Chief Judge, J. SKELLY WRIGHT, filed the opinion of the court (Parts I and IV), in which Circuit Judges, BAZELON, McGOWAN, ROBINSON, and WILKEY, joined. Circuit Judge, WILKEY, also joined in Parts II, III and V. Circuit Judges BAZELON and SPOTTSWOOD W. ROBINSON, III, filed opinions concurring in part.

Circuit Judge, LEVENTHAL, joined by Circuit Judge, TAMM, filed a dissenting opinion.

Circuit Judge, MacKINNON, joined by Circuit Judge, ROBB, filed a dissenting opinion.

This case involves Section 399(b) of the Communications Act, 47 U.S.C. § 399(b) (Supp. V 1975), and the rules promulgated thereunder by the Federal Communications Commission, Report and Order, Docket 19861, 57 FCC2d 19 (December 19, 1975). These provisions require all noncommercial educational radio and television stations1 which receive any federal funding under the authority of the Communications Act to make audio recordings of all broadcasts "in which any issue of public importance is discussed."2 The licensee must retain the audio recording for 60 days, and must provide a copy to any member of the Federal Communications Commission who requests one, or to any member of the public within seven days of receiving a request and payment of reasonable costs.3

Petitioners here, a number of noncommercial educational broadcast stations, challenge the constitutionality of these requirements, arguing that Section 399(b) and the rules promulgated by the FCC to enforce it violate the First and Fifth Amendments of the Constitution. We agree. We hold that Section 399(b) of the Communications Act places substantial burdens on noncommercial educational broadcasters and presents the risk of direct governmental interference in program content. Since no substantial governmental interest has been shown on the other side of the constitutional balance, the statute and rules at issue are unconstitutional.4I

The significance and function of Section 399(b) cannot be understood apart from the larger scheme of federal involvement in noncommercial broadcasting. It is to this system that we turn first, in order to place the requirement under review here in its proper context.

Public broadcasting dates back at least to 1919 when Radio Station 9XM began broadcasting from the University of Wisconsin.5 In 1939 the FCC first reserved certain space on the radio spectrum for educational radio,6 and in 1952 frequencies were reserved for public television as well.7 It was not until 1962, however, that the federal government became involved in a direct funding program for public broadcasting, and even that program was limited to construction of station facilities.

The Educational Television Broadcasting Facilities Act,8 passed in 1962, authorized a total of 32 million dollars to be spent on public television over a five-year period.9 Under the Act the Secretary of Health, Education, and Welfare distributes funds for acquisition of physical equipment necessary for television transmission, subject to a local matching requirement and a per-state limitation on funding. Money received under these provisions may be used only for equipment, not for salaries, operating expenses, or program production.

Five years later the Carnegie Commission on Educational Television completed its landmark study of public broadcasting. Its report, Public Television: A Program for Action, found that noncommercial television stations were in need of far greater financial support above and beyond the existing reservation of frequencies by the FCC and the facilities grant program administered by HEW if they were to realize their full potential. While the Carnegie Commission recognized an important role for state and local governments and private sources in funding public television stations, it concluded that federal support of operations and programming was essential to raising the significantly larger sums of money necessary for an effective system of public television. Carnegie Commission on Educational Television, Public Television: A Program for Action 33-35 (1967). The Commission then focused on the means for providing this federal funding:

Because we contemplate federal assistance to Public Television on a far larger scale than at present, the pressing need arises to identify the manner in which federal funds will flow to the system. There is at once involved the relation between freedom of expression, intimately and necessarily a concern of Public Television, and federal support.

Recognizing areas of special sensitivity, the Commission is persuaded that a nongovernmental institution is necessary to receive and disburse at least a part of those funds. The purpose is not to escape scrutiny but to minimize the likelihood that such scrutiny will be directed toward the day-to-day operations of the sensitive program portions of the Public Television system. * * *

Id. at 36-37 (emphasis added).

The Carnegie Commission's recommendation that federal financial support of programming and operations be provided through a Corporation for Public Broadcasting (CPB) was adopted by Congress in the Public Broadcasting Act of 1967. In its declaration of policy contained in this Act Congress found "that a private corporation should be created to facilitate the development of educational radio and television broadcasting and to afford maximum protection to such broadcasting from extraneous interference and control." 47 U.S.C. § 396(a)(6) (1970). CPB, a nonprofit District of Columbia corporation, was established to serve this purpose. Id. § 396(b). Under the Act CPB is governed by a 15-member Board of Directors, appointed by the President subject to confirmation by the Senate, no more than eight of whom may be members of the same political party. Id. § 396(c)(1). The Board is authorized to disburse funds it receives to program production entities and noncommercial broadcast stations,10 to arrange for an interconnection system capable of distributing programs to noncommercial stations, to conduct research and demonstrations, and to encourage creation of new noncommercial stations. Id. § 396(g)(2). While granting CPB "the usual powers" of a nonprofit corporation under District of Columbia law, Id. § 396(g)(3), Congress expressly prohibited the Corporation from owning or operating any station, network, or interconnection facility, or from contributing to or otherwise supporting any candidate for office. Id. § 396(f), (g)(3). In assisting in programming development CPB is required to adhere strictly to a standard of "objectivity and balance in all programs * * * of a controversial nature." Id. § 396(g)(1) (A). And in their local programming no noncommercial station may "engage in editorializing or may support or oppose any candidate for political office." 47 U.S.C. § 399(a) (Supp. V 1975).11

Establishment of the CPB and the statutory scheme of the Public Broadcasting Act were a product of a congressional determination that strong safeguards were necessary to ensure that federal funding of programming did not carry with it any political influence on the contents of that programming. Thus the Senate Report accompanying the Act carefully pointed out:

There is general agreement that for the time being, Federal financial assistance is required to provide the resources necessary for quality programs. It is also recognized that this assistance should in no way involve the Government in programming or program judgments. An independent entity supported by Federal funds is required to provide programs free of political pressures. The Corporation for Public Broadcasting, a nonprofit private corporation, authorized by title II of S. 1160 provides such an entity.

Your committee has heard considerable discussion about the fear of Government control or interference in programming if S. 1160 is enacted. We wish to state in the strongest terms possible that it is our intention that local stations be absolutely free to determine for themselves what they should or should not broadcast. As President Johnson said in his message of February 28:

Noncommercial television and radio in America, even though supported by Federal funds, must be absolutely free from any Federal Government interference over programming.

S.Rep.No.222, 90th Cong., 1st Sess. 4, 11 (1967). The same theme is echoed in the House Report:

How can the Federal Government provide a source of funds to pay part of the cost of educational broadcasting and not control the final product? That question is answered in the bill by the creation of a nonprofit educational broadcasting corporation.

Every witness who discussed the operation of the Corporation agreed that funds for programs should not be provided directly by the Federal Government. It was generally agreed that a nonprofit Corporation, directed by a Board of Directors, none of whom will be Government employees, will provide the most effective insulation from Government control or influence over the expenditure of funds. * * *

H.R.Rep.No.572, 90th Cong., 1st Sess. 15 (1967).

This is not to say, of course, that Congress chose to place public broadcasting beyond any form of federal regulation. Individual stations are licensed by the FCC and are generally subject to the same regulations as are commercial licensees.12 While the Public Broadcasting Act provides that nothing in the 1962 or 1967 Acts "shall be deemed * * * to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over educational television or radio broadcasting, or over the Corporation or any of its grantees or contractors * * *," 47 U.S.C. § 398 (1970), the CPB is accountable to Congress and the public. It is required to prepare an annual report of its activities for transmittal to Congress, must be audited annually, is subject to audit by the General Accounting Office, and, finally, is subject to congressional oversight through the appropriations process. 47 U.S.C. § 396(i) (Supp. V 1975), 47 U.S.C. § 396(L ) (1970).

But even in this oversight process the statutory scheme is designed to foreclose Congress from exercising any control over programming; while it can examine CPB's overall performance, congressional oversight does not extend to directing CPB or the Public Broadcasting Service (PBS), the interconnections facility formed by stations and funded largely by CPB to transmit programming to local licensees13 as to which programs or entities are deserving of support. Moreover, the federal government is not the sole source of funds for CPB, nor is it the primary source of financial support for public broadcasting as a whole14 ; in fiscal year 1976 only 27.7 percent of total public broadcasting income was provided by federal sources.15 Finally, neither CPB nor PBS can themselves determine which programs are actually seen by viewers around the country; the ultimate decision as to whether an available program is broadcast is left to the local stations, which CPB is foreclosed from owning or operating under the statute. The only constraint on the local stations' discretion in this respect imposed by statute is that they refrain from editorializing or endorsing any political candidate.

Thus we have in effect a carefully balanced system of dual checks against political influence over programming: the Corporation is free, within the constraints of objectivity and balance, of congressional interference in determining which entities or endeavors to support, and the stations are free, subject to generally applicable FCC regulation, to accept or reject programs supported by CPB and transmitted by PBS or National Public Radio. As the House Report stated:

In the same manner that the bill strives to insulate the Corporation from governmental control, the bill provides and the committee intends to see to it that the local educational broadcasting stations conduct their operations without Corporation interference or control.

H.R.Rep.No.572, Supra, at 20.

This court has been sensitive to maintain the delicate balance struck by Congress in the Public Broadcasting Act in our decisions construing that Act. Thus in Accuracy in Media, Inc. v. FCC, 172 U.S.App.D.C. 188, 521 F.2d 288 (1975), we upheld the FCC's determination that it lacked jurisdiction to enforce the "objectivity and balance" standard of the Act against the CPB, emphasizing that an opposite result might enlarge governmental control of programming and thereby raise substantial constitutional questions. And in Network Project v. Corp. for Public Broadcasting, 183 U.S.App.D.C. 70, 561 F.2d 963 (1977), Cert. denied, 434 U.S. 1068, 98 S.Ct. 1247, 55 L.Ed.2d 770 (1978), we held that private rights of action could not be implied from the Act to control CPB's activities. Any oversight of the Corporation, we found, could take place only through requirements of audits and accountability, as well as appropriations.

Section 399(b) was passed as an amendment to the Communications Act in 1973 with little debate or other legislative history. Two years later the FCC, in accordance with its statutory mandate, promulgated regulations governing compliance with the recording requirement. The petitioners sought review, arguing that the statute and regulations are unconstitutional in that they provide a "ready mechanism" not previously available for members of Congress and other government officials to involve themselves in disputes over the contents of individual programs and to influence programming decisions in the future. Brief for petitioners at 42-43. They contend that as a result Section 399(b) in its purpose and operation serves to burden and chill the exercise of First Amendment rights by noncommercial broadcasters.

Before addressing ourselves to the substance of petitioners' First Amendment claims, we must take note of two preliminary propositions about which there is no dispute. The first is that noncommercial licensees are fully protected by the First Amendment. Clearly, the existence of public support does not render the licensees vulnerable to interference by the federal government without regard to or restraint by the First Amendment. For while the Government is not required to provide federal funds to broadcasters, it cannot condition receipt of those funds on acceptance of conditions which could not otherwise be constitutionally imposed. See Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). Thus the Government cannot control the content or selection of programs to be broadcast over noncommercial television any more than it can control programs broadcast over commercial television16; in making such decisions which are at issue in this case noncommercial broadcasters, no less than their commercial counterparts, are entitled to invoke the protection of the First Amendment and to place upon the Government the burden of justifying any practice which restricts free decisionmaking.17 The second undisputed proposition requires even less discussion, though it is no less important: that the public affairs programming which is the subject of Section 399(b)'s recording requirement lies at the core of the First Amendment's protections.18 While scholars have differed on how broadly to define any core protection of the First Amendment, all have agreed that vigorous open discussion of public issues should be included.19

The First Amendment requires that the strictest form of scrutiny be applied where the purpose of a statute is related to suppression of free expression of ideas or information. Applying such strict scrutiny, the Supreme Court has held that the statute or regulation Must be found unconstitutional unless either the speech in question is not fully protected by the First Amendment or its suppression is essential to a compelling governmental interest,20 as where the message being suppressed poses a clear and present danger to the national well-being.21 In this case, as noted earlier, it is undisputed that the speech subject to regulation by Section 399(b) public affairs programming by noncommercial licensees is entitled to the full panoply of First Amendment protection. Nor is there any argument that Section 399(b) serves a compelling government interest; the FCC has conceded that there is no compelling governmental objective which can be invoked in support of the statute.22 As a result, if this statute is viewed as one relating to suppression of free expression, it must be held unconstitutional. And it could, we think, be so viewed.

First of all, the statute on its face is Not content neutral. Application of the statutory recording requirement is dependent upon the subject matter of programming; only programming concerning issues of public importance is regulated. This fact alone suggests a government purpose intentionally and impermissibly to restrict free speech on the basis of its content. As the Supreme Court recently noted:23

(T)he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. * * * To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content would completely undercut the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open." * * *

Moreover, the legislative history of Section 399(b) provides strong support for the view that the purpose of the recording requirement was related to suppression of free expression on issues of public importance. The only extended discussion of the purpose of this statute took place in the context of a colloquy between Senator Robert Griffin, the principal advocate of the recording requirement, who is participating as an Amicus in this case, and Hartford Gunn, then president of PBS. After the Senator read two letters dealing with ideological balance in public affairs programming on noncommercial television, the exchange continued:

Senator Griffin: During this committee's consideration of the 1970 Public Broadcasting authorization bill, I offered an amendment which was quickly opposed by many people in Public Television an amendment which would have provided that audio tapes of public affairs programs would be maintained for some reasonable period of time and would be available at the expense of the person requesting a copy.

There is the provision in the 1967 act which states that one of the purposes of the act is to facilitate the development of high-quality programs "with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature."

You certainly agree with that part of the act, I would think?

Mr. Gunn: Yes.

Senator Griffin: And you don't want Government censorship of your programs?

Mr. Gunn: No, sir.

Senator Griffin: But it would seem to me that private individuals who are interested in trying to assess the objectivity of those programs should have some way of finding out what was on the air.

Mr. Gunn: I agree, yes, sir.

Senator Griffin: If I can just take a few more minutes on this subject, I got interested in this question a few years ago when we were having the debate in Congress on the ABM. As you know, that was a very difficult issue for Members of Congress, and incidentally, it was decided in the Senate by one vote. It is my position, and I realize others don't agree with it, that if we hadn't supported the President on the ABM, he would not have been able to negotiate the SALT agreement. But putting that aside, this program was nationally distributed, and I assume by your organization. It was a very interesting example for me because my chairman of the other party happened to agree with me on the ABM, as I recall. Is that right, Mr. Chairman?

Senator Pastore: That's right.

Senator Griffin: I had heard about this program and that it was biased and unbalanced. Unfortunately, I did not get to see it, but, of course, you can't be watching all the channels all the time. At the time, I asked for a transcript or a tape and indicated that I would be glad to pay for whatever expense was involved, but the answer was no, Even though I was a Member of Congress, and even though I was a member of this committee.

Mr. Gunn: Was that request made of the Public Broadcasting Service or was it made of the producer of the program? I am trying to recall.

Senator Griffin: I can't recall either. In any event, I did not get any help. Frankly, your letter to the Wall Street Journal only keeps me going, because you are going to make these tapes available only to people that you consider have proper credentials in research or journalism.

Now, if you believe that policy is a substitute for my legislation, I don't. To avoid any kind of Government censorship, you should make programs broadcast over-the-air available to the public as is the case with material that is printed in the newspaper. It is in the public domain at that point. I don't see how any broadcaster can refuse or make it difficult to find out what has been put on the air.

Mr. Gunn: I agree with you absolutely.

Public Broadcasting Hearings on S. 1090 Before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess. 113-114 (1973) (emphasis added). Later, during House debate on the bill, Congressman Van Deerlin stated:

In addition, section 2 of the proposed legislation stipulates that any station receiving assistance from CPB make audio transcriptions of programs in which any issue of public importance is discussed. These tapes must be maintained by the station for 60 days, for possible public scrutiny. Of course, no commercial broadcaster is saddled with this requirement It comes dangerously close to censorship. For this reason, I must point out that as far as I am concerned the provision in question is in no way a "hunting license" for the Federal Government. Rather, it is a housekeeping device, which I anticipate will be rarely if ever used.

119 Cong.Rec. 25175 (1973) (emphasis added).

What is initially most striking about this legislative history is its marked contrast to that of the 1967 Public Broadcasting Act. Whereas the Senate Report on the 1967 Act explicitly stated that federal financial assistance "should in No way involve the Government in programing or program judgments," and that local stations should be "Absolutely free " in their broadcasting decisions,24 Senator Griffin, having been rebuffed in his attempts to secure the tape of an individual program "even though I was a Member of Congress, and even though I was a member of this committee," advocated the recording requirement as a necessary alternative to government censorship of programming. A recording requirement which Representative Van Deerlin, one of its supporters, viewed as "com(ing) dangerously close to censorship" was thus incorporated into an Act whose purpose, according to the original House Report, was to allow the federal government to "provide a source of funds to pay part of the cost of educational broadcasting and not control the final product * * * (to) provide the most effective insulation from Government control or influence over the expenditure of funds."25

To be sure, Congress is generally free to change its mind; in amending legislation Congress is not bound by the intent of an earlier body. But it is bound by the Constitution. The legislative purposes of the 1967 Public Broadcasting Act, as stated in the Senate and House Reports, reflect not only a prudential judgment that Congress should not involve itself in the programming decisions of local licensees, but also a constitutional judgment that it must not do so. To the extent that Section 399(b) rejects this judgment, and was intended instead to impose the threat of congressional or governmental control over the content of noncommercial public affairs broadcasting, it is based upon a purpose which mandates its invalidation.

We need not, however, rest on this basis alone in invalidating Section 399(b). Since Section 399(b) clearly imposes at least incidental restraints on First Amendment freedoms, it can be upheld only "(1) if it is within the constitutional power of the Government; (2) if it furthers an important or substantial government interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).

Thus, even if we assume that enactment of Section 399(b) is within the constitutional power of government, and that the governmental interest in its enactment is unrelated to suppression of free expression, the important and substantial government interest it furthers has not been identified, nor is it shown that Section 399(b)'s incidental restriction on First Amendment freedoms is not greater than is essential to the furtherance of that interest. When we examine Section 399(b) in the light of these O'Brien criteria, we are compelled to find the statute and regulations unconstitutional.

The threshold for applying the O'Brien tests is, of course, that a statute Does impose a restraint on First Amendment freedoms. Absent such a restraint, we have no occasion to require that the governmental interest involved be substantial and important, as opposed to merely legitimate, or to examine closely the means employed by the statute to further the stated end. In this case we think this threshold requirement is clearly met even apart from the actual burdens of compliance with Section 399(b)26 by the chilling effect which Section 399(b) imposes on local licensees in their exercise of First Amendment rights.

Government financial support of noncommercial broadcasting itself carries with it dangers of an inhibiting effect on programming. Dr. Frederick Breitenfeld, Executive Director of the Maryland Center for Public Broadcasting, has pointed out that his system, or any other state-owned system, is "less likely" than it would otherwise be to present controversial political programming. In his own case, he said, it would be unlikely that viewers would see a program highly critical of the Maryland General Assembly, since the Assembly is the source of two thirds of the system's funding.27 While some such inhibition may be inevitable in any scheme of government funding, the risk to First Amendment values must be minimized if the scheme is to pass constitutional muster. See Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). In the Public Broadcasting Act of 1967 Congress sought to minimize such risks by ruling out any role for itself in deciding what programs or entities are funded by CPB and by preserving the freedom of local broadcasters to make their own day-to-day programming decisions without any interference by CPB. Section 399(b), on the other hand, enhances such risks by creating a means for government review, on a program-by-program basis, of the contents of every public affairs broadcast of every licensee who has received financial support from either HEW or CPB.

In recommending establishment of CPB as a mechanism for distributing federal funds for programming, the Carnegie Commission recognized the inherent dangers to the free and robust discussion protected by the First Amendment where programs are subject to review on an individual basis by government officials. It emphasized that the purpose of CPB "is not to escape scrutiny but to minimize the likelihood that such scrutiny will be directed toward the day-to-day operations of the sensitive program portion of the Public Television system." Carnegie Commission on Educational Television, Supra, at 37. This recognition of the risks of program-by-program review is one that has been shared by both the courts and the Federal Communications Commission. The FCC has generally eschewed any such review, See Accuracy in Media, Inc., 43 FCC2d 851 (1953), Aff'd, 172 U.S.App.D.C. 188, 521 F.2d 288 (1975), and where it must take place, as in enforcement of the fairness doctrine, review has been accompanied by judicially imposed standards and safeguards designed to minimize intrusion on First Amendment values. See National Citizens Committee for Broadcasting v. FCC, 186 U.S.App.D.C. 102, 567 F.2d 1095 (1977); Straus Communications, Inc. v. FCC, 174 U.S.App.D.C. 149, 530 F.2d 1001 (1976); National Broadcasting Co., Inc. v. FCC, 170 U.S.App.D.C. 173, 516 F.2d 1101 (1974), Vacated as moot, 170 U.S.App.D.C. 252, 516 F.2d 1180 (1975) (per curiam), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976).

It is true, of course, as the FCC strongly asserts, that Section 399(b) on its face neither creates any new content restrictions on noncommercial licensees nor establishes any new mechanism for enforcement of existing standards on a program-by-program basis.28 But the fact is that the system of broadcast regulation by Congress and the FCC, as currently structured, provides ample opportunity for substantial chilling of First Amendment freedoms, particularly where relatively small, publicly supported stations are concerned. Section 399(b), in its operation, clearly serves to facilitate those exercises of power and persuasion which create the chill. And while the statute itself contains no new content standards applicable to noncommercial licensees, the expressions of concern and dissatisfaction with the content of noncommercial public affairs programming in the legislative history of this statute suggest that its effect if not its purpose is to impose stricter content standards on noncommercial licensees in their public affairs programming.

Noncommercial licensees, like their commercial counterparts, are subject to regulation and license renewal proceedings by the FCC.29 This renders them subject as well to a variety of Sub silentio pressures and "raised eyebrow" regulation of program content. See Bazelon, FCC Regulation of the Telecommunications Press, 1975 Duke L.J. 213, 215-216. While recent administrations provide ample examples of open forms of such pressure, aimed as "inhibiting * * * the networks and their professed concern with achieving balance * * * (and) dampen(ing) their ardor for putting on 'loyal opposition' type programs," Memorandum from Charles W. Colson to H. R. Haldeman, September 25, 1970, Quoted in S.Rep.No.93-981, 93d Cong., 2d Sess. 283-284 (1974), more subtle forms of pressure are also well known. The practice of forwarding viewer or listener complaints to the broadcaster with a request for a formal response to the FCC, the prominent speech or statement by a Commissioner or Executive official, the issuance of notices of inquiry, and the setting of a license for a hearing on "misrepresentations" all serve as means for communicating official pressures to the licensee.30

Ability to resist such pressures, and to avoid the chill on future programming which they bring, would seem clearly related to the financial strength and independence of the licensee.31 While the Washington Post may have little difficulty, even at the possible risk of nonrenewal of its television license,32 in deciding to continue its vigorous investigation of the Watergate break-in, this decision would be a much riskier and more difficult one for a smaller, less financially secure organization unable to bear the costs of protracted litigation. And if the networks have difficulty in resisting government pressure to shift their programming emphasis, certainly a small station which depends significantly on CPB or HEW both of which depend in turn upon congressional appropriations is far more vulnerable.33

The vulnerability of noncommercial licensees to official pressures is increased by Section 399(b), for the operation of the taping requirement serves to facilitate the exercise of "raised eyebrow" regulation. Quite simply, it provides a mechanism, for those who would wish to do so, to review systematically the content of public affairs programming; based on such review they may make use of existing means for communicating their displeasure.

In seeking to identify the chilling effect of a statute our ultimate concern is not so much with what government officials will actually do, but with how reasonable broadcasters will perceive regulation, and with the likelihood they will censor themselves to avoid official pressure and regulation. Mere passage of a statute which clearly serves the purpose of allowing government officials to review program content on a program-by-program basis and does not clearly serve any other legitimate purpose34 is reason enough for local licensees to fear and to dilute their public affairs coverage. For it is one thing for a broadcaster to decide independently to retain recordings of his programming; it is quite another for him to be told by Congress that when the programming concerns issues of public importance he must retain recordings and make them available to the Commission or to any individual who requests them.

But the message conveyed to local broadcasters by Section 399(b) is not confined to passage of the statute itself; it is stated most clearly and articulately in the legislative history preceding enactment of the statute, quoted earlier. As to the question whether it is reasonable or likely for broadcasters to fear that Section 399(b) will be employed by government officials to review the content of individual programs, one need only look to Senator Griffin's remarks that an important stimulus to his introduction of this legislation was his inability to secure a recording of a program on an important national issue which he had heard was "biased and unbalanced." Whatever purpose the Senator might have had in seeking to review this tape, it would certainly not be unreasonable for a station that had aired the program to fear that some form of protest or pressure might be forthcoming if the Senator objected to its contents, and to adjust its future coverage of public affairs to reflect the increased risks involved.

More troubling still are the references in the legislative history to the recording requirement as an alternative to government censorship and as a mechanism "com(ing) dangerously close to censorship." If the recording requirement was intended to and actually does serve merely as a neutral means of affording access to the public or as some form of "housekeeping device," then one must ask how it could be characterized or considered as an alternative to or as some form of government censorship. The answer to this question lies in Senator Griffin's repeated references, in both the quoted colloquy and elsewhere,35 to the recording requirement's utility in ensuring strict objectivity by licensees in their public affairs broadcasting. To the extent the recording requirement serves this purpose it will be effecting a new and significant diminution in the broadcasters' First Amendment freedoms in the area of public affairs. For, apart from Section 399(b), there is no requirement that any licensee commercial or noncommercial adhere to a standard of strict objectivity and balance in its public affairs programming; all that is required is compliance with the fairness doctrine.

The seemingly stricter "objectivity and balance" standard of Section 396(g) (1),36 referred to by Senator Griffin, is applicable only to the CPB itself, and even there only to a narrower category of programming dealing with controversial issues. Extension and enforcement of this strict standard against all individual noncommercial licensees with respect to all programming "in which any issue of public importance is discussed," as broadly defined by the FCC,37 would raise serious constitutional questions, particularly in light of the Supreme Court's cautious approval of the more limited fairness doctrine in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). And yet, without doing so explicitly, Section 399(b) seems effectively to impose this standard on broadcasters who pay heed to the background of the statute. For the unmistakable implication of Section 399(b) and its history is that if public affairs programming by noncommercial licensees is perceived by government functionaries to be anything less than scrupulously objective and balanced, then action may be taken against the licensees or further legislation enacted.

Recognition of this function of Section 399(b) its effective imposition of a new content standard based in turn on the content of programming makes clear why Senator Griffin could view a recording requirement as an "alternative to Government censorship" and why Representative Van Deerlin could characterize the requirement as one which "comes dangerously close to censorship." The chill thereby placed on First Amendment freedoms is, without doubt, of the most serious dimensions. And the likelihood that broadcasters will so censor themselves, in view of Section 399(b)'s history and the special vulnerability of noncommercial licensees to government action, is one that cannot be ignored. Even were there no other basis for concluding that this statute carries with it a deterrent effect on vigorous public affairs programming, this aspect alone would lead us to conclude that the First Amendment is properly invoked in this case.

We cannot, of course, specify with any degree of certainty the precise quantity of chill which is or will be produced by Section 399(b). Chilling effect is, by its very nature, difficult to establish in concrete and quantitative terms; the absence of any direct actions against individuals assertedly subject to a chill can be viewed as much as proof of the success of the chill as of evidence of the absence of any need for concern. To be sure, where actual instances of harassment are established, or where past experience with similar regulation yields concrete evidence of a successful chill, the case is a stronger one, and the burden on government to justify its regulation must be heavier. See NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The absence of such concrete evidence, however, does not mandate dismissal of the claim out of hand; rather, it is the task of the court to evaluate the likelihood of any chilling effect, and to determine whether the risk involved is justified in light of the purposes served by the statute. See Shelton v. Tucker, supra, 364 U.S. at 486, 81 S.Ct. 247; Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960).38 In the instant case we think it clear that Section 399(b) carries with it a serious danger of chilling vigorous public affairs programming. The question, then, is whether this danger is justified.

The panel which heard argument in this case initially remanded the record to the Commission for consideration of certain questions raised by petitioners' First Amendment challenges.39 The first and most critical question, for present purposes, sought the Commission's view as to "what 'important or substantial government interest' is furthered by the recording requirement," citing United States v. O'Brien, supra. In response the Commission, after noting that "the legislative purpose of the statute is not entirely clear,"40 suggested three purposes, which must be examined according to O'Brien 's tests.

1. Oversight of federal funds. The purpose most strongly and persistently advanced by the Commission is that Section 399(b) "give(s) taxpayers, who provide the bulk of financial support for these stations, a means for reviewing the stations' performance." In the FCC's view the statute thus serves as a "reasonable imposition of accountability" for the expenditure of public funds. Supplemental Memorandum of FCC on Rehearing En Banc at 17.

We do not doubt that oversight of the expenditure of federal funds is a substantial and important government objective which might well justify certain incidental restraints on First Amendment rights. In this case, however, it is quite clear that this oversight objective is not one which Section 399(b) logically can be said to further.

First of all, contrary to the FCC's assertion, federal tax dollars Do not provide the bulk of support to noncommercial licensees. As noted earlier, in fiscal year 1976 only 27.7 percent of total broadcasting income was derived from federal sources.41

More importantly, application of the recording requirement is not tied to the particular programs which Are produced with federal funds. The threshold for application of Section 399(b) is that a licensee have received funding either under the facilities grant program or the Public Broadcasting Act after August 1973. On the one hand this means that funding from other federal sources which amounted to a 19.8 percent of federal funding for noncommercial broadcasters in 197642 is not subject to Section 399(b)'s oversight. On the other hand, the obligation to record does extend indefinitely, by the terms of the statute to all licensees who receive any funding at all from the specified sources. Thus the licensee who accepted a grant to purchase equipment in 1973 and received no other federal funding would be obliged to record all his public affairs programs thereafter, while the licensee, commercial or noncommercial,43 who is continually federally subsidized apart from Sections 390-399 of the Communications Act is never subject to the requirement.

Moreover, once the licensee has come within the threshold for application of the recording requirement, the statutory classification defining what must be recorded is wholly unrelated to the rationale of oversight of the expenditure of federal funds. There is absolutely no likely or necessary correlation between the content of programming public affairs or not and federal funding. Quite clearly, not all publicly funded programs deal with public affairs, nor are all public affairs programs publicly funded. Nor does programming subject to Section 399(b) constitute the bulk of noncommercial broadcasts; most of what these licensees do, with their own and federal funds, escapes scrutiny under Section 399(b).44

In practice, then, any intersection between public support of a particular program and the application of Section 399(b) is little more than coincidental. As a result, even assuming that those who receive federal funds may be subject to strict requirements of accountability with respect to expenditure of the funds, the fact remains that Section 399(b) does not further the goals of oversight and accountability except by chance. Certainly, such coincidental furtherance of an objective even an important and substantial one cannot satisfy O'Brien 's requirement that the regulation or statute actually serve an important or substantial government interest. Moreover, even if we were to assume that the recording requirement does further the interest in accountability, it is clear that Section 399(b) requires licensees to record some programs, which, because wholly unsupported by federal funds, should not be subject to recording in light of the stated purpose. Such "overinclusiveness" of the statute's application is inconsistent with O'Brien 's additional requirement that government regulations be no more restrictive than is essential to further the substantial goals served.

The oversight rationale, then, fails to meet O'Brien 's tests and to validate Section 399(b) on two counts.

2. Preservation of significant programs. The second purpose suggested by the FCC in its response to remand is that "such a temporary archive could prove useful to individuals simply desiring to obtain copies to preserve significant programs that stations may have broadcast in carrying out their obligations as public trustees."

Initially, we must question whether this objective is a "substantial or important government interest," as required by O'Brien. While we do not doubt the desirability of preserving significant broadcasts or maintaining open archives or libraries of programs, we are less certain that this end should be considered sufficiently substantial and important to justify restrictions on First Amendment rights. But we need not decide this question, for it appears that Section 399(b) no more furthers this goal than it did that of federal oversight and accountability.

First, it is clear that "significant" programs are produced by commercial licensees as well as by the noncommercial broadcasters subject to Section 399(b), and the former are no less public trustees than the latter. Second, it is equally clear that "significant" programming and public affairs programming are not coextensive: some educational or entertainment programs, broadcast by both commercial and noncommercial licensees, may be equally or more "significant" than some public affairs programs subject to Section 399(b)'s recording requirement.

Thus Section 399(b) furthers the stated interest only partially and even then only coincidentally. Many of the most "significant" programs broadcast by public television and radio and all of those produced by commercial broadcasters will not be preserved by this statute. Only if a public affairs program broadcast by a licensee receiving federal funds under the Communications Act Happens to be "significant" however that term is defined will the stated objective be served at all. And again, as with the federal oversight objective, the statutory requirement is overinclusive with reference to the asserted governmental interest. For unless one concludes that all public affairs programs, as broadly defined by the FCC,45 broadcast by stations subject to Section 399(b) are clearly "significant" and deserving of preservation, then it is inevitable that some "insignificant" programs which need not be preserved will nonetheless be recorded a result which is at odds with O'Brien 's requirement that government regulation be narrowly tailored to meet its substantial ends and impose no restraints unnecessary to these ends.

The second stated objective, then, like the first, is inconsistent with O'Brien on at least two counts.

3. Enforcing objectivity and balance. The third and final objective suggested by the FCC in its response to remand is that "(t)he recording requirement could be a useful aid for Congressmen or individual members of the public in evaluating the extent to which stations, as well as CPB, are meeting their goals (under Section 396(g)(1)(a))." Plainly, this objective fails to meet the O'Brien tests.

The goal of Section 396(g)(1)(a), "strict adherence to objectivity and balance in all programs * * * of a controversial nature," is applicable to CPB, not to the individual licensees. Section 399(b), on the other hand, is directed to local licensees and is applicable to programs dealing with public issues whether or not they are distributed by CPB and whether or not they are "of a controversial nature." While local noncommercial licensees are subject to the fairness doctrine in their programming on controversial issues,46 so too are commercial licensees, and the FCC has concluded that Section 399(b) is Not necessary to enforcement of this obligation.47

At best, then, Section 399(b) serves as an overly restrictive means for evaluating CPB's compliance with its statutory mandate. Because local licensees are required to record programs which are not funded by CPB and which do not deal with controversial issues, the statute imposes restraints on First Amendment rights beyond those which are essential to fulfillment of its stated goal. Such unnecessary restriction of First Amendment rights is clearly inconsistent with the requirements of O'Brien.

This overly restrictive aspect of Section 399(b)'s operation disappears only if we view the governmental objective as one of enforcing compliance by local licensees with strict standards of objectivity in their own public affairs programming. With respect to this objective, the statute imposes no unnecessary restraints. But if we accept this as the purpose of the statute, then it is clear that we have moved beyond the realm of incidental restraints which can be justified under the O'Brien tests to that of regulation aimed at suppressing free speech, which may be justified only by reference to the most compelling government interests.

The purposes offered by the Government in support of Section 399(b) quite simply fail to satisfy the requirements established in O'Brien. Nor do we reach a different result if, instead of applying O'Brien 's stated tests, we balance the government interest served against the First Amendment burden imposed, as has been done in some recent cases.48 For however much the FCC seeks to minimize the restraint in this case, the First Amendment does not permit us to tolerate even minimal burdens on protected rights where no legitimate government interest is truly being served.

Finally, we turn to petitioners' equal protection claim. Essentially, petitioners argue that they are denied equal protection of the laws because Section 399(b)'s recording requirement is limited in its application to noncommercial broadcasters receiving federal funds, leaving commercial broadcasters free to record or not as they please. While the FCC did consider extending the recording requirement to commercial broadcasters, it recently concluded that the burdens involved outweighed any benefits of the required recording and declined to impose this obligation on commercial broadcasters.49

In equal protection challenges the critical question is always " whether there is an appropriate governmental interest suitably furthered by the differential treatment" at issue. Police Department of Chicago v. Mosley,408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Where the classification drawn by a statute is not itself invidious and where no fundamental rights are affected, it is sufficient that the government interest is legitimate and the classification rationally related to that interest.50 But where, as here, fundamental rights Are involved, stricter scrutiny is appropriate. Thus where noncontent-based distinctions are drawn in a statute affecting First Amendment rights, the Supreme Court has held that the government interest served must be "substantial" and the statutory classification "narrowly tailored" to serve that interest if the statute is to withstand equal protection scrutiny.51

This equal protection standard is closely related to the O'Brien First Amendment tests, already applied in this opinion to Section 399(b). While our focus in equal protection scrutiny is on the challenged classification, the critical questions asked are the same: whether there is a substantial government interest being served and whether the statute particularly the challenged classification is narrowly tailored to serve that interest.

Clearly, the FCC's claim that the recording requirement serves as a means to preserve significant programs cannot support the statute under these tests: even if we consider this interest a substantial one, significant programming is, as noted earlier, produced by commercial stations as well as by the noncommercial licensees subject to Section 399(b), and both are equally trustees of the public. Nor could it be argued that the interest being served is compliance with standards of objectivity or fairness; again, as noted earlier, both commercial and noncommercial licensees are subject to exactly the same fairness standards in their programming. This interest, then, like that in preserving tapes of significant programs, provides no basis for application of the recording requirement only to noncommercial licensees who have received federal funds under Sections 390-399.

Indeed, the only interest advanced by the FCC which even plausibly might justify this distinction is that Section 399(b) serves as a means for federal oversight of the expenditure of federal funds. Our analysis of this objective in the context of the O'Brien tests, however, made clear that application of the recording requirement is in no way tied to expenditure of federal funds on the programs recorded. As a result, the interest in oversight and accountability is served, if at all, only by coincidence. Certainly a governmental interest, no matter how substantial in and of itself, cannot serve to justify a statutory classification when the interest is not in fact one which is truly furthered by the statute. Moreover, even were this interest in some sense served by the statute as a whole, the O'Brien analysis made clear that it is not one which the classification at issue here, between commercial and noncommercial licensees, is narrowly tailored to further.52

Because no substantial governmental interest has been suggested which the distinction between commercial and noncommercial licensees is narrowly tailored to further, we must conclude that the statute is unconstitutional under the Fifth Amendment.

In this case the spectre of government censorship and control hovers, not only over public broadcasting, but over all broadcasting. For if this legislation is constitutional as to public broadcasting, similar legislation as to all broadcasting is standing in the wings. If the Government can require the most pervasive and effective information medium in the history of this country to make tapes of its broadcasting for possible government inspection, in its own self-interest that medium will trim its sails to abide the prevailing winds.

For the above stated reasons Section 399(b) is unconstitutional and the rules and regulations of the Federal Communications Commission which implement it are vacated.

So ordered.

BAZELON, Circuit Judge, concurring.

Petitioners challenge the constitutionality of Section 399(b) and the rules promulgated thereunder by the FCC on both First Amendment and Equal Protection grounds. Judge Wright's opinion makes a persuasive case that § 399(b) places substantial burdens on noncommercial broadcasters and presents the risk of direct governmental interference in programming content in violation of the First Amendment. Indeed, this argument is a strong one and might well prevail. But however strong that challenge is, it is even clearer that § 399(b) violates the Equal Protection guarantee of the Fifth Amendment, and it is thus unnecessary to decide whether the chill imposed by this statute is sufficient to require its invalidation on First Amendment grounds alone. Because § 399(b) not only "touches upon" fundamental First Amendment freedoms, but does so by classifications formulated explicitly in terms of the content of speech, we must examine the challenged regulation to insure that it is precisely tailored to serve legitimate governmental interests. "Of course, the equal protection claim in this case is closely intertwined with First Amendment interests . . . . As in all equal protection cases, however, the crucial question is whether there is an appropriate governmental interest suitably furthered by the differential treatment." Police Department of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). As the opinions of Judge Wright and Judge Robinson convincingly establish, when § 399(b) is measured against its intended objectives, it fails even to satisfy the demands of limited Equal Protection scrutiny. Hence, we must conclude that the statute is a constitutionally impermissible means of furthering any or all of its ostensible goals.

Accordingly, I concur in the judgment of the court and join in Parts I and IV of Judge Wright's opinion and in the opinions of Judge Wright and Judge Robinson to the extent that they reflect these views.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge, concurring in part and concurring in the judgment:

It certainly may seem curious that broadcasters, whose mission is to display their creations to the widest possible audiences, are striving so hard to keep certain of their programs from becoming viewable more than once. This extensive litigative effort bespeaks, then, deep concern that the superficially innocuous recording requirement at issue will jeopardize cherished journalistic independence. Petitioners seek to overturn that requirement under the First Amendment, and Judge Wright's opinion presents a persuasive analysis of the chill that Section 399(b)1 and the implementing regulations could forebode for First Amendment expression. Nonetheless, I think our decision is more firmly grounded on the Fifth Amendment's pledge of equal protection of the laws.2 Accordingly, I join in Parts I and IV of Judge Wright's opinion and in the judgment of the court, and elaborate herein my reasons for doing so.

* Section 399(b) draws classifications among broadcasters in two ways. First, it applies only to those licensees who receive financial assistance from certain specific federal sources; more importantly, it applies only to those broadcasters who air public affairs programs.3 Petitioners, who are among the class burdened, do not argue that they are politically powerless4 or have historically been subjected to unequal treatment,5 and obviously they do not comprise a "discrete and insular" minority.6 Thus no suspicions are raised simply by the nature of the group around whose collective neck the legislated millstone has fallen.

But while the affected class itself raises no eyebrows, the recording obligation Section 399(b) imposes on a differential basis calls for closer investigation.7 We have here a mandate that is specifically related to speech. In a sense, the recording directive facially impacts on First Amendment interests no greater than do many other more commonplace regulatory commands that are similarly expensive and time-consuming to obey.8 This one, however, varies expressly and proportionally with the level of communicative activity of a particular kind, which is not the case with such general edicts as those summoning broadcasters to submit reports and pay taxes.9 Noncommercial licensees who emphasize public affairs in their programming bear the brunt of the recording rule, and resultantly the statute and the supplementing regulations on their face could operate as a disincentive to programming of that type. Beyond that, even, petitioners con tend that we should look to what they allege is the requirement's improper purpose facilitation of governmental pressure on noncommercial broadcasters. In support of their argument, they cite remarks of Senator Griffin, quoted in Judge Wright's opinion,10 as indicative of a congressional willingness to exact recording as the Quid pro quo for avoiding more direct governmental censorship.

It cannot be gainsaid that the existing regulatory framework provides dangerous opportunities for abuse.11 But the call for recording adds little more to that peril; it simply makes marginally easier what could happen in any event.12 Whether the heightened menace posed by Section 399(b) imposes a chill on First Amendment freedom sufficient to require its invalidation on that ground is a question I see need to not address. Though Judge Wright's opinion states a persuasive case that the section "was intended . . . to impose the threat of congressional or government control over the content of noncommercial public affairs broadcasting,"13 I think it jurisprudentially sounder to avoid whenever possible as it is here a direct search for improper motives of the legislature in passing a law, or of the executive in implementing it. In any event, I would rely upon a probe of that kind to overturn governmental action only when the exploration has uncovered clear and convincing proof.14

Moreover, petitioners' contention runs afoul of the sensible proposition that it benefits no one to invalidate automatically and totally every law that might do some good merely on the ground that it might also be used to do some bad. It must be remembered that this litigation is not an effort to enjoin an instance of the misuse of Section 399(b) feared by petitioners. Rather, we are asked to invalidate on its face the entire provision on the basis of apprehensions that it might sometimes though of course it might never be abused. Judicial review to assure the constitutionality of governmental action is not so blunt an instrument that ordinarily we must upset a legislative or administrative scheme in advance of a "reasonable probability" of perversion of power.15 Normally we can await a real threat of the disease and then intercept it, or at least carefully excise it from the body politic without necessarily maiming the patient.

Hence, I must reject petitioners' plea to subject Section 399(b) to the strictures of the First Amendment. That I would reserve for statutes facially impinging on First Amendment interests and those being or likely to be perverted to do so. Yet, because the burden of this legislation is assigned on the basis of the nature of the expression, and because suspicions about its real objective and potential use have been voiced either of which might serve to deter broadcasters' willingness to air controversial programs one cannot shed entirely his First Amendment cares.16 So, any exploration into whether Section 399(b) satisfies the demands of Fifth Amendment equal protection must be conducted in light of these somber First Amendment concerns. Indeed, petitioners argue that equal protection summons careful scrutiny to assure that the requirement is "narrowly tailored" to serve a "substantial governmental interest."17 The invitation is tempting,18 but I believe Section 399(b) cannot withstand even more restrained equal protection review, and hence I feel no need to measure it against any more stringent standard.

Having ascertained the class and the interests affected, the next step is to determine whether "the classifications drawn in (the) statute are reasonable in light of its purpose."19 This is a quest first entailing identification of Section 399(b)'s ostensible legitimate objectives. That will be no mean feat here, since Congress has indicated only vaguely what ends or mixture of ends the recording requirement was intended to serve.20

The legislative history of Section 399(b) is sparse indeed. As Judge Wright observes, some statements during the legislative debates point to an undifferentiated intent to censor,21 but that is not all that surfaces at times. There are also hints that program recording was meant to serve the objectivity and balance directive of Section 396(g)(1)(A)22 or the ban on editorializing in Section 399(a).23 The Commission as respondent and Senator Griffin as amicus curiae suggest that Section 399(b) was directed additionally toward preservation of significant programming or oversight of federal expenditures. No reference to these latter two are seen in the legislative history, and courts cannot rely upon aims that apparently never crossed the minds of the legislators,24 particularly when confronted by the possibility of danger to a fundamental interest. Even when Section 399(b) is analyzed in relationship to all these supposed goals,25 however, it emerges as an odd mechanism for producing any of the results for which some would give it credit.

If this be its purpose,26 then Section 399(b) is grossly and indisputably underinclusive. Noncommercial licensees who have not accepted federal funds or who broadcast little or no public affairs programming as well as all commercial licensees undeniably air many "significant" presentations.27 Absent any legislative or administrative findings on this score, I am left to common sense, and it simply strains credulity to think that the burdened class is responsible for a decisionally conclusive portion of "significant" programming.28 Thus I must turn elsewhere to find a legislative goal explaining the distinction.

At first blush, this end seems related to a means, such as Section 399(b), that draws a distinction on the basis of receipt of federal funds, but careful analysis is needed before the law can be approved as furthering fiscal oversight. Surely more Can be expected of those who drink deepest at the public trough, but that which is expected must be related to governmental provision of assistance; the existence of a fulcrum such as public aid is not the equivalent of a constitutionally-valid reason for applying leverage.29 The rubric of funding oversight can be invoked only when the vehicle chosen seems designed to give assurance that the funds are being properly spent, and that is not the case here.

The recording requirement has no sensible correlation with this supposed target. The burdens of Section 399(b) fall most oppressively on those who most often broadcast public affairs programs, not on those who most extensively receive federal money. Consequently, the requirement is both over- and underinclusive: it applies to all public affairs presentations by federally subsidized noncommercial broadcasters, even though most of such programming is unaided by federal funding;30 it does not apply to any other type of programs, though millions of federal dollars are expended for their presentation.31 In short, while oversight of federal expenditures is a laudable end, the Section 399(b) means has, in Judge Wright's words, at most but an occasionally coincidental relationship to it.32

This purported mission comes from Section 396(g)(1)(A), which instructs the Corporation for Public Broadcasting (CPB) to adhere to a policy of "objectivity and balance in all programs . . . of a controversial nature."33 The fairness doctrine, which requires all broadcasters to cover public issues and to present conflicting points of view, is somewhat similar.34 Enforcement of this latter duty, however, is hardly the objective of Section 399(b), for the Commission has determined that a recording requirement is not needed therefor.35 Section 399(b), moreover, would be irrationally underinclusive if directed toward that end since it does not apply to commercial licensees. Assuring compliance with Section 396(g)(1)(A) is more pertinent to Section 399(b), but that certainly does not explain the differential treatment it accords.

The policy of objectivity and balance is, to begin with, a prescription only for CPB in its efforts to develop and upgrade public broadcasting.36 When Section 399(b) was first considered, CPB was already retaining copies of every program it funded, so Congress knew there was no problem in checking on CPB's performance.37 The objectivity and balance requirement of Section 396(g)(1)(A) does not in terms apply to individual noncommercial licensees in airing their public affairs programs even though federally funded. Section 399(b), on the other hand, is not self-limited even to licensees assisted by CPB grants, but encompasses anyone who at any time has received public broadcasting funds under the Act from any federal source.38 It is surely curious that the objectivity and balance directive applies only to CPB and not individual licensees while the recording requirement, which is said to be rationally related, applies only to the individual licensees and not CPB. Thus the taping requirement does not seem linked in any way to an effort to promote objectivity and balance, and much less could it be rationally related to that end.

Some of my dissenting brethren nonetheless accept that objective as Section 399(b)'s goal, and are able to avoid prohibitive overinclusiveness therein by the simple expedient of narrowing the statutory language to match that goal by defining the means to fit the end. Judge Leventhal reads that critical Section 399(b)(1) phrase, "each licensee which receives assistance . . . after the date of (its) enactment", as referring to "any program" and not to "each licensee."39 I agree, however, with Judge Wright that we cannot adopt such a constrictive construction if it would do violence to evident legislative intentions respecting scope of the recording requirement.40 "Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose."41 As Justice Holmes once put it, in construing a statute the judicial "function is merely academic to begin with to read English intelligently and a consideration of consequences comes into play, if at all, only when the meaning of the words used is open to reasonable doubt."42 Hardly more plainly could Congress have made its wish known when in Section 399(b)(1) it said that "each Licensee which receives assistance" shall abide the taping requirement for its public affairs programs.43

Even if the statutory phrase in question were somewhat ambiguous, I could not accept the reading suggested as a reasonable version of its intended meaning. That interpretation apparently has not occurred to any of the numerous lawyers in this litigation, or to the Commission or any of those who made presentations to it regarding the taping rule, or to Senator Griffin in his amicus brief. More importantly, strong indications of congressional design are all to the contrary. As Judge Wright notes, Judge Leventhal's construction is irreconcilable in three particulars with Section 396(g)(1)(A).44 And a contemporaneous administrative construction the Commission's, in the rulemaking proceeding we are now reviewing is diametrically opposed to Judge Leventhal's interpretation and yet was not objected to by a single legislator.45

Referring to admittedly ambiguous statements by two Members of Congress which at most "reveal( ) one purpose"46 but do not exclude others,47 and do not speak directly to the scope of Section 399(b) Judge Leventhal's dissent concedes that the main reason for the judicial draftsmanship it proposes is an effort to avoid constitutional susceptibility.48 But surely "a court may not exercise legislative functions to save the law from conflict with constitutional limitation."49 And if statutes must always be narrowed to the scope tolerated by permissible goals, every judicial decision overturning a law on grounds of overinclusiveness of persons not similarly situated was wrongly decided.50 Just months ago, the Supreme Court rejected a proffered objective for a statute, concluding that the argument was "belied . . . by the provisions of the statute, which are both under- and over-inclusive."51 Moreover, if a statute can be constricted in the face of plain language and clear congressional intent, why should courts refuse to expand a statute to eliminate undercoverage?52 Though indubitably we must strive to avoid declaring a statute infirm, it is no less an invasion of the legislature's province to undertake to rewrite a law in accordance with one's view of a proper objective in the field. And though we may feel that what Congress did is unwise or even absurd, we may not "ignore the ordinary meaning of plain language."53

Judge Leventhal's chosen approach, furthermore, bypasses the equal protection problem only through a direct confrontation with the issue of congressional power to control the content of communications that it has had a part in financing, an issue this court has steered clear of on at least two occasions.54 And while I do not reach it under my view of this case,55 I think it much more difficult than the dissenters apparently do.56 The objectivity and balance requirement is justified, according to the dissents, by the exigency of assuring against governmental pressure on CPB to fund programs espousing partisan views.57 Though legitimate fears of governmental propagandizing might justify restrictions On the Government or on CPB to safeguard against exertions of that sort and there are quite a few such restrictions in the Public Broadcasting Act58 it might not so easily validate rules affecting The broadcaster's editorial decisions. Provisions calculated to stop governmental or CPB officials themselves from trying to influence private broadcasters would not only combat the real problem more squarely, but also less intrusively on First Amendment rights,59 than would those that order broadcasters to air only approvable programs.

Even if experience should prove that such restraints could not stop all governmental attempts to dominate CPB funding decisions or CPB efforts to influence editorial decisions, the fairness doctrine which applies to public broadcasters60 and perhaps also the First Amendment itself61 might assure the presentation of points of view conflicting with those officially coerced. This manner of dealing with the spectre of official influence advancing an argument for the other side instead of banning all viewpoints save those hewing to the middle of the road might not only avoid unnecessary censorship of the noncommercial broadcaster when his onesided program truly reflects his own ideas, but simultaneously might promote the First Amendment policy of encouraging "uninhibited, robust, and wide open" debate on public issues.62 Preoccupation with the mischief feared should not be pe