brought on by the Attorney General's decision before challenging the statute, the FCC concluded.

On May 29, 1981, the plaintiffs filed their memorandum regarding the jurisdictional issues. With respect to adversity of the parties, the plaintiffs agreed with the FCC that the decision of the Justice Department to defend the statute rendered the claim moot. With respect to ripeness, the plaintiffs essentially reiterated the arguments made prevously in their February 13, 1980 opposition to the Senate's motion to dismiss. (See pages 247, supra for a discussion of the plaintiffs' earlier opposition.) In sum, the plaintiffs argued that: (1) they did not have to violate a statute to challenge its constitutionality; the controversy was ripe because their rights were presently being injured by the statute's operation; (2) Pacifica would broadcast editorials if it were not prohibited from doing so by section 399(a); and (3) plaintiffs Waxman and the League of Women Voters, as listeners and viewers of noncommercial broadcasting stations, had no other available means to challenge the constitutionality of section 399(a).

Also on May 29, 1981, the Senate filed a motion to withdraw from the case as amicus curiae in light of the Executive branch's decision to defend the case. After reviewing the reasons for the Senate's original participation the accompanying memorandum concluded:

The Senate's primary concern in appearing as amicus curiae in this case was to affirm the principle that the Executive Branch cannot deny the validity of Acts of Congress. This Court's ruling and the reconsidered action of the Department of Justice have reaffirmed that principle with renewed vigor. Now that the Department will defend the statute, the ordinary principles of separation of powers, absent special circumstances not present here, call for the Senate to leave that defense to the Executive, whose function it is to enforce and defend the laws. [Memorandum of Senate in Support of Motion to Withdraw, May 29, 1981, at 4]

On June 8, 1981, Judge Lucas heard arguments on the question of jurisdiction and took the matter under advisement. He granted the motion of the Senate to withdraw from the case.

On June 18, 1981, Judge Lucas issued an order vacating his March 11, 1980 order dismissing the action. He found that there were now adverse parties to the case since the Justice Department and the FCC had decided to defend and enforce section 399(a) and the case was ripe for adjudication since the Executive branch's decision to enforce the statute had eliminated any uncertainty about the existence of an actual case or controversy and had subjected plaintiff Pacifica to a realistic threat of severe administative and criminal penalties should it violate the statute.

On June 26, 1981, the plaintiffs filed a motion in the Court of Appeals for the Ninth Circuit asking the court to dismiss their earlier appeal without prejudice. The plaintiffs noted in their motion that since Judge Lucas had now held that the case was justiciable there was no need to pursue the appeal. On July 14, 1981, the circuit

court granted the plaintiffs' unopposed motion and dismissed the appeal.

On July 13, 1981, the plaintiffs filed a supplemental memorandum of points and authorities in support of their motion for summary judgment on the merits in the district court. (The plaintiffs' motion for summary judgment was originally filed on September 24, 1979 but was taken off the court's calendar shortly after the Senate entered the case as amicus and moved to dismiss the action. For a discussion of the original motion and accompanying memorandum of the plaintiffs, see page 244, supra.) The new memorandum reiterated the arguments initially raised by the plaintiffs two years earlier and asserted that subsequent decisions by the Supreme Court had underscored the "importance of the First Amendment rights at stake in this case and the exacting scrutiny to which content-based restrictions of speech are subject." [Supplemental Memorandum of Points and Authorities in Support of Motion for Summary Judgment, July 13, 1981, at 2] The plaintiffs also elaborated on their contention that section 399(a) violated the equal protection guarantee of the Due Process Clause of the Fifth Amendment, arguing that there was "no principled basis for distinguishing between commercial and noncommercial broadcasters" since "[a]ll broadcasters, commercial and noncommercial alike, face similar dangers of improper political pressures." [Id. at 7]

On July 22, 1981, the Justice Department, on behalf of the defendant FCC, filed a memorandum in opposition to the plaintiffs' motion for summary judgment. The memorandum argued, inter alia, that: (1) section 399(a) was not unconstitutionally overbroad since it could, consistent with the will of Congress, be construed so that its reach was "clearly and precisely" limited to conduct Congress was permitted to regulate; (2) section 399(a) could be construed, in line with Congressional intent (as revealed in the relevant legislative history), to apply to government funded noncommercial educational broadcasters such as plaintiff Pacifica, even if it was determined that the section could not be constitutionally applied to noncommercial educational broadcasters who did not receive government funding; (3) review of the regulation of broadcasting involved the application of "special" First Amendment standards reflecting the special characteristics of the broadcasting medium as opposed to other media (i.e. limited number of frequencies available, the pervasive presence of the broadcast medium in the lives of Americans, the medium's accessibility to children, etc.); (4) section 399(a) served a compelling government interest that noncommercial educational broadcasters receiving government funding not be coerced because of that funding to broadcast editorials favorable to the government and that the funding not interfere with the balanced presentation of opinion on those stations; and (5) section 399(a)'s limited application to noncommercial educational broadcasters receiving federal funds did not violate the equal protection mandate of the Fifth Amendment because it was carefully tailored to the compelling government interest being served.

On July 27, 1981, the plaintiffs filed a reply memorandum in support of their motion for summary judgment. In their view, a court could not construe section 399(a) in any fashion so that it did not violate the First Amendment. According to the plaintiffs, the de

fendant's proposed narrowing of the statute to reach only government funded stations ignored the plain meaning of section 399(a), and would, in any event, itself be unconstitutionally vague and dependent on a case-by-case interpretation. There were, said the plaintiffs, no "special characteristics" of the noncommercial broadcast medium which would justify banning protected First Amendment editorial speech, nor was there any "compelling government interest" which would be served by such a ban. Finally, the plaintiffs asserted again that section 399(a) violated equal protection requirements because it was a "content-based prohibition" grounded not on an individualized inquiry but on a presumption of noncommercial broadcasting vulnerability to government influence.

On August 3, 1981, a hearing was held on the plaintiffs' motion for summary judgment. At that time a new briefing schedule was arranged to respond to the fact that section 399(a) had been amended by Congress three days earlier to prohibit all noncommercial broadcasters from endorsing or opposing candidates for elective office, and denying the right to editorialize to any noncommercial broadcasters who received government funding from the Corporation for Public Broadcasting.

On August 31, 1981, the plaintiffs filed a second memorandum in support of their motion for summary judgment, arguing that the new section was still unconstitutional on First and Fifth Amendment grounds.

Status-The case is pending in the U.S. District Court for the Central District of California, although the Senate's participation has been concluded.

The complete text of the March 11, 1980 order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981.

The complete text of the June 18, 1981 order of the district court is printed in the "Decisions" section of this report at page 385.

X. Attempts To Obtain Congressional Documents and Testimony Through Use of the Subpena

1. Civil Proceedings:

United States v. Eilberg

[See page 105.]

In Re: IBP Confidential Business Documents Litigation

M.D.L. No. 428 (N.D. Iowa)

On December 4, 1980, Nicholas Wultich, a staff investigator for the Committee on Small Business of the U.S. House of Representatives; Charles Chatman, former counsel to the Subcommittee on Oversight of the Committee on Interstate and Foreign Commerce of the House; and John M. Fitzgibbons, former Special Counsel to the Small Business Committee on Interstate and Foreign Commerce were each served with nearly identical subpoenas duces tecum issued by the U.S. District Court for the District of Columbia. The subpoenas called for the staff members to appear and testify at a deposition and to bring with them all documents in their possession or custody relating in any manner to Iowa Beef Proces

sors, Inc. ("IBP") or Hughes A. Bagley.1 The subpoenas were issued upon the application of counsel for IBP and called for the appearance of the deponents at a Washington, D.C. law office on December 15 and 16, 1980. (The subpoenas were issued as part of a civil suit being litigated in the U.S. District Court for the District of Iowa.)

On December 12, 1980, the staff members submitted a motion in the Iowa court to stay enforcement of the subpoenas until February 1, 1981. They asserted that in order to adequately evaluate the constitutional issues raised by the subpoenas-involving the independence of Congress and the ability of its committees to fulfill their constitutional functions-a stay was essential.

Messrs. Wultich, Chatman and Fitzgibbons stated that pursuant to Rule 45(d) of the Federal Rules of Civil Procedure they had served IBP with a written objection to the inspection or copying of any documents covered by the subpoenas. Under that rule, said the deponents, IBP was not entitled to inspect or copy the materials except pursuant to a court order. The staff members claimed that such inspection and copying were outside the scope of permissible discovery because the materials were the direct product of their employment with the House of Representatives. They contended that both the documentary material and their personal knowledge and recollections of IBP and Mr. Bagley were privileged from discovery by the Speech or Debate Clause 2 and the policy of legislative independence:

The [Speech or Debate] clause has been read "broadly to effectuate its purposes." Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975). It has been read to afford absolute protection from questioning legislative aides such as those subpoenaed here on matters within the legislative sphere, and "the Clause provides protection against civil as well as criminal actions, and against actions brought by private individuals as well as those initiated by the Executive Branch." Eastland, supra, at 502503. See also Gravel v. United States, 408 U.S. 606 (1972), Doe v. McMillan, 412 U.S. 306 (1973).

Committee investigatory activity is clearly within the proper sphere of the Article I functions devolved on Congress and is a necessary function of the Congress, McGrain v. Daugherty, 273 U.S. 135 (1927), and the gathering of information for legislative purposes is protected by the Speech or Debate Clause. Eastland v. United States Servicemen's Fund, supra. [Congressional Deponents Motion for Temporary Stay of Subpoena for Deposition, December 12, 1980, at 3]

The staff members concluded that the subpoenas raised serious questions regarding the permissible scope of judicially compelled inquiry into the internal workings of Congress. Preparation for

1 Mr. Bagley was a former vice-president of IBP who allegedly transferred confidential documents belonging to IBP to Congressional investigators in 1975.

2 The Speech or Debate Clause of the United States Constitution provides that "for any Speech or Debate in either House [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1]

adequately briefing these constitutional questions, they said, was hampered by the expiration of the 96th Congress and the formation of the 97th, as well as by House Resolution 722 which required internal notification and consultative procedures prior to complying with the subpoenas.

On December 12, 1980, the U.S. District Court for the Northern District of Iowa ordered a stay of the depositions. The deponents and the parties to the underlying litigation were required to submit memoranda on the legality of the subpoenas by February 2, 1981.

On February 2, 1981, the staff members submitted a motion to quash and an accompanying memorandum. In the memorandum, the deponents argued, first, that the Speech or Debate Clause protected aides, as well as Members, if the conduct of the aide would be immune from scrutiny if performed by the Member. Second, the staff members argued that the prohibition against questioning legislative acts was absolute and could not be overcome, even by a showing of compelling need. Third, they argued that the Speech or Debate Clause had been held to protect information gathering activities by Members and aides because such activity was essential to legislating.

Turning to the facts of the present case, the staff members claimed that the subpoenas should be quashed because all three staff members had been engaged in sensitive information gathering activities; their knowledge of IBP and Hughes A. Bagley was exclusively a product of their performance of legislative duties assigned to them by Members of Congress. Any documents in their possession, said the staff members, were papers of the House and its committees.

Finally, the staff members asserted that the subpoenas were an attempt by IBP to use the process of the court to inquire into the official, non-public files and functions of Congress. They maintained that there appeared to be no conceivable question which IBP could ask them which would fall outside the legislative sphere, since the staff members sole and exclusive contact with IBP was through the committees' investigations.

On February 18, 1981, IBP filed a memorandum in opposition to the motion to quash. In this memorandum IBP outlined why it deemed the requested depositions important and why the Speech or Debate Clause would not preclude the depositions from being held. First, IBP asserted that in July 1979, Mr. Bagley testified before a subcommittee of the House Small Business Committee concerning events which occurred during his employment with IBP during the early 1970's. In August 1979, IBP sent a letter to Rep. Neal Smith, Chairman of the Small Business Committee, in which it informed him of its belief that portions of Mr. Bagley's testimony were not true. In October 1979, Mr. Bagley filed suit against IBP, claiming that IPB's letter to Chairman Smith was defamatory. IBP then counterclaimed, asserting that Mr. Bagley had defamed IBP before the subcommittee. The depositions, argued IBP, were essential to the defamation litigation because the staff members on several occasions met with Mr. Bagley to discuss his anticipated testimony before the subcommittee, and to receive from him copies of documents which he took from IBP. IBP concluded its discussion of