Public broadcaster not required to accept Klan sponsorship

From the Spring 2000 issue of The News Media & The Law, page 15.

Underwriting announcements aired on public broadcast stations are part of the broadcaster’s speech and within its editorial discretion, and are not independent speech that creates a “public forum” for those underwriters, according to the U.S. Court of Appeals in St. Louis (8th Cir.).

The decision upheld a lower court’s dismissal of a claim by a state chapter of the Ku Klux Klan, which had argued that a public station could not deny it the right to underwrite programming and air its message.

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The University of Missouri St. Louis public radio station, KWMU-FM, operates an “enhanced underwriting” program to attract donors for its programming. Federal law requires public stations to acknowledge underwriters on air, but under the enhanced program, underwriters are allowed to air longer announcements, usually 15 seconds in length, that are drafted by the underwriter and read by KWMU staff on the air.

Michael Cuffley, the state coordinator for the Missouri Ku Klux Klan, wrote a letter to the station saying that the Klan would like to sponsor four segments of “All Things Considered.” Cuffley asked that the following message be read as an acknowledgment: “The Knights of the Klu Klux Klan, a white Christian organization, standing up for the rights and values of white Christian America since 1865. For more information, please contact the Klu Klux Klan . . . Let your voice be heard!”

Upon receiving the letter, Patricia Bennett, general manager of KWMU and its underwriting program, requested a decision from the school’s chancellor on whether to accept the Klan’s involvement as an underwriter. Officials ultimately rejected the Klan’s donation in fear the university would lose millions of dollars in gifts and student tuition in protest of the broadcast of the Klan’s message.

Arguing that the rejection was based on the content of the group’s speech, the Klan alleged a violation of First Amendment rights and filed a lawsuit in federal court in 1997.

The federal trial court held that “KWMU’s enhanced underwriting program was not a forum for speech and therefore did not implicate the First Amendment.” The court recognized KWMU’s fear of losing revenue from major African-American donors and found that the refusal of the Klan’s message did not unconstitutionally suppress the group’s viewpoint. The Klan appealed.

A unanimous panel of the U.S. Court of Appeals in St. Louis (8th Cir.) affirmed the lower court’s decision on Feb. 17, 2000.

It rejected the Klan’s arguments that because the underwriter messages are clearly the speech of the underwriters and are part of a commercial transaction, they are not “governmental speech” of the public stations and thus are part of a public forum. The court found that the messages are governed by the station’s editorial discretion.

“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,” the court held.

The court found that a public broadcaster’s operations are not part of a public forum, which would have to accept all speakers. The “public forum” analysis is more appropriate to public property, the court noted. “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 inexplicable in the context of public broadcasting where substantial discretion is accorded to broadcasters with respect to the daily operation of their stations,” the court held.

The court added that “public broadcasters enjoy the journalistic freedom consistent with their statutory obligations to broadcast material serving the ‘public interest, convenience and necessity.'” (Knights of the Ku Klux Klan v. Curators of the University of Missouri)