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Law expert says state can't limit public TV
                AG: This is not a free-speech issue
The Associated Press
7/18/00
                Idaho is the only state trying to regulate public television programming.Idaho Public Television's airing of a controversial documentary about issues relating to homosexuality prompted lawmakers to enact programming restrictions earlier this year. And a recent Idaho attorney general's legal analysis of the move concludes the question of free
speech is not involved.

                "Public television is the government speaking," Deputy Attorney
General Kevin Satterlee said. "The legal authority of the Legislature to
do that clearly exists." But not everyone agrees. "If state legislatures across the country could program their public television stations, they would probably be doing it, and doing it in droves," said Robert D. Richards, a law professor at Pennsylvania State University and a First Amendment expert.

                "This is really the first such case I've heard of, of the Legislature trying to step in and really dictate what can be on the air and what cannot be on the air," Richards said.  The Idaho Legislature's budget-setting Joint Finance-Appropriations Committee tied strings to the public television budget this year. They ban the showing of any program that encourages violation of state criminal laws and require the Board of Education to monitor programming that might be controversial.  Education Board members were ordered by the Legislature earlier this year to step up their oversight of Idaho Public Television after a program about children and homosexuality aired last fall, angering many Idahoans who thought it promoted a gay lifestyle. Sodomy is a crime in Idaho.

                Failure to comply with the Legislature's directive would technically make the Board of Education guilty of misappropriation of public funds, Satterlee said.  Although only 28 percent of IPTV's $5.6 million budget comes from the state, the restrictions apply to the network's spending as a whole because the Legislature has to approve all spending by state agencies.  Most of the network's money comes from private donors. About a sixth comes from the federal government.  A coalition of media groups warned lawmakers in a letter last spring that limiting programming would violate the First Amendment to the U.S. Constitution, a contention Satterlee dismisses.  Attorney Debora Kristensen, who co-authored the media letter, remains convinced the law raises legal problems.

                "So far, I haven't seen any cases where the government itself has
been able to come in and dictate the type of programming that public
broadcast stations can run," she said. "It would just defeat the purpose
of public broadcasting in the United States."  Satterlee acknowledged that free-speech guarantees come into play when the government provides public forums, like permits for parades. "But when the government itself is speaking, those rules don't apply," he said.  If they did, he said, the government could not post a billboard advocating seat-belt use or publish a public health brochure without giving equal time to dissenters.  Richards said, however, that all the case law on that issue involves members of the audience seeking access to the airwaves, not legislatures governing programming.  "What the proponents of the Idaho legislation are trying to do is control the broadcast of controversial political issues," he said, "which would be unprecedented abuse of legislative power."

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              JFAC testimony and Q&A by the committee
                 Funding for Idaho Public Television