpoint discrimination, are OK) that the NEA v. Finley
> majority uses, NEA panels and other arts funding departments must
> necessarily decide what's "good art" and what isn't -- surely a
> distinction as amorphous as what's "good education" and what isn't.
> Likewise, science grants organizations must decide what's "good
> science" and what's "bad science" or even "not science at all."
>
>         So the question, I think, must be whether educational
> broadcasting licenses are the sort of government program in which the
> government can make vague, subjective, in practice often subtly
> viewpoint-based judgments about what's "high quality," "good art,"
> "educational," and the like, or whether they are the sort of
> government program (a la the post office, the program in Rosenberger,
> and the like) in which the government is subject to much more
> demanding tests of specificity, viewpoint-neutrality, and perhaps even
> content-neutrality.
>
>         My suspicion is that broadcasting licenses generally must be
> something like the post office et al. -- even if the government has
> some extra power flowing from the fact that it's giving licenses to
> broadcast on "public airwaves," even if it can implement the Fairness
> Doctrine and the like, I'd be very troubled if the FCC really *did*
> start enforcing a vague, subjective, and often subtly viewpoint-based
> judgments about what's "in the public interest" and what isn't.  I'm
> even troubled by the children's educational programming requirements
> on television, though I suspect that one reason why there hasn't been
> more fuss about them is that (and here I may be mistaken) the
> television stations have been given great latitude to decide what's
> "educational" and what isn't.  (Another reason might be that
> television stations, as holders of FCC licenses, might be very
> reluctant to get into a big fight with the FCC.)
>
>         But may the government despite this reserve some channels and
> say:  "These are our channels that we'll then allocate to those
> programs that we think are educational, just as we have huge pots of
> money that we allocate to those university classes that we think are
> educational, or smaller pots of money that we allocate to art that we
> think is worthy.  We will try to avoid 'invidious viewpoint
> discrimination' here, and we won't make our decisions based on whether
> the proposed programs are religious as such.  But if the proposed
> programs, where religious or not, seem more like 'indoctrination' than
> like 'education' in our own subjective judgment -- and we realize how
> vague these terms are -- then we'll just say no; go get a commercial
> license, if it's available, or go buy time on a commercial licensee's
> station or a cable channel."
>
>         I'm genuinely not sure what the answer should be, and I wonder
> what others think.

--
Steve Shiffrin
Cornell Law School
shs6 at cornell.edu