In Re Application of ROBERT H.
SCOTT, SARATOGA, CALIF. For Review of Fairness Doctrine Ruling Concerning
Station KTVU, Oakland, Calif.
FEDERAL
COMMUNICATIONS COMMISSION
25 F.C.C.2d 239
RELEASE-NUMBER: FCC 70-883
AUGUST
24, 1970
OPINION:
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Mr. ROBERT H. SCOTT Post Office Box 761, Saratoga, Calif.
DEAR MR. SCOTT:
This is with reference to your letter of April 17, 1970, concerning the ruling of
October 1, 1969, issued pursuant to authority delegated to the Chief of the
Broadcast Bureau. We are treating your
letters of November 12, 1969, and April 17, 1970, as an application for review,
under Section 1.115 of the Commission's Rules, of the October 1 ruling.
We have
considered the arguments advanced in support of your contention that the
fairness doctrine applies to a prayer recital and a portion of the Pledge of
Allegiance broadcast by Station KTVU, Oakland, California, during the program
titled "Romper Room," but for the reasons set forth herein we are not
persuaded that the staff's ruling was in error.
In seeking to
apply the fairness doctrine here, you assert that:
To say,
"God is great" and "God is good," along with the phrase
"under God," is clearly tantamount to saying "There is a God,
and therefore atheism is mistaken." * * * Indeed... any religious
utterance, ceremony, or ritual, is necessarily antiatheistic...
In this connection, we invite your attention to our
ruling in Mrs. Madalyn Murray 40 FCC 647 (1963) that licensees acted reasonably
and in good faith in determining that mere broadcast of church services,
devotionals and prayers is not the presentation of controversial issues of
public importance within the meaning of the fairness doctrine. Also applicable here is our ruling in the
Martin-Trigona case, n1 wherein we stated that:
n1 Letter to Anthony R.
MartinTrigona, 19 FCC 2d 620 (1969), reconsideration denied, FCC 70-390, FCC 2d. .
a mere passing reference to an issue
in an entertainment program [does] not constitute such advocacy of a viewpoint
with respect to that issue so as to impose an affirmative obligation on the
station to present contrasting viewpoints.
Initial
responsibility rests with the licensee for determining whether one side of a
controversial issue of public importance has been presented, and the Commission
will review the licensee's decision only to determine whether it appears to
have been a reasonable one, made in good faith.
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We are unable to find that the decision of the licensee here was
unreasonable or made in bad faith.
Accordingly, your application for review is DENIED.
Commissioner Johnson dissenting and issuing statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE,
Secretary.
DISSENT:
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
According to the
complaint before us, KTVU broadcasts a children's program, "Romper
Room," five days a week before noon.
The children regularly recite the following grace:
God is great.
God is good.
Let us thank him
for our food.
Amen.
This prayer clearly presents -- presumably to
pre-school or primary school children, not adults -- the view both that a God
exists, and that he is "good." The majority rules that presentation
of this prayer, five times a week, to children at an impressionable age, does
not involve the fairness doctrine, and does not require access by opposing
views. I dissent to this ruling on two
grounds.
First, the
position that a God exists and that he is "good" has been a view of
controversy and public importance since the Founding Fathers adopted the First
Amendment, prohibiting the Government from making laws "respecting an
establishment of religion, or prohibiting the free exercise thereof."
Religious prayers in public schools, delivered to "captive" young
audiences of children, have merely illustrated recent aspects of the
controversy. See, e.g., School District
v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). Given
this history, I do not see how we can defer, without any evidence, to the
licensee's own judgment that the prayers do not touch issues of controversy and
public importance in the community in question.
Second, by barring
the expression of opposing views, I fear we are "establishing" the
religious viewpoints contained in the prayer.
If the Government permitted advocates for certain religious viewpoints
to speak in public parks, for example, but barred speech by non-believers in
those same parks, that action would clearly violate the Establishment Clause of
the First Amendment. Yet that is
precisely what the Commission does in the public forum of broadcast
communication. The Supreme Court has
ruled that "neither a State nor the Federal Government... can
constitutionally... impose requirements which aid all religions as against
non-believers, and neither can aid those religions based on a belief in God as
against those religions founded on different beliefs." Torcaso v. Watkins,
367 U.S. 488, 495 (1961). The Government must remain "neutral" toward
religions and non-religions -- protecting all, but preferring none and
disparaging none. School District v.
Schempp, supra. The Commission's action, however, is not "neutral" --
it permits expression of one religious viewpoint, yet bars access by other
views. Such seemingly innocuous prayers
as the one before this have been found by the courts to fall within [*241]
the Establishment Clause prohibition.
E.g., Engel v. Vitale, supra.
It may very well
be that, had we inquired, the station could have demonstrated it has fully
complied with the fairness doctrine on these issues. There is certainly no general lack of radio and television
programming and commercials that propagandize for values and life styles wholly
at variance with basic tenets of all the world's great religions. However, there is simply no evidence before
us one way or the other on these issues.
I regret our refusal to make the necessary inquiries in this case.