The U.S. Court of Appeals here yesterday said a federal statute requiring public broadcasting stations to keep tapes of their programs for 60 days is unconstitutional because it does not apply as well to commercial stations.
The statute smacks of an attempt at government censorship and must be set aside, the appellate court said in a 2-to-1 ruling.
According to the majority opinion written by U.S. Cricuit Judge J. Skelly Wright, the requirement was added to the Communications Act after U.S. Sen. Robert Griffin (R-Mich.) said at a hearing he had been unable to get a tape of a PBS show on an antimissile system that he had heard was a "biased" program.
If the stations were required to keep the tapes, past programs could be reviewed easily by members of the public - or members of Congress like himself, Griffin explained.
The section "was intended and expected to serve as a means for unprecedented government review - in effect, government censorship - of the specific contents of programs broadcast by noncommercial stations," Wright said in a majority opinion for himself and U.S. District Judge Gerhard A. Gesell.
The majority judges said that even though there had been no evidence that the taping requirement had been used for the purpose of censorship, its mere existence nevertheless could have a "chilling effect" on the public networks.
". . . The fact remains that a statute whose purpose is to limit First Amendment freedoms is not saved by any lack of success it has achieved in doing so," Wright added.
The Federal Communications Commission, which implemented regulations enforcing the statute, claimed that its only intent was to give taxpayers a means for reviewing the performance of stations supported by tax money.
Judge Wright rejected that argument, saying that the public also supports commercial stations as well and the government has control over commercial stations also.
"If recording and access requirements are to be imposed on this basis, they must be applied to all stations," Wright said.The explanation provided by the FCC did not show any "legitimate government interest" in enforcing the statute, according to Wright.