In Re Complaint by SAN FRANCISCO
WOMEN FOR PEACE, THE GI ASSOCIATION, THE RESISTANCE Concerning San Francisco,
Calif;
Radio and Television Stations Fairness Doctrine
FEDERAL
COMMUNICATIONS COMMISSION
24 F.C.C.2d 156
RELEASE-NUMBER: FCC 70-595
JUNE
4, 1970
OPINION:
[*156]
MR. DONALD A. JELINEK, 2437 Durant Avenue, Berkeley, Calif.
DEAR MR.
JELINEK: The Commission is in receipt of a complaint filed on February 25,
1970, on behalf of San Francisco Women For Peace, The GI Association and The
Resistance (complainants), against numerous radio and television stations in
the San Francisco, California area.
Briefly stated, complainants contend that the San Francisco stations have
violated the fairness doctrine in that armed forces recruitment messages have
been broadcast as public service announcements, but the stations have refused
to broadcast "public service announcements opposing the viewpoints
expressed in the military recruitment announcements" which complainants
have offered to supply.
In support of
this contention that the armed forces recruitment announcements raise a
controversial issue of public importance, complainants assert that: There are
many groups in the San Francisco area who do not believe it is beneficial to
the individual or society at large for people to participate in the armed
forces; armed forces recruitment cannot be considered without reference to the
war in Vietnam since the primary purpose of the U.S. Armed Forces [**2] is to fight wars and a military recruit is
very likely to be stationed in the Vietnam war zone at some time during his
military career (U.S. v. Sisson, 294 F. Supp. 511 (D. Mass) 1968, at 513); and
there are many groups in the San Francisco area who believe the best course of
action for young men "is to seek one of the many possible deferments from
military service provided for by Congress." Complainants assert that the
Commission's application of the fairness doctrine to cigarette advertising (9
FCC 2d 921 (1967)) is analogous and requires application of the fairness
doctrine to the recruitment announcements complained of and that the fact that
the U.S. Government is the sponsor does not exclude the matter from application
of the fairness doctrine. (Report on
Editorializing, (13 FCC at 1249)). Complainants also argue that their point of
view is entitled to exposure through spot announcements rather than news and
discussion coverage because of the more effective motivating factors inherent
in an "uninterrupted"
[*157] "prepackaged
message" which "allows the sponsor [in this case, complainants] to
prepare the announcements in such a manner as to have a desired psychological
effect" rather [**3] than the
"straightforward manner aimed at persuading the listener's rational
sense" which is the way views are presented on news and talk
programs. Finally, complainants argue
that the fairness doctrine applies to public service announcements because, as
opposed to normal commercial announcements, the broadcaster is making an
editorial judgment in choosing the particular spot announcement and must
therefore be more cognizant of his fairness obligations to preserve his
facilities as an "uninhibited market place of ideas" (Red Lion Broadcasting
Co., Inc. v. F.C.C., 395 U.S. 367, 390 (1969)).
Complainants'
presented their request for "substantially equivalent [free] time" to
present spot announcements reflecting their views in opposition to the Armed
Forces recruitment messages. Fourteen
(14) San Francisco area stations formally refused complainants' request and the
remainder did not reply. In view of our
determination that the stations did not act unreasonably in refusing
complainants' request, we need not detail all the reasons advanced by the stations. However, we note that eleven of the fourteen
stations who responded to complainants' request stated that they have presented
[**4] contrasting views regarding the
Selective Service System and the Vietnam War in newscasts and discussions and
other programs, and that they did not consider Armed Forces announcements
urging voluntary enlistment a controversial issue of public importance.
The fairness
doctrine requires that when a station presents one side of the controversial
issue of public importance it is obligated to afford reasonable opportunity for
the presentation of significant conflicting viewpoints on the issue. The crucial question raised is whether Armed
Forces recruitment messages constitute the presentation of one side of a
controversial issue of public importance.
We are unable to conclude that the presentation of such recruitment
messages, in and of itself, involves a controversial issue of public
importance.
Under the
fairness doctrine, it is the licensee's obligation in the first instance to
make a determination regarding the controversial nature of an issue and whether
an issue, if it is controversial, is one of public importance. Unless the licensee's judgment is shown to
be unreasonable, the Commission will not upset the judgment of the
licensee. In short, it is not a
question of the [**5] Commission substituting its judgment for
that of the licensee, but rather whether, in light of the showing before the
Commission, the licensee's judgment can be said to be arbitrary.
In the present
case, we do not believe that the broadcast of Armed Forces recruitment
messages, any more than similar recruitment messages for policemen, firemen,
teachers, census enumerators, peace corp. volunteers, etc., in and of itself,
raises a controversial issue of public importance requiring presentation of
conflicting viewpoints. We note that
the power of the Government to raise an army has not been questioned; rather
the thrust of the complaint is an objection to the use [*158]
made of the army (war in Vietnam) and the manner in which manpower is
conscripted (Selective Service draft).
In reaching this
conclusion we also note that complainants themselves reason that recruitment
messages are controversial because they are inextricably intertwined with the
conduct of the war in Vietnam and the Selective Service draft. There is no indication that any of the
stations against whom the complaint was filed have failed to treat the issues
of Vietnam and the draft (both concededly controversial issues of [**6] public importance) in conformance with the
fairness doctrine. Moreover, the only
indication as to what complainants consider the "opposing viewpoint"
to the Armed Forces recruitment announcements is one spot announcement entitled
"Draft Counseling," which offers information pertaining to draft
determents. The fact that Vietnam and
the draft are controversial issues of public importance does not, in our view,
automatically require that recruitment messages also be considered as such, and
we are unable to conclude that it was unreasonable for the broadcast stations
in the San Francisco area to decline to broadcast the "opposing" spot
announcements.
In reaching the
conclusion that no fairness doctrine violation has been demonstrated, we do not
mean to imply that nothing connected with a public service announcement could
bear upon a controversial issue of public importance. Such announcements, in particular instances, may present one side
of a controversy. Here, we simply note
that there is no indication that any such announcement (i.e., one presenting
one side of a controversial issue of public importance) was broadcast by any
station in the San Francisco area.
In view of the
[**7] foregoing, it is concluded that
no further action is warranted. Commissioner Johnson dissented and issued the attached
statement (Letter to Mr. Jelinek).
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE,
Secretary.
DISSENT:
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
When war begins,
all thinking stops.
ZECHARIAH CHAFEE, Jr. Free Speech in
the United States.
It is the
purpose of the First Amendment to preserve an uninhibited marketplace of ideas in
which truth will ultimately prevail, rather than to countenance monopolization
of that market, whether it be by the Government itself or a private licensee.
Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
Today one branch
of the Federal Government ignores the orderly complaints of its citizens and
rules that another branch of that same Government, the U.S. Army, can
propagandize without preserving for the young their First Amendment right to
self-defense. The Army and Marine Corps
will be permitted to harness all the seductive merchandising talents of Madison
Avenue to persuade draft-age young
[*159] men to enlist in the
armed forces. In support of the
Pentagon, the FCC has ruled that Americans have no right to talk [**8] back to their television sets -- at least on
this issue. Quakers, and other groups
opposed to military service in general and the Vietnam War in particular, are
now left with nothing but the recourse of demonstrations and draft-card burning
to attract the largess of the news media's television cameras. To put it bluntly, the majority has held
that the young people of this nation must find their path to the Fairness
Doctrine in the streets. I dissent.
No one, I think,
can ignore the present mood of this country.
We are engaged in a vast, officially undeclared land war in Southeast
Asia -- a war which has killed over 49,000 American soldiers, and in which
countless hundreds of thousands of Vietnamese, Laotian, and Cambodian soldiers
and civilians have lost their lives. Reputations
and careers in our country (including those of Presidents) have risen and
fallen on the extent to which the public has believed that our Vietnam policies
have been successful. Military budgets
and multi-billion dollar weapons systems are being questioned as never
before. There is a movement to
isolation in America in international affairs.
It should be obvious, therefore, that the military has an [**9] enormous vested interest in preserving
public faith in its policies and programs -- indeed its very existence. And one cannot ignore the fact that the
military can maintain its "favorable image" in perhaps no better way
than through propaganda pumped over the radio and television stations of our
country.
Senator William
Fulbright has recently warned us of the tremendous machinery that the military
has constructed to loose its propaganda upon an unsuspecting American
public. According to Senator Fulbright,
the Defense Department is spending millions of dollars to promote and justify
its activities at public expense. By a
conservative estimate, the Pentagon is now spending $40.5 million a year for
"Public Relations" -- an increase of 1500% since 1959 ($2.8 million),
when the Vietnam War first began to loom larger and larger in the public
eye. n1 See Cong Rec., Dec. 1, 1969, p. S-15144; Dec. 2, 1969, p. S-15306; Dec.
4, 1969, p. S-15649; and Dec. 5, 1969, p. S-15804 (Daily Ed.)
n1 In a recent statement to the
Senate Appropriations Committee, Senator J. William Fulbright reported that in
1959 the Congressional limit on Pentagon public relations spending was
$2,755,000. (Over-all defense spending
was then $43 billion.) By 1970, defense spending had doubled; but public
relations spending had increased 15-fold! The total was $40,447,000 -- roughly
double the entire annual appropriation for the FCC. Senator Fulbright reported defense officials maintained that
public relations expenditures were $27,953,000 for fiscal 1969. Now it appears these figures may have been
deliberately understated. Senator Fulbright
observed, "Apparently the department was not completely candid with me
since now, apparently in anticipation of the imposition of a legislative
ceiling, they state that the public-relation bill for that year was actually
$44,062,000." Washington Post, June 22, 1970, p. A-15, col. 1. For further material on military-oriented
public relations spending, see text at n. 2, infra. [**10]
We must heed
Senator Fulbright's warning:
There is something basically unwise
and undemocratic about a system which taxes the public to finance a propaganda
campaign aimed at persuading the same taxpayers that they must spend more tax
dollars to subvert their independent judgment.
I am reminded of W. C. Fields' admonition: 'Never give a sucker an even
break.' Id. at p. S-15333, Dec. 2, 1969 (Daily Ed.)
[*160]
I fear the Commission fails to understand what lies behind the
"Public Service" announcements, supplied gratis by the Army, and the
message they convey. Shortly after
assuming office, Secretary of Defense Melvin Laird told the Defense Department
that "[propaganda] has no place in the Department of Defense public
information programs." Quoted by Sen. Fulbright, Cong. Rec., p. S-15145,
Dec. 1, 1969 (Daily Ed.). Yet from all
accounts the Pentagon's "public information" program is aimed, not at
providing the public "with unvarnished facts, but at persuading it that
the programs and weapons systems of the Army, Navy, or Air Force... should have
the first claim on public funds and are the key to peace." Senator Fulbright,
Cong. Rec., p. S-15333, Dec. 2, 1969 (Daily Ed.).
I believe
[**11] that this Commission, as one
branch of "The Government," has a special obligation to preserve both
the appearance and the actuality of fairness and impartiality when it is called
to weigh Fairness Doctrine complaints by a broad range of citizens groups
against another branch of "The Government." Chief Justice Burger,
then a Judge of the United States Court of Appeals, has condemned this
Commission's "curious neutrality-in-favor-of-the-licensee." United
Church of Christ v. FCC, No. 19, 409 (D.C. Cir. June 20, 1969). Yet real neutrality -- by the Commission and
by broadcast licensees -- is indispensable where broad-based but under-financed
groups of citizens attempt to debate the military-industrial complex in the
public forums of radio and television.
In Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 396 (1969), the Supreme Court warned:
There is no question here... of a
discriminatory refusal [by the Commission] to require the licensee to broadcast
certain views which have been denied access to the airwaves * * *. Such questions would raise more serious
first amendment issues. [Emphasis
added.]
I believe this Commission has required petitioners
here to sustain a far greater [**12] burden
of proof than it imposed on petitioners in its cigarette decision,
Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d
921 (1967), and therefore stands guilty of a "discriminatory refusal to
require" licensees to broadcast the views of citizens opposing the
"Join the Army" campaign of the military.
II.
On June 2, 1967,
this Commission applied the Fairness Doctrine to cigarette advertising. Letter to WCBS-TV, FCC 67-641. In that ruling we stated:
The
advertisements in question clearly promote the use of the particular cigarette
as attractive and enjoyable. Indeed,
they understandably have no other purpose.
[Except, of course, the actual sale of cigarettes.] But we believe that
a station which presents such advertisements has the duty of informing its
audience of the other side of this controversial issue of public importance --
that however enjoyable, such smoking may be a hazard to the smoker's health.
See Cigarette Advertising, 9 F.C.C. 2d 921, 938
(1967). In reaffirming the ruling, we emphasized (referring to a June 29, 1967,
Federal Trade [*161] Commission Report) that the
"desirability" of smoking in cigarette advertisements "is
portrayed in [**13] terms of the
satisfactions engendered by smoking and by associating smoking with attractive
people and enjoyable events and experiences, and that by so doing the
impression is conveyed that smoking carries relatively little risk...."
Id. at 938.
Petitioners have
attached the text of 18 military service recruitment announcements to their
petition. A sample of two adequately
conveys the mood of these advertisements:
ANNOUNCER. IT'S
A DAY YOU CAN'T PUT INTO WORDS. YOU TRY TO COMPARE IT WITH THE DAY YOU
GRADUATED FROM HIGH SCHOOL, BUT THERE'S NO COMPARISON. BECAUSE SOMEHOW THE DAY YOU GRADUATED FROM
HIGH SCHOOL, YOU WERE STILL JUST ANOTHER GUY, AND ON THIS DAY, YOU'RE SOMETHING
ELSE. YOU LOOK TALLER THAN YOU DID
BECAUSE YOU STAND TALLER. YOU LOOK PROUD
BECAUSE YOU ARE PROUD. AND NO WONDER... YOU'VE JUST GONE THROUGH THE TOUGHEST
EIGHT WEEKS A GUY EVER HAD. AND IF YOU DIDN'T HAVE WHAT IT TAKES, YOU WOULDN'T
BE STANDING WITH THE REST OF THEM, YOU WOULDN'T BE WEARING THE SAME UNIFORM.
ASK A MARINE. ASK A MARINE WHAT IT MEANS TO GRADUATE FROM BOOTH CAMP. HE'LL
TELL YOU. IT'S A DAY TO REMEMBER FOR THE REST OF YOUR LIFE. BECAUSE THAT DAY
THEY SEPARATE THE MEN FROM THE BOYS.
REFRAIN. [**14]
ASK A MARINE.
* * *
ANNOUNCER. WE
UNDERSTAND YOU'RE LOOKING FOR A MAN'S JOB. WELL, WE JUST MAY HAVE ONE. WHO ARE
WE? WE'VE BEEN IN BUSINESS SINCE
1775. WE'RE LOCATED IN CLOSE TO 200
PLACES AROUND THE WORLD. WE'LL PAY WHILE WE ARE TRAINING YOU. GIVE YOU THIRTY
DAYS OFF PER YEAR. GIVE YOU A CHANCE TO CONTINUE YOUR EDUCATION. AND WE'LL
BUILD YOU A MAN. WE'LL BUILD YOU A MARINE. AND THAT MAN AND THAT MARINE WILL BE
YOU.
REFRAIN. ASK A MARINE.
I think it is
clear from just these two advertisements that the "desirability" of
joining the Marines is portrayed in terms of the "satisfactions" to
be derived from such an experience [you'll "stand taller," you'll be
"proud," etc.] and by "associating" membership in the
Marines "with attractive people" [real "men," men who
"have what it takes," etc.] and "enjoyable events and
experiences" [travel, on-job training, thirty days off per year, a chance
to continue one's education, etc.].
As with the
cigarette advertisements, there is something missing. What is noticeably absent from these advertisements is the view,
widely held by many respected citizens, that "for hundreds of thousands of
soldiers the pay is poor, the principal 'educational [**15] opportunity' is the opportunity to learn how
to kill, and the 'travel' is to Vietnam, where the question of whether the
military is making a 'really worthwhile contribution to the security of [the
United States]' is a highly controversial one." Letter from Mr. Donald A.
Jelinek to the FCC, Feb. 16, 1970, Appendix IV, p. 2. n2
n2 The internally quoted material is
taken from other military recruitment advertisements reproduced in Appendix
III, p. 1, to Mr. Jelinek's letter.
Some of the material will be quoted elsewhere in this opinion.
[*162]
III.
In light of the
close similarity -- and perhaps even identity -- of the instant complaint with
our Cigarette Advertising ruling, let us examine the majority's justification
for ruling against petitioner.
In the first
place, the majority begins by stating what I believe to be an oversimplified
interpretation of the Fairness Doctrine: "that when a station presents one
side of a controversial issue of public importance it is obligated to afford
reasonable opportunity for the presentation of significant conflicting
viewpoints on the issue." [Emphasis added.] This interpretation assumes
that the licensee's obligation to present all viewpoints [**16] on issues of controversy and public
importance is invoked only when one side is first presented. Were this the case, the licensee could
circumvent the Fairness Doctrine by simply refusing to present any views on
such issues. I believe, on the
contrary, that the Fairness Doctrine is invoked, not when one side of an
important issue is presented by a licensee, but when such an issue arises. By my reading, this was the Supreme Court's
view of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 395 U.S.
367, 369 (1969), where it was described as the "requirement that
discussion of public issues be presented on broadcast stations, and that each
side of those issues must be given fair coverage."
Next, the
majority drags out the customary and familiar boilerplate recitation that the
Commission will defer to the licensee's judgment on a Fairness Doctrine matter
so long as it is "reasonable." ("In short, it is not a question
of the Commission substituting its judgment for that of the licensee, but rather
whether, in light of the showing before the Commission, the licensee's judgment
can be said to be arbitrary.") Of course, everyone must know that this
double talk is nonsense, and [**17] is
used primarily when the Commission does not want to apply the Fairness Doctrine
to a particular factual situation.
Obviously at some point this Commission must decide that the licensee is
wrong in his determination that the Fairness Doctrine is inapplicable, and I do
not see how we can do this unless we substitute our judgment for the
licensee's. Whatever may be the initial
responsibility of the licensee, some agency mut arbitrate disputes regarding
the applicability of the Fairness Doctrine -- and that task has been assigned
to the Federal Communications Commission, with review by the courts. In any case, the majority treats this
"throwaway" language precisely for what it is -- a useless appendage
inserted routinely in Commission opinions -- and proceeds to make its own,
independent determination anyway: "In the present case, we do not believe
that the broadcast of Armed Forces recruitment messages... raises a
controversial issue of public importance.
* * *"
Finally, the
Commission majority states why it believes that the recruitment messages do not
raise controversial issues of public importance. Its creation is scarcely a monument to clarity. So far as I can determine, [**18]
however, the majority seems to be saying that advertisements asking
young men to join the Army -- like "similar recruitment messages"
asking people to become "policemen, firemen, teachers, [*163]
census enumerators, peace corps volunteers, etc." -- only raise the
issue whether the particular institution in question (here the Army) has the
legitimate power to recruit members.
(The majority states: "We note that the power of the Government to
raise an army has not been questioned.
* * *" I cannot imagine why the majority merely "notes"
this point if it is the crux of its holding.) The majority then goes on to
reject the petitioners' arguments, stating that the recruitment advertisements
do not refer to the "use made of the army (war in Vietnam)" and the
"manner in which manpower is conscripted (Selective Service draft)."
This reasoning
seems faulty on a number of counts.
First, it merely
illustrates the principle that determined men, if they try hard enough, can
define any problem out of existence. If
the Commission had applied similar reasoning to cigarette advertisements three
years go, we would presumably have ruled that cigarette advertisements raise
only the issue of whether cigarette [**19]
manufacturers have the right to recruit customers. Not surprisingly, the broadcasting industry
made precisely this argument with respect to cigarette advertising, contending
that "no controversial issue of public importance can be presented where a
lawful business is advertising a lawful product." Not surprisingly, we
gave it suitably short shrift. See
Cigarette Advertising, 9 F.C.C.2d 921, 938-40 (1967). What is surprising,
however, is that the majority now finds such specious reasoning so persuasive.
Second, it seems
obvious to me from the text of the recruitment advertisements that they do far
more than merely assert the right of the army to recruit members. Indeed, it is difficult to treat this latter
notion seriously. What would the
average listener or viewer think upon hearing a military recruitment
advertisement such as, "SHOULD YOUR BOY JOIN THE U.S. MARINES? * * * IT REALLY DEPENDSON * * * HOW SOON HE
WANTS TO BE AMAN"? Would he assume that this is the Army's effort to
persuade him that it cn legitimately recruit members? On the contrary, the rather blatant message of these spots is
that it is "desirable," for a multitude of reasons, for a young man
to join the [**20] military.
The principle question, therefore, is whether promotion of the
"desirability" of military service raises a controversial issue of
public importance.
Third, it seems
clear that the majority's references to other types of recruitment --
"policemen, firemen, teachers, census enumerators, peace corp. volunteers,
etc." -- re simply misplaced. For
one thing, so far as I know policemen, firemen, teachers, etc., are not
threatened with the prospect that if they do not "volunteer" for
service, they will be drafted!
Congressional appropriations for "standing armies," the
quartering of troops, and the relative role of the military generally have been
controversial issues since the very founding of our nation. They are no less so at this hour. This is in part because the military conscripts
men against their will, forces them to kill and destroy, and subjects them to
the omnipresent threat of death. These
risks are simply not shared by census enumerators, whatever else may be the
hazards of their job. For another
thing, there is no question as to the power of
[*164] municipalities and
schools to hire policemen and teachers.
Serious question has been raised, however, as to whether [**21]
the President can legitimately conduct a war in Southeast Asia, invading
new countries at will, without a declaration of war by the Congress, as
required by Article I, Section 8, of the Constitution. If is one thing to hire men to teach school;
it is quite another to force them to fight and die in a war that may be
illegal.
IV.
The majority
finally advances as its essential argument the proposition that there is no
connection between military recruitment announcements and two other issues of
admittedly high controversy -- the Vietnam War and the Selective Service
system. This argument is faulty. This argument is for many reasons.
First, as
discussed above, the majority has set up a "straw man" by adopting a
highly artificial and narrow definition of the scope, function and impact of
the military recruitment advertisements in question, and then knocking it down
as "non-controversial."
Even if the
recruitment advertisements made no claims that military service was
"desirable," but merely contained the exhortation "Join the
Army, Join the Army," I believe they would raise an issue of controversy
and public importance. The reason is
that one simply cannot separate the controversiality [**22] of a recruitment advertisement from the
nature and function of the job in question.
If -- to pick a deliberately strong example -- the Government were to
recruit soldiers for a special commando troop whose function was widely known
as encompassing the assassination of civilians in Vietnamese villages, and used
advertisements which simply urged men to "Join the Commandos, Join the
Commandos," only a person with the most tenuous grip on reality could
reason that nothing more than "the power of the Government to raise an
army" had been placed in question.
Recruitment advertisements for policemen, firemen, teachers, census
enumerators, and so forth, are not controversial because the work they do is
not controversial. But I suspect
recruitment solicitations for National Guardsmen in the Kent State University
region of Ohio, or for the CIA in Berkeley, would be highly controversial. So it is for recruitment into the armed
forces generally at this time.
Second, the
military recruitment advertisements before us obviously do far more than urge
young men to "Join the Army." They make grandiose and wide-ranging
claims as to the "desirability" of military service, just as cigarette
commercials [**23] taught the
desirability of smoking. And once the
desirability of military service is placed in issue, I simply do not see how
one can avoid a discussion of what one will be doing there [continuing one's
education, becoming "a man," joining "the leaders"], where
one will be doing it [in "close to 200 places around the world" --
one of which is presumably Vietnam], and how one will be rewarded ["good
pay" nd a share in the "fight for freedom" and the
"protection of our nation and our ideals"].
Third, even
apart from the present Vietnam conflict, the issue of military service has
traditionally been embroiled in extreme controversy of great public
importance. See United States v.
O'Brien, 891 U.S. 367 [*165] (1968); Holmes v. United States 891 U.S. 936
(1968) (Douglas, J., dissenting, with a long historical sketch on the
controversial nature of the Armed Forces).
Indeed, the role of the military in our society in general, and its
specialized methods for recruiting members in particular, have generated
controversies of such long standing that they extend almost back to the
Revolutionary War. See United States v. Nugent, 346 U.S. 1 (1953); Hamilton v.
Regents of the Univ. of California, 293 [**24]
U.S. 245 (1934); Selective Draft Law Cases, 245 U.S. 366 (1918);
Tarble's Case, 80 U.S. [13 Wall.] 397 (1871); Prize Cases, 67 U.S. [2 Black]
635 (1862). The history of this
controversy is quite distinct from the experience of other public groups, like
firemen and teachers, relied upon by the majority. In Schenck v. United States, 249 U.S. 47 (1919), for example, the
Supreme Court adopted the "clear and present danger" test to convict
persons of circulating documents which complained that the Conscription Act
violated the Thirteenth Amendment's prohibition against "slavery" and
"involuntary servitude," and urged potential draftees to "assert
your opposition to the draft." Even today one pressing and important
"controversial" issue is the extent to which a young man who succumbs
to military recruitment advertisements and joints the army loses those
constitutional rights guaranteed to civilians by the Supreme Court in cases
since Schenck. See Note, Dissenting
Servicemen and the First Amendment, 58 Geo. L.J. 534 (1970).
Fourth, it
cannot be denied that this country is in fact engaged in a serious war, and
that the army is playing an integral part in it. A federal court, for example,
[**25] has acknowledged that
service in the Armed Forces, whether by recruitment or enlistment, carries with
it "a strong probability of ultimate service in Vietnam." United
States v. Sisson, 294 F. Supp. 511, 513 (D. Mass. 1968). Indeed, almost all our
pressing national problems -- inflation, campus unrest, racial discrimination,
the urban crisis, mass demonstrations and protest -- appear linked in some way
to the Vietnam War. Highly respected legal scholars have argued, as well, that
the President has violated the Constitution in conducting an
"undeclared" war. F. Wormuth, The President Versus the Constituion
(paper published by the Center for the Study of Democratic Institutions, Santa
Barbara, Calif., 1968); Hughes, Civil Disobedience and the Political Question
Doctrine, 43 N.Y.U.L. Rev. 1 (1968); The Vietnam War and International Law, Am.
Soc. Int'l Law (R. Falk ed., 1968). How
can recruitment solicitations be considered anything but controversial?
Finally,
consider some simple statistics. In
1969, some 59,000 Americans (49,000 men and 10,000 women) died of lung cancer,
and over 90% of these deaths are reputedly linked to cigarette smoking. Smoking and Lung Cancer, Public Health
[**26] Service pamphlet (1970). This means that of the 70,000,000 Americans
who consume tobacco in one form or another, approximately 53,100 -- or one out
of 1,300 -- died of lung cancer in 1969.
(If one accepts the higher figure of 300,000 cigarette related deaths
per year, the ratio becomes one out of 233.) The enormity of this problem in
part lead the FCC several years ago to apply the Fairness Doctrine to cigarette
commercials. Cigarette Advertising, 9
F.C.C. 2d 921 (1967).
[*166]
Yet what of the hazards of military service? During 1969, the same period in question, the United States had
3,127,000 servicemen in uniform around the world -- many of whom were thousands
of miles from Vietnam. Of that total
number, however, approximately 11,527 -- or one out of 275 -- lost their lives
in Vietnam. Source: Office of Public
Information, Southeast Asia Desk, U.S. Department of Defense (June 18, 1970).
Simply stated,
it is at least as dangerous to enlist in the armed services s it is to use
tobacco. This Commission has ruled that
invitations to smoke cigarettes raise issues of sufficient controversy and
public importance to invoke the Fairness Doctrine. Yet invitations to join the military [**27] do not.
Why? Frankly, the majority's reasoning -- what there is of it -- escapes
me.
Cigarette
advertisements were brought under the Fairness Doctrine -- which, after all,
requires only that the other side be told -- in part because they were
inherently deceptive. The ads
represented to their audience that smoking was "desirable," without
warning that death or serious illness might follow. I believe that solicitations for military service are similarly
deceptive, for they do not warn their audience that death or serious injury
might follow, as a statistical consequence of enlistment, or that a young man
of draft age may have alternatives to the "enlist-or-be-drafted"
dilemma. Congress itself has, in the
Selective Service Act, exempted from military service, for reasons of strong
national policy, persons who fall in numerous categories. Persons, therefore, whom Congress did not
intend to induct, may be induced into a military obligation which was unrequired,
and perhaps even undesirable, as a direct consequence of partial truths
contained in the advertisements before us.
To the extent these advertisements suggest that young men can satisfy
their patriotic obligations to their [**28]
country only by military service, they are inherently deceptive. Only the application of the Fairness
Doctrine can correct this deception by requiring the presentation of
alternative views.
V.
The majority
claims that the military recruitment advertisements do not raise an issue of
controversy and public importance. They
contend that in any case there is "no indication that any of the stations
against whom the complaint was filed have failed to treat the issues of Vietnam
and the draft (both concededly controversial issues of public importance) in
conformance with the fairness doctrine." In our Cigarette Advertising
ruling, 9 F.C.C. 2d 921 (1967), we addressed this problem of sufficiency. Whereas we concluded that the broadcaster
was not required to devote an "equal" amount of time to opposing
views, we held that the time must at least be "significant." Id., 9
F.C.C. 2d at 949. In National Broadcasting Co. [WNBC-TV], 16 F.C.C. 2d 947, 15
P & F Radio Reg. 2d 1059 (1969), for example, the Commission (over my
dissent) ruled that a ratio of one antismoking commercial to 8.1 cigarette
commercials was "significant."
In the present
case, however, so far as I know, as do not have [**29] any
[*167] indication of the ratio
involved -- military recruitment advertisements to anti-military coverage. The majority's assumption that all the
licensees broadcasting such advertisements have fulfilled their Fairness
Doctrine obligations, therefore, seems completely unsupported by any
evidence. One can only wonder why the
majority seems so eager to base such an important precedent-setting decision on
so little.
In addition,
there are a number of factors that should be weighed in determining whether a
licensee has given "significant" coverage to various views. First, an important factor is the frequency
and regularity of presentation. The
Commission has explicitly recognized this factor in its decision, Cigarette
Advertising, 9 F.C.C. 2d 921, 941 (1967):
We think that
the frequency of the presentation of one side of the controversy is a factor
appropriately to be considered in our administration of the Fairness Doctrine *
* * For, while the Fairness Doctrine does not contemplate "equal
time" if the presentation of one side of the issue is on a regular and
continual basis, fairness and the right of the public adequately to be informed
compels the conclusion that there must be some [**30] regularity in the presentation of the other side of the issue.
In affirming this ruling, the United States Court of
Appeals in Banzhaf v. FCC, 405 F. 2d 1082, 1099 (D.C. Cir. 1968), was even more
explicit:
In these
circumstances, the Commission could reasonably determine that news broadcasts,
private and governmental educational programs, the information provided by
other media * * * inadequately inform the public of the extent to which its
life and health are most probably in jeopardy.
The mere fact that information is available, or even that it is actually
heard or read, does not mean that it is effectively understood. A man who hears a hundred 'yeses' for each
'no,' when the actual odds lies heavily the other way, cannot be realistically
deemed adequately informed. [Emphasis
supplied.]
According to the Office of the Controller, U.S.
Department of Defense (information supplied June 19, 1970), the American Forces
Radio and Television Service (AFRTS) spent at least $229,000 in 1969 producing
1,000 radio and 300 television spot announcements, all supporting military
information themselves. n2 Although it
is unclear how many of these are devoted to military recruitment advertisements
[**31] of the sort before us (an
interesting question which the majority has failed to ask), it is perhaps
insightful that the Defense Department itself budgets the cost of the spot
announcements to "recruiting" -- an
[*168] indication that perhaps
the Pentagon has something more in mind than mere information to the public
when it runs its spots from coast to coast.
n2 It is difficult to put a dollar
value on the recruiting spot activities of the Pentagon. The talent of contributors like Jack Webb,
Frank Blair, Jonathan Winters, and so forth, are given without charge. Their commercial value would, of course, be
thousands of dollars in the aggregate.
The air time is also "contributed" (subject to such coercion
as may be involved from the combination of the Department of Defense and the
Federal Communications Commission). The
value of this time is also virtually impossible to compute accurately, but
estimates running well in excess of $10 million annually would appear
reasonable. The hidden costs of Defense
Department personnel, physical facilities, materials, distribution costs, and
so forth cannot be ascertained. But
even the Pentagon itself is prepared to acknowledge directly attributable costs
of at least $229,000 in 1969. The radio
spots are prepared by three professionals and one clerical aide (salaried at
$49,000 a year), who regularly send them to 350 radio stations across the
country for systematic rebroadcast.
They produced 1000 radio spots in 1969 alone. The acknowledged cost: $121,000.
AFRTS also spent a total of $108,000 in 1969 producing 260 television
recruitment spots and 40 five-minute fillers (combining both entertainment and
a recruitment pitch) for regular use on 90 television stations across the
country. The AFRTS television effort
employs six full-time professionals and one clerical aide, also at a cost of
$49,000. Thus, AFRTS publicly
acknowledges spending a total of $229,000 for radio and television recruitment
spots in 1969 alone. [**32]
How effective
are these military advertisements? No
one can tell. However, the Chief of
Naval Personnel, Vice Admiral Charles K. Duncan, recently reported to Congress
that the Navy alone receives from $8 to $10 million in free time over the
airwaves for military programming every year -- a "significant"
amount by anyone's public relations standards.
Hearings on Fiscal Year 1971 Department of Defense Budget, House
Subcommittee on Defense Appropriations, 91st Cong., 2d Sess., Pt. II, at p. 86
(Mar. 3, 1970). Without more direct
evidence before us, and in light of this military propaganda barrage, I would
question whether the San Francisco stations have truly fulfilled their Fairness
Doctrine obligations.
Second, even if
licensees have satisfied the Fairness Doctrine under traditional analyses, I
think we must recognize the unusually powerful impact of spot advertising as
compared to normal news coverage.
Prepared spot announcements should be placed in a class by themselves --
a proposition acknowledged by FCC Chairman Dean Burch with respect to political
advertising. Voters' Times, Twentieth
Century Fund Commission on Campaign Costs in the Electronic Era, p. 15 (New
York 1969); [**33] Statement of Chairman Dean Burch,
Subcommittee on Communications and Power of the House Committee on Interstate
and Foreign Commerce, June 2, 1970. The
spot announcements in question invoke the familiar Madison Avenue techniques:
The enticements
of glamour and excitement, the promise of a rewarding future, the allure of
travel to faraway places, the invocation of an ethic of masculinity, and the
reassuring appearance of well-known celebrities -- Jack Webb, Coach Richie
Guerin of the Atlanta Hawks, Jonathan Winters, former U.S. Senator Paul
Douglas, and "Marine Reservist Ed McMahon" -- to intone the blandishments
prepared by the army's recruitment officers and public relations
specialists. Petitioners seek only to
present an alternative to the siren call of the military establishment. This the majority has refused them.
One final point
requires mention. The broadcasting
industry bitterly fought the anti-smoking announcements, fearing that their
insertion into daily programming might eliminate time that otherwise could be
used for paying commercials. The
military recruitment advertisements before us, however, provide the licensee
with no income. They are donated, free
of charge, [**34] by broadcasters as an alleged "public
service announcement." If a station broadcast two such advertisements a
day, it could easily reduce this number to one a day, and fill [*169]
the vacated spot with the proffered anti-military recruitment
advertisements. In so doing, the
license would be out-of-pocket nothing.
It seems clear to me, therefore, that the intensity of resistance to
petitioner's message may be caused more by "political" than
"economic" considerations.
Let's face facts. One ruffles no
feathers when one supports the military establishment; but opposition to that
establishment always seems controversial.
I find it revealing, to say the least, that broadcasters find themselves
so eager to donate free time to the army to recruit soldiers to fight its wars,
yet deny a portion of that free time to opponents of that process. The "robust, wide-open debate" so often
publicly cherished by this Commission seems sadly lacking in this
decision. That the Commission is a
party to both decisions -- the implied encouragement to broadcasters to carry
the government's "public service" announcements, and support for the
exclusion of contrary views -- makes today's decision especially vicious. [**35]
VI.
Even if there
were no basis in law whatsoever for petitioners' claims (which most assuredly
there is), a confident and compassionate government would grant their
"humble petitions" (to quote from the Declaration of Independence). Is this Administration really so frightened
of the rights of free speech and press and "the right of the people
peaceably to assemble, and to petition the Government for a redress of
grievances" (to quote from the Bill of Rights) that its critics must be
met with intimidation (the Vice President versus the networks), gunfire (at
Kent), and slammed doors (at the FCC)?
What harm can be done by granting American citizens access to the
airwaves they own to present their modest messages of reply to their
government, when it would cost the broadcast industry nothing? If that truly constitutes a threat to
national security, then the "Decline and Fall of the American Empire"
is closer at hand than any of the modern-day Gibbons have feared to predict.
But the fact of
the matter is that -- whatever side God may be on -- the law is with the
petitioners. The FCC and the
broadcasting industry together, using U.S. Army commercials, have the
"power" to abridge [**36]
Americans' freedom of speech (subject to review by the courts). But I do not believe they have the legal
right to do so. At any rate, as is by
now obvious, they do not have the wisdom to refrain from doing so.