League of Women Voters of California, and Pacifica Foundation v. Federal Communications Commission

Under 28 U.S.C. § 1291 , the courts of appeals have jurisdiction over appeals from all final decisions of the district courts “except where a direct review may be had in the Supreme Court.” Direct review is available under 28 U.S.C. § 1252 when a district court holds a federal statute unconstitutional in a civil proceeding to which the Government is a party. The second paragraph of section 1252 provides:

The instant case requires us to consider the extent of the Supreme Court’s mandatory jurisdiction under the second paragraph of section 1252.

I

This case began with a constitutional challenge to a portion of the Public Broadcasting Act of 1967, 47 U.S.C. §§ 390 et seq. In August 1982, the district court held that the statutory prohibition against editorializing by noncommercial broadcasters receiving funds from the Corporation for Public Broadcasting, 47 U.S.C. § 399 , violated the First Amendment to the United States Constitution. League of Women Voters of California v. Federal Communications Commission, 547 F.Supp. 379 (C.D.Cal.1982).

The Federal Communications Commission (“FCC”) timely filed a notice of appeal from the holding of unconstitutionality directly to the Supreme…