18 Rad.
Reg. 2d (P & F) 1031
Hon.
Richard L. Ottinger House of Representatives, Washington, D. C.
March 24, 1970
JUDGES: DISSENTING STATEMENT OF COMMISSIONER
KENNETH A. COX. DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
OPINION:
This is in reply to your letter of February 16, 1970
enclosing a letter to Mr. Leonard Goldenson, President of American Broadcasting
Company, concerning the appearance of Miss Judy Collins on the Dick Cavett Show
presented over ABC on February 4, and requesting my comments thereon.
Miss Collins complained of the deletion by ABC of certain
remarks made by her at the time of her appearance on the Dick Cavett Show on
February 4, and stated that, in her view, the action of the network in deleting
these remarks from the televised show was a violation of her right of free
speech. The matter deleted reflected "[her] opinions and activity both as
a witness and observer of the trial." (Letter of Miss Collins to FCC,
dated February 6, 1970.)
I agree that the matter raised is a significant one,
and I have therefore given it most serious consideration. I have concluded that
the ruling made by the staff in its letter of February 25, 1970 to Miss Collins
is correct, and would like to amplify the reasons for the ruling.
Except for broadcasts by legally qualified candidates
for public office, where the licensee is enjoined from censoring, the licensee
is responsible for all material broadcast over his facilities, and thus can and
does edit and select the material to be presented. Each licensee makes
thousands of programming decisions a year - that some material
"works", some does not fit in a particular program, etc.
That the material in question involves discussion of
a controversial issue does not take it outside the scope of the licensee's
editing and selection process. The licensee must devote a reasonable amount of
time to the discussion of controversial issues of public importance, and cannot
exclude from the airwaves views with which he disagrees. Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 [16 RR 2d 2029] (1969); Report on
Editorializing by Broadcast licensees, 13 FCC 1246 (1949). As the
Supreme Court stated in Red Lion, the licensee must ". . . conduct himself
as a proxy or fiduciary with obligations to present those views and voices
which are representative of his community and which would otherwise, by
necessity, be barred from the airways." But he is not a common carrier
(see Section 3(h) of the Communications Act) and can exercise judgment as to
appropriate spokesmen, time, or manner of presentation of the issue. (In the
case of a personal attack or political editorial, the licensee must act in
accordance with the requirements of the Commission's Rules and policies - see §
§ 73.123, 73.300, 73.598 and 73.679.)
This last point is, of course, crucial. A person or
group cannot demand that as a matter of right its message be presented over the
station's facilities. McIntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597
(3rd Cir. 1945). The licensee does not have to present programming material
which he believes either will not serve the needs or interests of his listeners
or will not do so as well as other programming material. Report and Statement
of Policy Re: Programming Inquiry, 20 Pike & Fischer, Radio Regulations
1902, 25 F. R. 7291. He is thus constantly called upon to make choices between
types of programming, and then, within each type, to choose the format and
person to appear. If the licensee were deemed to be a common carrier, having to
present any matter brought to him which was not obscene, etc., the result would
be not only chaotic but a wholly different broadcasting system which Congress
has not chosen to adopt.
While the licensee has great discretion, that
discretion is, of course, limited by the necessity to act under policies
consistent with the public interest standards. A licensee could not reject a
presentation of a view on the basis of a policy that he never presented views
with which he disagreed, or views of women, or blacks, or red-headed men. We
would thus examine into complaints giving significant extrinsic indication of
an arbitrary policy inconsistent with the public interest "in the larger
and more effective use of radio" (Section 303(g) of the Act). It is,
however, not enough simply to state that the licensee has edited a particular
presentation and thus deprived one of "free speech." As stated, such
editing occurs, and must occur, thousands of times a year.
The policy followed by the Commission in this area
was set forth in the Commission's Hunger in America ruling, a copy of which is
enclosed. While this policy was formulated prior to my taking office, I do
subscribe to it, as shown by the enclosed letter to Mrs.J. R. Paul. The latter
ruling was issued following the receipt by the Commission of many inquiries and
comments after the address by Vice President Agnew on November 13, 1969.
The foregoing are, I believe, the sound principles to
be applied to this case. Miss Collins' complaint does not contain any extrinsic
indication of a licensee policy inconsistent with the public interest. It
simply states that the licensee edited her remarks, contrary to her claimed
right of free speech. This could be advanced in every case of editing, and is
not a proper basis for Commission intervention in this sensitive area.
As a further matter on this issue whether ABC is
acting under an arbitrary policy in this instance, the Commission has been
informed that ABC's decision to delete the remarks of Miss Collins stemmed from
its concern over televising material which might be inappropriate in light of
the then pending trial. This general subject - the impact of the broadcast of
material concerning active litigation on the rights of parties in such
litigation to a fair and unprejudiced trial - has been the subject of
continuing discussion and debate on a national basis for some period of time.
This question has not been definitively resolved, but a licensee such as ABC
may clearly adopt a policy in this field, and then make good faith applications
of that policy. We take that to be the case here, since there is no basis for any
contrary assumption in this case, where Miss Collins was a witness at the
trial. The matter is not whether the Commission would reach the same judgment,
or whether it was a good or sound one, but only as stated that it be made in
good faith. Here again, the above principles are just as applicable, and
Commission intervention is proper, I believe, only where there is independent,
extrinsic evidence of bad faith or policies inconsistent with the public
interest.
I am sorry to have gone on at such length. But, as I
said at the outset, I believe that you have raised a most fundamental issue.
Finally, I want to stress that the principles set out in Hunger in America,
Letter to Mrs. Paul, and here do not vary with the issue on whether the liberal
or conservative side has been presented or deleted. On the contrary, the whole
thrust of these principles is to keep the Government licensing agency from
improperly interfering with broadcast journalism or treatment of the issues,
whatever their nature may be. In my views, we simply cannot look over the
broadcaster's shoulder as he deals with the issues of the day, and then expect
the robust, wide-open debate sought by the First Amendment.
I hope that the foregoing is helpful to you in
understanding what I believe to be the Commission's role in this most important
area.
Commissioners Bartley, Robert E. Lee, H. Rex Lee, and
Wells join in this letter; Commissioner Cox disagrees, and has submitted his
separate views in the attached opinion; Commissioner Johnson was absent at the
discussion of this letter, and will, therefore, submit a separate response.
Sincerely,
Dean Burch
Chairman
DISSENTBY: KENNETH A. COX; NICHOLAS JOHNSON
DISSENT:
DISSENTING
STATEMENT OF COMMISSIONER KENNETH A. COX
I agree with almost everything set forth in this
letter - except the result. Perhaps Miss Collins has not stated her objection
as clearly as she should, but I think she is saying that her point of view on
an important public matter has not been presented on the ABC network and that
she believes the public should be exposed to that viewpoint.
I agree that a broadcast licensee is responsible for
all material presented over his facilities, but believe that he must discharge
that obligation responsibly.
I agree that a licensee must devote a reasonable
amount of time to controversial issues of public importance and cannot exclude
views with which he disagrees - but must point out that ABC has done precisely
the latter.
I agree that a licensee is not a common carrier.
However, I think that permits him to exclude individuals or programs which he
thinks are not sufficiently in the public interest, but does not in itself
justify deletion of words spoken by someone whom the licensee has invited to
appear.
I agree that, except in cases covered by our personal
attack rules, a licensee can exercise his judgment as to the appropriate
spokesman on an issue - but in this case we have not been advised that ABC
chose to put on other speakers in place of Miss Collins, and I think, again,
that different considerations apply where, as here, the licensee found her a
proper person to discuss issues over its facilities.
And I agree that licensees must edit the raw material
from which they put together news and public affairs programs, and must be
permitted to do so free of government control. This is the essence of our
Hunger in America ruling. There is always more information and more film
footage than can be crammed into the available air time, and the selection of
the precise matter to be broadcast must be left to the uncoerced judgment of
the journalists concerned with the process. But there is a difference between
editing and suppression. Here there was no problem of selecting from among a
mass of material to develop a program to fit a period too short to accommodate
all that was available. Instead, this was a program which was taped live for
broadcast later the same day. There was no need to cut and paste in order to
reduce the available materials to the allotted time period. The program was
recorded with Miss Collins' remarks included. They were then deleted, not to
edit the show for length or to make time available for other more worth-while
matter, but simply because ABC did not want Miss Collins' words to reach the American
public.
I recognize that even in these circumstances there
can be justification for deletion of words spoken during a broadcast. However,
if a licensee's action in such a case is challenged, the only way to resolve
the matter is to find out what was said and to ask the licensee the reason for
deleting it. That would have required the investigation Miss Collins requested,
but as far as I can determine the Commission has sought no information from
anyone. Apparently all we have before us is Miss Collins' original letter, a
letter from Congressman Richard L. Ottinger enclosing a copy of his letter to
Leonard Goldenson, President of ABC, and a communication (evidently
unsolicited) setting forth a statement which Dick Cavett made on his program
five days after the broadcast here in dispute. The majority's letter recognizes
that this is a significant matter, but they have made no effort to determine
the basic facts.
The statement broadcast by Mr. Cavett indicated that
ABC deleted Miss Collins' remarks because it believed they "could
prejudice the possibility of the parties to receive a fair trial." He went
on to say that, in general, "ABC's policy is based on the view that
continued televising of possibly prejudicial comments on active litigation
could threaten the American legal process itself." These are important
concerns, but one wonders if ABC is not simply stating a "policy"
which sounds appealing but which it does not follow. This seems to be
Congressman Ottinger's view in his letter to Mr. Goldenson, where he said:
"The transparency of this
rationale is so obvious that it raises serious questions regarding the level at
which broadcast policy is made at ABC. Do you really believe that after the
months of radio, television, newspaper and magazine coverage of the Chicago
conspiracy trial, Miss Collins' remarks could prejudice the outcome? If you
really believe that, you must have either a totally naive conception of the
American judicial process or a grossly exaggerated view of television's ability
to influence the outcome of a court proceeding."
Without knowing what Miss Collins said, and without
more information as to ABC's "policy" and its application in other
cases, I am inclined to agree with Congressman Ottinger. While I have no
specific recollection of ABC's handling of these matters as distinguished from
the media generally, it seems likely that the network has broadcast so much
news and comment about the Chicago trial, the charges growing out of the Mylai
affair, the trials of Sirhan Sirhan, James Earl Ray, Charles Manson, Rap Brown,
and others that the sudden claim that Miss Collins' remarks would shake the
judicial system seems a little specious. If, indeed, ABC has no uniform policy
of refusing to broadcast comments about pending or prospective trials, then it
would appear likely that Miss Collins' remarks were deleted because someone who
reviewed the program didn't agree with her - and the majority specifically says
this is not a valid ground for excluding matter from the air.
ABC staff personnel selected Miss Collins to appear
on the program in question. They decided that she was not only to sing, but was
also to participate in discussion with Mr. Cavett and other guests. And they
agreed that she was to speak about the trial in Chicago. This is a common
pattern - which may or may not be entirely sound - in most shows of this type
on television, whether of network, syndicated or local origin. Having gone this
far, I do not think ABC could claim that Miss Collins was seeking to force her
way onto the network in violation of Section 3(h) of the Communications Act -
and, indeed, so far as I know it has made no such claim. On these facts, I do
not think it could argue that it was engaged in a process of journalistic
editing - and, again, I don't believe that it has so contended. It is clear
that ABC's news and public affairs program personnel, whose independence it is
most important to protect, were not even involved in this incident. Nor is it
urged that Miss Collins' remarks were obscene, indecent or profane - grounds on
which language is often deleted from broadcast programs.
The majority's letter closes with the statement:
"We simply cannot look over the
broadcaster's shoulder as he deals with the issues of the day, and then expect
the robust, wide-open debate sought by the First Amendment."
Certainly the public got no "robust, wide-open
debate" here. It should be remembered that the Supreme Court, in the Red
Lion case, made it clear that licensee obstruction of such debate is quite as
bad as governmental interference would be. I think this is what we have here -
arbitrary action by a broadcast licensee resulting in less, not more,
discussion, with no clearly established basis in valid policy. I think we
should inquire further into this matter, with particular attention to
Congressman Ottinger's question as to whether a double standard is being
applied with respect to cases of this kind.
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
Folk singers often speak the purest and most direct
thoughts of the people. Therein lies their essential contribution to a free
society - and their power.
Andrew Fletcher, the Scott patriot, noted in 1704,
"I believe that if a man were permitted the right to write all the ballads
he need not care who should make the laws of a nation."
It is wholly understandable, therefore, that
politicians, businessmen and television executives should express fear at the
sight of guitars and those who strum them.
Peter Seeger, for example, was not permitted to sing
"The Big Muddy" - an obvious critical reference to the Vietnam war -
on one network program. Joan Baez's views of the selective service system were
blipped off the air. Now Judy Collins' observations on the Chicago Conspiracy
Trial have met a similar fate.
Judy Collins has complained. Needless to say, the FCC
provides her no relief.
What happened?
According to the evidence before us, and available in
newspaper accounts, Judy Collins was called to testify as a defense witness in
the "Chicago Conspiracy Trial" on January 22, 1970. The court refused
on that occasion to permit her to sing the antiwar protest song "Where
Have All the Flowers Gone?" * On February 4, 1970, Miss Collins was
invited to appear as a guest, both to sing and to converse, on ABC's "Dick
Cavett Show." She meet with the production staff at 3:00 p.m. According to
her letter to the FCC of February 6, 1970, the staff "decided" that
she "would discuss the Chicago Conspiracy Trial." The program was
pre-taped at 6: p.m. that evening, during which time Miss Collins reportedly
made comments "sharply critical" of the trial. (See N. Y. Times, Feb.
11, 1970, p. 95).
* In fairness to the FCC majority,
it should perhaps be recorded that, by contrast, it permitted Mason Williams to
appear in a formal hearing on July 23, 1969 to sing and strum "Cowboy
Buckaroo" and conclude:
Hey
I'm telling you the truth
I am like the entertainment
I grew up on
Williams, The Mason Williams FCC
Rapport (1970).
The program was broadcast later that night at 11:30
p.m. Without prior discussion with Miss Collins, ABC blipped out both audio and
video portions of the program containing Miss Collins' reportedly
"critical" remarks.
In her February 6, 1970, letter to the FCC, Miss
Collins asked the Commission to investigate the incident and obtain a
transcript of her comments and those portions which were deleted. Mr. William
Ray, Chief, Complaints and Compliance Division, responded to her letter
stating, in essence, that the Commission would take no action. In a letter to
the Hon. Richard L. Ottinger, Chairman Burch stated for a majority of
Commissioners' views similar to those of Mr. Ray. His primary position, as I
read it, is that the licensee is not a "common carrier," and can
therefore "exercise judgment as to appropriate spokesman, time, or manner
of presentation of the issue."
I disagree with the majority's treatment of this
highly complex and sensitive issue. I believe that it is long past time for us
to begin a general policy review of the existing judicial precedent, past
Commission decisions, and general communications and First Amendment policies
affecting cases like this. Obviously, the Commission's letter does not purport
to be such a review.
I do not believe that all corporate censorship issues
- such as the Judy Collins' incident before us - can be squeezed into the
fairness doctrine. The following, therefore, are points I would have
considered:
(1) It may be that ABC does not have
to put Miss Collins on the air upon her mere request - or even offer of payment
of the "going rate." That issue is not before us. Miss Collins was
picked by ABC as an "appropriate spokesman" (at least for her own
views, if not the views of others); the "time" for her appearance was
scheduled; and the "manner of presentation of the issue" was
pre-determined (an open, talk-format discussion show); she was expressly asked
to talk (on this subject) as well as to sing. Although ABC may be able to keep
Miss Collins from making any appearance on the "Dick Cavett Show" at
all, and may to some extent pre-determine the format if she does appear, I
seriously question whether it should be able to silence her at will - on the
basis of the views she expresses - once she does appear. Supreme Court
decisions, for example, have held that the government can impose reasonable
"time, place and manner" restrictions upon the use of public parks
for First Amendment activities; but it cannot censor the content of the speech
involved once these other details are arranged. Analogous principles might
apply to Miss Collins.
(2) The majority seems to feel that
mere recitation of the "common carrier" concept is sufficient to
justify the censorship of Judy Collins. I believe a more reasonable argument
can be made that the statutory reference to "common carrier" referred
only to the regulation of rates charged by stations. In any event, in light of
the legal principles contained in the subsequent Red Lion decision, I believe
we should consider whether the majority's interpretation of Section 3(h) of the
Communications Act is constitutional. If it is not, perhaps the FCC should
consider narrowing its scope to permit reasonable "access" by groups
or citizens to the facilities of mass communication.
In University Committee v. Gunn, 289 F. Supp. 469
(W. D. Tex. 1969), for example, the court asserted that "the
individual must be afforded some appropriate 'public forum' for his peaceful
protests." In In re Hoffman, 67 Cal. 2d 845, 434 P. 2d 353, 64 Cal.
Rptr. 97 (1967), the court ruled that a privately owned railway station was
open to the public generally, and that anti-war leaflets could not be barred so
long as they were consistent with the normal operation of the station. In Wolin
v. Port of New York Authority, 268 F. Supp. 855 (S. D. N. Y. 1967), aff'd, 392
F. 2d 83 (2d Cir.), cert. denied, 393 U.S. 940 (1968), the court
held that the privately owned Port Authority violated the guarantee of equal
protection in permitting some speech activities but not others - a
discrimination based on the content of the speech. In Marsh v. Alabama, 326
U.S. 501 (1946), the Supreme Court held that a privately-owned
"company town" could not ban certain speech activities. In Food
Employees local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968),
the Supreme Court said that picketers could not be excluded from a private
shopping center, stating: "The fact that the property from which appellant
was sought to be ejected for exercising her First Amendment rights was owned by
a private corporation rather than the State was an insufficient basis to
justify the infringement on appellant's right to free expression occasioned
thereby." Finally, in In re Lane, 457 P. 2d 561, 79 Cal. Rptr. 729
(1969), the court said a pamphleteer could not be barred from a privately
owned sidewalk, stating: "When a business establishment invites the public
generally to patronize its store and in doing so to traverse a sidewalk opened
for access by the public the fact of private ownership of the sidewalk does not
operate to strip the members of the public of their rights to exercise First
Amendment privileges on the sidewalk. . . ."
At the veryleast, these cases indicate that a private
owner of forums traditionally used for the communication of views may not be able
to censor, in any manner he wishes, the speech of private individuals who have
a right to be there. I believe the Commission should begin to explore the
implications of these cases in the area of broadcasting.
(3) Accordingly to statement made by
Dick Cavett on February 9, 1970, ABC's policy for censoring Judy Collins was
"based on its belief that these television remarks could prejudice the
possibility of the parties to receive a fair trail. . . . Beyond this . . .
ABC's policy is based on the view that continued televising of possibly
prejudicial comments on active litigation could threaten the American legal
process itself. . . . I have been advised that ABC's policy is supported by
recent decisions of the United States Supreme Court. . . ." This is a
rather surprising view. In the famous decision, Bridges v. California, 314
U.S. 252 (1941), Union leader Harry Bridges, the Times-Mirror Company, and
the managing editor of the Los Angeles Times had been found guilty of contempt
by the Los Angeles Superior Court for stating the following, strong opinion on
a pending trial: "Judge A. A. Scott will make a serious mistake if he
grants probation to Matthew Shannon and Kennan Holmes [accused of intimidating
non-union workers]. This community needs the example of their assignment to the
jute mill." On appeal, the Supreme Court (per Justice Black) reversed,
stating that the appropriate test was whether "'the words used are used in
such circumstances and of such a nature as to create a clear and present danger
that they will bring about . . . substantive evils'". The Court continued:
The assumption that respect for the judiciary can be won by shielding judges
from published criticism wrongly appraises the character of American public
opinion." This view has been followed in many Supreme and lower court
decisions and, to my knowledge, never reversed. See, e.g., Pennekamp v.
Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 364 (1947); Baltimore
Radio Show v. State, 67 A. 2d 507 (1949) (involving radio stations); State
v. Morris, 75 N. M. 475, 406 P. 2d 349 (1965). In light of this body of
precedent, I simply do not understand ABC's legal position. Like Commissioner
Cox, I would have appreciated some substantiation from ABC. Unlike Commissioner
Cox, however, I do not believe it is necessary at this time for this Commission
to request a transcript of Miss Collins' remarks - at least until the law in
this area is reviewed.
Corporate censorship by television networks is a
problem in this country. The most appropriate response from the Congress, the
courts and the Commission is not clear. I believe the FCC ought to get on with
the job of working out the standards. This would have been a useful case in
which to begin. I regret the Commission majority chose not to do so.