AMY GOODMAN: We talk now about the nomination for Supreme Court justice of Samuel Alito.

CHIEF JUSTICE WARREN BERGER: We’ll hear arguments next in Federal Communications Commission against The League of Women Voters. Mr. Alito, I think you may proceed when you’re ready.

AMY GOODMAN: Those were the words of Chief Justice Warren Berger in January 1984, as he opened a Supreme Court case that pitted, yes, Samuel Alito against Pacifica Radio.

JUAN GONZALEZ: At the time, Alito was working as an assistant to Solicitor General Rex Lee in the Reagan Justice Department. The case centered on the constitutionality of a law that prohibited the airing of editorials by any public radio and TV outlet that received funding from the Corporation for Public Broadcasting. The law was challenged by Pacifica, as well as the League of Women Voters of California and Democratic Congressman Henry Waxman. The case was known as The F.C.C. v. The League of Women Voters.

Samuel Alito argued before the court in favor of the ban on editorials in what the Los Angeles Times described at the time as “one of the most important First Amendment cases of the current Supreme Court term.” In a minute, we will hear a part of Alito’s argument. But first, we’ll take a listen to attorney Frederic Woocher arguing against the law.

FREDERIC WOOCHER: Mr. Chief Justice, and may it please the court, at issue in this case is a statute that very straight forwardly and unabashedly suppresses speech of the highest order in our constitutional framework. If this statute were directed at the Washington Post, or presumably even at CBS TV, instead of the Pacifica Foundation, there would be no doubt of its unconstitutionality. Indeed, in Mills v. Alabama, this court said, with respect to a similar ban on editorials, that it was difficult to conceive of a more obvious and flagrant violation of the First Amendment. Yet here, the government is saying that the same ban on editorializing can constitutionally be applied against Pacifica and other noncommercial broadcasting.

AMY GOODMAN: That was attorney Frederic Woocher arguing before the Supreme Court in 1984 in the case, F.C.C. v. League of Women Voters. At the time, Frederic Woocher was working for the Center for Law in the Public Interest. Earlier in proceedings, then Assistant Solicitor General Samuel Alito argued in favor of the ban on editorializing by public radio and TV stations that receive government funding. This is an excerpt of Alito’s argument before the Supreme Court. We begin with Justice John Paul Stevens questioning Alito.

JUSTICE JOHN PAUL STEVENS: I think your basic argument would really apply not merely to Public Television, but to all licensed television, wouldn’t it?

SAMUEL ALITO: No, not at all, Justice Stevens. Nothing in our submission has any implications for commercial broadcasting. The heart of our argument is that Public Broadcasting is very different in many ways from commercial broadcasting. It was created for a different purpose, and it is dominated by government entanglements that have no parallel whatsoever in the world of Public Broadcasting —- of commercial broadcasting, and it is that which supports the constitutionality -—

JUSTICE JOHN PAUL STEVENS: Well, there is this parallel, that in both areas, the government has the power to say you cannot continue to broadcast, because even in the private sector they have the licensing power.

SAMUEL ALITO: Well, that’s certainly true. And the government has considerable power over all broadcasting that it doesn’t possess with respect to the print media. I think this court’s cases have recognized that the government’s power, with respect to all broadcasting, permits restrictions on the right to editorialize. The right to editorialize is also the right not to editorialize, as the court said in Miami Herald Company v. Tourneau, but commercial broadcasters are encouraged to editorialize, and they have to give up time for reply, under certain circumstances, when they make an attack on an individual or a group or they support or oppose a candidate. That is a restriction on editorializing that would not be tolerated in the print media. The question here is whether the further restriction on editorializing that Section 399 puts into effect is justified by the special characteristics of Public Broadcasting.

AMY GOODMAN: That was then Assistant Solicitor General Samuel Alito arguing before the Supreme Court on January 16, 1984. Alito was defending a law prohibiting the broadcast of editorials by public radio and TV broadcasters that receive federal funding. Six months later, the Supreme Court declared the editorial ban unconstitutional, because it violated the First Amendment free speech guarantees. A series of outside groups also weighed in on the issue. The National Association of Broadcasters, CBS and the American Civil Liberties Union all backed Pacifica, while the oil giant Mobil defended the ban on editorials.

JUAN GONZALEZ: In the majority opinion, Justice William Brennan wrote that the ban strikes “at the heart” of the First Amendment, because it “directly prohibits the broadcaster from speaking out on public issues, even in a balanced and fair manner.” Brennan was joined in the majority by Thurgood Marshall, Henry Blackmun, Lewis Powell and Sandra Day O’Connor. To discuss this, we’re now joined by Frederic Woocher, the attorney who successfully argued the case against Samuel Alito. He joins us on the phone from Santa Monica, California, where he’s an attorney in private practice. Welcome to Democracy Now!

FREDERIC WOOCHER: Thank you.

JUAN GONZALEZ: Could you talk to us a little bit about how Samuel Alito got involved in the case?

FREDERIC WOOCHER: Yes. It is a little interesting, because he was not the attorney who was originally assigned to the case at the Solicitor General’s office. That office handled the appeal. After the district court had struck the statute down as unconstitutional, it went directly to the Supreme Court, and a more senior official in that office, a former Harvard Law professor, had actually been handling the case and wrote the brief in the case and was shepherding the case through to oral argument. But the weekend before oral argument, he had a death in his family, I believe, and he was called away, back to Massachusetts. And I received word on Friday that the following Monday, when the argument was scheduled, this new gentleman, Samuel Alito, would be actually handling the argument.

AMY GOODMAN: And so, you made the argument. You won the case. Talk about the core, the heart of this issue.

FREDERIC WOOCHER: Well, it’s interesting. There were two issues, two grounds on which the government attempted to defend the statute. The first was that, simply as a matter of First Amendment law, as you heard from the clip, because there was a concern that the unique nature of Public Broadcasting stations and their entanglement with the government and their dependence in many respects on government support, there was a fear that they could become propaganda organs for the federal government. And as a result of that fear, it was appropriate for them to prohibit the stations from editorializing.

That argument had two flaws in it. One was it was really not supported by the legislative history, which suggested that, in fact, this had been inserted into the law by several Congress people who feared that the station could editorialize against them and the actions they took in Congress. And the second problem was, frankly, that one of the plaintiffs in the case was Pacifica Foundation, and it just didn’t really pass the straight-face test that an organization like that would realistically present the fear of becoming a government propaganda organ.

So, actually, about six months before the case was heard in the Supreme Court, the statute was amended to tie the restriction on editorializing to the actual receipt of federal funds, because prior to that, it actually applied to stations, whether or not they had received any government funds. And in that context, the government then said, 'Well, you know what? This is our money that we're spending, and if we believe that we want to put restrictions on the way that money is used, we’re perfectly entitled to do that, and the First Amendment really doesn’t come into play, because this is just a question of the government’s spending power.’

And the flaw with that argument was, as the court ultimately ruled, that the restriction was — while it did apply to any station that received government funding, it applied to the use of any of their funds, so that even if a station, like Pacifica was prepared to do, was willing to say, 'We will use only our private funds to editorialize,' the law still restricted them from engaging in that activity. And, as you heard, the court ruled in, I believe it was, a six-to-three vote that that was unconstitutional, in violation of the First Amendment.

AMY GOODMAN: Frederic Woocher, I want to thank you for being with us. In the interest of disclosure, of course, Democracy Now! started at Pacifica and airs on Pacifica Radio stations around the country. Frederic Woocher argued the case before the Supreme Court, and, by the way, happy birthday to you.