Id. at 506, 507. Although the Court felt the private corporation could entirely "close the sidewalk" to the public, Marsh v. Alabama, supra at 505 n. 2, the corporation could not "discriminate" against certain religious views once it had generally opened the sidewalk up to the public. Id. at 507.

Many other cases have followed the doctrine of Marsh v. Alabama, holding that in certain circumstances private property "may, at least for First Amendment purposes, be treated as though it were publicly held." Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 316 (1968). See, e.g., Tanner v. Lloyd Corp., 308 F. Supp. 128 (D. Ore. 1970); Hillside Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash. 1969); In re Lane, 457 P. 2d 561 (Cal. 1969); In re Hoffman, 434 P. 2d 353 (Cal. 1967): Schwartz-Torrance Inv. Corp. v. Bakery & Con. Wkers. U., 394 P. 2d 921 (Cal. 1964); Amalgamated Cloth. Wkrs. v. Wonderland Shop. Ctr.. 122 N.W. 785 (Mich. 1963) (affirmance by equally divided court). For other cases in which the court found the existence of a "public forum” for communication of views, see, e.g., Tinker v. Des Moines School Dist., 393 U.S. 503 (1969) (public school); Wolin v. Port of New York Authority, 392 F. 2d 83 (2d Cir. 1968) (bus terminal); Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969) (public high school newspaper); Kissinger v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y. 1967) (public subway walls); Wirta v. Alameda-Contra Costa Transit District, 343 P. 2d 982 (Cal. 1967) (public busses); Danskin v. San Diego Unified School Dist., 171 P. 2d 885 (1946) (public school buildings); People v. St. Clair, 56 Misc. 2d 326, 288 N.Y.S. 2d 388 (Crim. Ct. 1968) (public subway platform).

In sum, these cases all stand for the proposition that where property, publicly or privately owned, is "opened up" for general use by the public, whether or not that use directly involves speech activities, then the facility cannot be closed to speech unless its exercise directly and substantially interferes with the facility's primary use for example, as a shopping center, bus station, railway terminal, subway, or school.

In the case before us involving WTOP-AM's rejection of BEM's advertisements, there seems little question that the frequency controlled by WTOP-AM is a "forum" for the communication of ideas. Indeed, that appears to be its exclusive purpose, whether those ideas be political, commercial or entertainment. And there is also no question that WTOP-AM has "opened up" the use of that frequency to the general public by making commercial advertising time available to the general public on a first-come, pay-as-you-go basis. See, e.g., Kissinger v. New York City Transit Authority, supra; Zucker v. Panitz, supra: Hillside Community Church, Inc. v. City of Tacoma, supra; and Wirta v. Alameda-Contra Costa Transit District, supra, all cases in which the owner of private or public property opened up his facility for the display of private commercial advertisements. In each case, the court found that a "public forum" for the communication of views was present. Whether or not WTOP-AM's opening of its forum for the communication of private commercial views constitutes an "opening up" for non-commercial (but also paid) views, will be considered below.

B. "Reasonable" Use of Forum

Every licensee must retain some power to reject programming—if only when it fails to meet certain quality standards, or violates federal law (lotteries, obscenity, etc.). But just as clearly the licensee, as a trustee for the public, does not possess unlimited power to monopolize the use of the airwaves. The essential question, therefore, is whether the use of advertising "space" or the broadcast spectrum by BEM is “reasonable” and consistent with other uses of that spectrum by the licensee.

The Commission and the courts must begin to draw guidelines for "reasonable" access to the broadcast frequencies, seeking to ensure that the electronic media of twentieth century communication are as open to the public as the soap boxes, public parks, and town hall meetings of the last century. Cf. Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 21-32. On the one hand, “[t]he rights of free speech . . . do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." Cox v. Louisiana, 379 U.S. 536, 554 (1964) (Goldberg, J.). But on the other hand, "the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment." Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 390 (1969).

The FCC and the courts have already begun to develop variants of the access doctrines latent in Red Lion. The fairness, personal attack, and equal time doctrines all curtail the licensee's discretion to reject programming. So does the requirement that the licensee ascertain community needs and interests and devote "some significant proportion of [its] . . . programming" to them. City of Camden, 18 F.C.C. 2d 412, 421 (1969). In light of the "state action" discussion above there may well be limits on the ability of a licensee to censor out of a prepared program, during broadcast, the remarks of an invited guest. See Letter to Cong. Richard L. Ottinger [Judy Collins incident], FCC Public Notice No. 47876, April 20, 1970 (dissenting opinion). In the case here before us, BEM is willing to pay the "going commercial rate" to gain access to WTOP-AM's facilities. Therefore, unlike fairness doctrine cases, a requirement of access imposed on WTOP-AM with respect to this anti-war announcement would impose no financial burden on the station. This is an extremely important point. Compare Letter to Mr. Donald A. Jelinek, FCC 70-595, (June 4, 1970) (dissenting opinion at pp. 21-22) (free public service announcements would impose no financial burden on licensee). So long as the party seeking access to a broadcast facility is willing to pay the going rate, we need not face the equal protection question posed by persons financially unable to pay for their "privilege" of electronic speech. The state and federal courts have, during the past few years, addressed precisely the same question before this Commission-although in the somewhat different context of spacial forums (parks, streets, train terminals, etc.), and not electronic forums. In every case involving persons who sought only to use the advertising facilities provided to commercial advertisers, the courts decisively ruled that the owner of

the property in question could not admit commercial advertisements and exclude political ones.

The germinal case in this area was decided by the California Supreme Court in 1967. In Wirta v. Alameda-Contra Costa Transit Dist., 434 P. 2d 982 (Cal. 1967), the members of Women for Peace brought suit against a public Transit District, operating the municipal bus service, and a private advertising company which serviced the Transit District's buses. The buses contained advertising space above the passengers' seats, and the Transit District leased that space to the advertising company which, in turn, re-leased it to private commerdial advertisers. (The parallel with FCC licensing of public property to private licensees who re-lease that frequency space to commercial advertisers is obvious.) In 1964, Women for Peace requested that it be allowed to place the following advertisement in defendants' coaches, at the standard rate:

"Mankind must put an end to war or war will put an end to mankind."

President John F. Kennedy.

Write to President Johnson: Negotiate Vietnam.

Women for Peace
P. O. Box 944, Berkeley."

Defendants refused to accept the advertisement, on the ground that the advertisement conflicted with the District's advertising policy:

The... District . . . accepts only commercial advertising for the sale of goods and services, except that political advertising will be accepted in connection with and at the time of a duly called election being held within the boundarys of the District, and further subject to the conditions that . . . space be made equally available to opposing candidates or sides of a ballot measure. The advertisement in question was rejected on the ground that "controversial subjects" were not consistent with this policy. (Again, the parallels with WTOP-AM's policy, as well as the Commission's equal time doctrine, are obvious.)

The court first asserted that the content of the advertisement was "undeniably protected by the First Amendment." despite its status as a paid message. 434 P. 2d at 984. It then observed that the advertisements in question could not conceivably interfere with the District's primary function of providing transportation. 434 P. 2d at 985. And the court then defined the problem as one "in which a governmental agency [the parallel to WTOP-AM has been made in the previous section] has refused to accept an advertisement expressing ideas admittedly protected by the First Amendment for display in a forum which the agency has deemed suitable for the expression of ideas through the medium of paid advertisements.“ 434 P. 2d at 985. The court concluded :

[D]efendants, having opened a forum for the expression of ideas by providing facilities for advertisements on its buses, cannot for reasons of administrative convenience decline to accept advertisements expressing opinions and beliefs within the ambit of First Amendment protection.

434 P. 2d at 985 (emphasis supplied). The "vice" of the district's censorship lay in choosing "between classes of ideas . . ., sanctioning the expression of only those selected, and banning all others." This the court described as "a most pervasive form of censorship." 434 P. 2d at 986.

The court also expressed itself with absolute bluntness on the perversity of elevating commercial speech to a status more important than political speech. "[I]n the totality of man's communicable knowledge," the court said, "that which bears no relationship to material value preponderates." 434 P. 2d at 986. The court observed:

A cigarette company is permitted to advertise the desirability of smoking its brand, but a cancer society is not entitled to caution by advertisements that cigarette smoking is injurious to health. A theater may advertise a motion picture that portrays sex and violence, but the Legion of Decency has no right to post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement of existing air pollution statutes.

434 P. 2d at 986-87.

Finally, the court relied upon a companion case, In re Hoffman, 434 P. 2d 353 (Cal. 1967), to state the controlling issue before it: "the test is not whether petitioners' use of the station was a railway use, but whether it interfered with that use." 434 P. 2d at 356 (emphasis supplied). Because the bus company was unable to show that presentation of political commercials interferred with any legitimate function of its transportation function, its refusal to accept political advertising was impermissible.

The analogies to WTOP-AM are almost exact. WTOP-AM is, for purposes of the First Amendment, an "agent" of the state-just as was the private advertising agency leasing "public property" from the transit authority. WTOP-AM rejected BEM's advertisement, also on the ground that it accepted only "commercial" advertising. There was no evidence that acceptance of the advertisement would "interfere" with WTOP-AM's normal function of presenting advertising space to sponsors and entertainment programming to listeners. One must conclude, therefore, that WTOP-AM cannot reject BEM's advertisements any more than the transit authority could reject those of the Women for Peace.

In Kissinger v. New York City Transit Authority, 274 F. Supp. 328 (S.D.N.Y. 1967), the court reached precisely the same result as in Wirta, and for identical reasons. There too an anti-war group wanted to place an advertisement on the walls of the subway; a private advertising corporation, operating under contract to the city, refused, due to the "controversial" nature of the views expressed.

The Transit Authority made two arguments. First, they argued that they only accepted commercial advertisements, public service announcements, and political advertising during elections-and that acceptance of these was not a generalized waiver to include political advertisements. The Court quickly rejected this argument, stating that the Authority and the Advertising Company "cannot accept some posters and refuse the plaintiffs' for reasons that conflict with the First Amendment guarantee of the right to freedom of speech." 274 F. Supp. at 442. Second, the Transit Authority argued that the posters were inflammatory, would be displayed to a "captive audience," and might cause disorder and irritation. Again the court swiftly disposed of this argument. Citing Terminiello v. City of Chicago, 337 U.Š. 1, 4 (1949), the court said:

.

is to invite dispute

Speech is often have profound unsettling effects. protected against censorship .

[A] function of free speech provocative and challenging. It may That is why freedom of speech is The parallel with the case involving WTOP-AM again is obvious. In Zucker r. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969), a group of high school students brought an action for declaratory and injunctive relief to compel a high school newspaper to accept a paid advertisement in opposition to the Vietnam war. The defendant school authority argued that the paper's policy was to accept "only purely commercial advertising" and to reject all advertising (even in support of student government nominees) which was politically oriented. Citing Wirta, the court ruled in the plaintiff's favor:

Here, the school paper appears to have been open to free expression of ideas in the news and editorial columns as well as in letters to the editor. It is patently unfair in light of the free speech doctrine to close to the students the forum which they deem effective to present their ideas.

299 F. Supp. at 105. The court could see no disruption of the newspaper's normal function that could conceivably result from the antiwar advertisements.

Finally, in Hillside Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash. 1969), a church group sought to place "end the war in Vietnam" posters on transit buses operated by the city of Takoma, Washington, where advertising space was under the control of a private lessee advertising agency. Citing Wirta and Kissinger, the court ruled that "[o]nce a municipality or public body enters the field of advertising, therefore, the law requires that a showing of a 'clear and present' danger must be made in order to limit such advertising without conflicting with guarantees of freedom of speech under the First and Fourteenth Amendments." 455 P. 2d at 354. The court found the rejection to be "clear acts of censorship" in violation of plaintiff's first amendment rights.

The licensee has argued that subjects of the type contained in the BEM advertisements "require a more in-depth analysis than can be provided in a 10, 20, 30, or 60 second announcement." It seeks to use this pathetically weak justification to overcome the Supreme Court's "clear and present danger" test, see Hillside, supra, and the First Amendment to the Constitution. This reasoning must be rejected out of hand. Once WTOP-AM has opened its forum up to 10, 20, 30, and 60 second commercial spots, it cannot withhold similar time periods from persons seeking to fill them with political speech. It borders on arrogance for WTOP-AM to assert that $4-5,000 automobiles which pollute the air and endanger human life may be sold to an unsuspecting public in 30 second spot announcements, but that the simple message, "End the War in Vietnam," cannot be communicated in a short announcement. Neither the government, nor a licensee, must be permitted to arrogate to itself the totalitarian role of deciding, for the people wishing to speak, how they will be permitted to present their thoughts. Similarly harsh and unjustifiable restrictions have been struck down in many other related cases, and I need not detail their reasoning here. See, e.g., Wolen v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968); Tanner v. Lloyd Corp., 308 F. Supp. 128 (D.