Capital Broadcasting Co. v. Mitchell

Capital Broadcasting Co. v. Mitchell

Opinion

 [*583]  MEMORANDUM OPINION

GASCH, District Judge.

Petitioners, six corporations which operate radio stations under licenses granted by the Federal Communications Commission, seek to enjoin enforcement of Section 6 of the Public Health Cigarette Smoking Act of 1969 and to have Section 6 declared violative of the First and Fifth Amendments to the Constitution. The National Association of Broadcasters has been permitted to intervene.

The Court requested Professor John F. Banzhaf, III to file a brief amicus curiae. Plaintiff and intervenor have filed replies to the amicus brief. The Court wishes to take this opportunity of expressing its appreciation of Professor Banzhaf's analysis of the issues and his contribution to their resolution.

This three-judge court was convened pursuant to petitioners' application under 28 U.S.C. §§ 2282 and 2284. We conclude that the Act in question does not conflict with the First or Fifth Amendment.

In 1965, in an attempt to alert the general public to the documented dangers of cigarette smoking, Congress enacted [**2]  legislation requiring a health warning to be placed on all cigarette packages. ¹ By 1969 it was evident that more stringent controls would be required ² and that both the FCC ³ and the  [*584]  FTC ⁴ were considering independent action. Under such circumstances Congress enacted ] the Public Health Cigarette Smoking Act of 1969, ⁵ (hereafter referred to as the Act) which, as pertinent hereto, provides:

"Sec. 6. After January 1, 1971, it shall be unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission."

 [**3]  Petitioners allege that the ban on advertising imposed by Section 6 prohibits the "dissemination of information with respect to a lawfully sold product * * *" ⁶ in violation of the First Amendment. It is established that ] product advertising is less vigorously protected than other forms of speech.  Breard v. City of Alexandria, 341 U.S. 622, 642, 71 S. Ct. 920, 95 L. Ed. 1233 (1951); Murdock v. Com. of Pennsylvania, 319 U.S. 105, 110-111, 63 S. Ct. 870, 87 L. Ed. 1292 (1943); Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S. Ct. 920, 86 L. Ed. 1262 (1942); Banzhaf v. Federal Communications Commission, 132 U.S. App. D.C. 14, 405 F.2d 1082, 1101 (1968) cert. denied, 396 U.S. 842, 90 S. Ct. 50, 24 L. Ed. 2d 93 (1969). The unique characteristics of electronic communication make it especially subject to regulation in the public interest.  National Broadcasting Co. v. United States, 319 U.S. 190, 226-227, 63 S. Ct. 997, 87 L. Ed. 1344 (1943); Office of Communication of United Church of Christ v. Federal Communications Commission, 123 U.S. App. D.C. 328, 359 F.2d 994, 1003 (1966). Whether the Act is viewed as an exercise of the Congress' supervisory role over the federal regulatory agencies [**4]  or as an exercise of its power to regulate interstate commerce, Congress has the power to prohibit the advertising of cigarettes in any media. The validity of other, similar advertising regulations concerning the federal regulatory agencies has been repeatedly upheld whether the agency be the FCC, ⁷ the FTC, ⁸ or the SEC. ⁹ Petitioners do not dispute the existence of such regulatory power, but urge that its exercise in context of the Act is unconstitutional.  In that regard it is dispositive that the Act has no substantial effect on the exercise of petitioners' First Amendment rights. Even assuming that loss of revenue from cigarette advertisements affects petitioners with sufficient First Amendment interest, petitioners, themselves, have lost no right to speak -- they have only lost an ability to collect revenue from others for broadcasting their commercial messages. See, Business Executives' Move For Vietnam Peace v. F.C.C., 146 U.S. App. D.C. 181, 450 F.2d 642 at 654 (D.C. Cir. 1971). ] Finding nothing in the Act or its legislative history which precludes a broadcast licensee from airing its own point of view on any aspect of the cigarette smoking question, it is clear that petitioners'  [**5]  speech is not at issue. Thus, contrary to the assertions made by petitioners, Section 6 does not prohibit them from disseminating information about cigarettes, and, therefore, does not conflict with the exercise of their First Amendment rights.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.