30 F.C.C.2d 150

APRIL 28, 1971

OPINIONBY: BURCH

OPINION:

COMPLAINT

DEAR MR. CHAIRMAN: This is in response to your letter of March 9, 1971, in which you register a complaint concerning the CBS news documentary, "The Selling of the Pentagon". You ask "what action the Commission will take" in light of allegations by Assistant Secretary of Defense Daniel Z. Henkin that his answers to questions posed by CBS newsman Roger Mudd had been so edited and rearranged as to misrepresent their content, and that a statement was attributed to a Marine colonel "when, in fact, the officer was reading a quotation of the Prime Minister of Laos". You also enclose a letter to Dr. Frank Stanton, President of CBS, asking for comment on Mr. Henkin's allegations and on techniques of editing whereby "through the editing process, answers to questions may easily be curtailed or rearranged... and [made] to appear to have been given in response to different questions". Similar inquiries and complaints were also received from Chairman Hebert of the House Armed Services Committee, from other members of the Congress, and from the public.

Taken together, two principal questions have thus been raised: (1) whether CBS adhered to the requirements of the fairness doctrine to afford reasonable opportunity for the presentation of contrasting viewpoints on issues of public importance covered in the program; and (2) whether CBS slanted or deliberately distorted its presentation of persons interviewed on the program. As to (1), we note that CBS presented an hour-long news special on April 18 for the stated purpose of affording an opportunity for the presentation of contrasting viewpoints on the issues of substance raised in the original program. The Commission, however, is still requesting the comments of CBS as to whether it has complied with the requirements of the fairness doctrine in this matter. A copy of the letter is attached. In this Statement, therefore, the Commission will address question (2) above.

THE FACTUAL RECORD

On February 23 and again on March 23, in the documentary at issue, the CBS network stated that the Department of Defense would spend $30 million this year in "public relations funds not merely to inform but to convince and persuade the public on vital issues of war and peace".

The original broadcast aroused controversy as inquiries and complaints to this Commission have attested. As a consequence, following the March 23 rebroadcast, CBS ran a series of edited film clips of critical comments derived from previous addresses and interviews by Vice President Agnew, Secretary Laird, and Chairman Hebert, plus a rebuttal by Mr. Richard Salant, President of CBS News.

The controversy has focused on two aspects of "The Selling of the Pentagon" in particular, and the essential facts are not really in dispute. One concerns a film-clip from an address delivered by Colonel MacNeil at a symposium held in Peoria, Illinois, n1 featuring presentations by what CBS described as "the traveling colonels" (military and civilian spokesmen supplied, on request, to local civic and professional organizations). As far as the viewer could tell -- and neither Colonel MacNeil nor CBS made it clear -- the speaker seemed to be affirming the "domino theory" as applied to Southeast Asian nations under Ommunist pressure, although as the printed transcript shows he was in fact quoting the Prime Minister of Laos to this effect. Later in the course of his remarks, Col. MacNeil did return to the "domino theory" and he did affirm it in virtually the same words as the Laotian Prime Minister. As Mr. Salant observed in his March 23 rebuttal, it was "difficult to tell where Souvanna Phouma left off and the Colonel started."

n1 CBS, in its documentary, stated that the Defense Department's participation in the symposium "was arranged by Peoria's Caterpillar Tractor Company, which did 39 million dollars of business last year with the Defense Department." The Defense Department has stated, however, that the event was arranged and sponsored by the Peoria Association of Commerce with a Caterpillar employee serving as chairman of the symposium.

The other aspect of principal controversy concerns an interview between Mr. Henkin and Mr. Mudd. In it, some portions of Mr. Henkin's answers were cut; and what appeared as answers to particular questions were in fact rearranged from answers to quite different questions. What follows is a detailed analysis of the interview as shown on the program, compared with the verbatim transcript of the original interview:

This is what the viewers of the CBS documentary were shown as a single exchange:

ROGER MUDD. What about your public displays of military equipment at state fairs and shopping centers? What purpose does that serve?

Mr. HENKIN. Well, I think it serves the purpose of informing the public about their armed forces. I believe the American public has the right to request information about the armed forces, to have speakers come before them, to ask questions, and to understand the need for our armed forces, why we ask for the funds that we do ask for, how we spend these funds, what we are doing about such problems as drugs -- and we do have a drug problem in the armed forces, what we are doing about the racial problem -- and we do have a racial problem. I think the public has a valid right to ask us these questions.

This, on the other hand, is how Mr. Henkin actually answered the question cited above:

Mr. HENKIN. Well, I think it serves the purpose of informing the public about their armed forces. [This is the only sentence that was retained intact in the answer as broadcast.] It also has the ancillary benefit, I would hope, of stimulating interest in recruiting as we move or try to move to zero draft calls and increased reliance on volunteers for our armed forces. I think it is very important that the American youth have an opportunity to learn about the armed forces. [Both the latter sentences were dropped entirely.]

The answer Mr. Henkin was shown to be giving had in fact been transposed from his answer to another and later question that dealt not only with military displays but also with the availability of military speakers. At that later point in the interview, Mr. Mudd asked Mr. Henkin whether such things as drug and racial problems constituted "the sort of information that gets passed out at state fairs by sergeants who are standing next to rockets."

Mr. Henkin replied as follows:

Mr. HENKIN. No, I didn't -- wouldn't limit that to sergeants standing next to any kind of exhibits. I knew -- I thought we were discussing speeches and all.

But this is how the sequence was shown over the air:

Mr. MUDD. Well, is that the sort of information about the drug problem you have and the racial problem you have and the budget problems you have -- is that the sort of information that gets passed out at state fairs by sergeants who are standing next to rockets?

Mr. HENKIN. No. I wouldn't limit that to sergeants standing next to any kind of exhibits. Now, there are those who contend that this is propaganda. I do not agree with this.

The second sentence of Mr. Henkin's actual answer -- the part about "speeches and all" -- had been omitted. And the "new" material -- about propaganda -- came from an earlier point in the interview and was in fact a reference to charges that the Pentagon was using talk of an "increasing Soviet threat" as propaganda to influence the size of the military budget. n2

n2 An inquiry has been made concerning a third aspect of "The Selling of the Pentagon" in connection with edited coverage of a news briefing of Pentagon reporters by Deputy Assistant Secretary of Defense Jerry Friedheim. The facts are that CBS recorded the entire session, with answers to approximately 34 questions: only six questions and answers were shown in the documentary and, of these six, three answers were of the "no comment" type -- the only such answers Mr. Friedheim gave during the entire briefing. mr. Henkin asserts that answers to any of the "no comment questions" would have "revealed classified national security information." Coverage of the briefing followed comments by Mr. Mudd to the effect that Mr. Friedheim, as a "careful and respected adversary" of Pentagon reporters, does not "tell all he knows" and "wouldn't have his job long if he did."

POLICY CONSIDERATIONS AND CONCLUSIONS

In view of all the facts at our disposal, we conclude that further action by this Commission would be inappropriate -- and not because the issues involved are insubstantial. Precisely to the contrary, they are so substantial that they reach to the bedrock principles upon which our free and democratic society is founded. Our basis for this conclusion is set forth in prior Commission rulings, of which two are particularly apposite: In re Complaints Concerning CBS Program, Hunger In America, 20 FCC 2d 143 (1969), and Network Coverage of the Democratic National Convention, 16 FCC 2d 650 (1969).

Lacking extrinsic evidence or documents that on their face reflect deliberate distortion, we believe that this government licensing agency cannot properly intervene. It would be unwise and probably impossible for the Commission to lay down some precise line of factual accuracy -- dependent always on journalistic judgment -- across which broadcasters must not stray. As we stated in the Hunger in America ruling, "the Commission is not the national arbiter of the truth" (20 FCC 2d at p. 151). Any presumption on our part would be inconsistent with the First Amendment and with the profound national commitment to the principle that debate on public issues should be "uninhibited, robust, [and] wide-open" (New York Times Co. v. Sullivan, 376 U.S 254, 270). It would involve the Commission deeply and improperly in the journalistic functions of broadcasters.

This function necessarily involves selection and editorial judgment. And, in the absence of extrinsic evidence, documentary or otherwise, that a licensee has engaged in deliberate distortion, for the Commission to review this editing process would be to enter an impenetrable thicket. On every single question of judgment, and each complaint that might be registered, the Commission would have to decide whether the editing had involved deliberate distortion. Although we can conceive of situations where the documentary evidence of deliberate distortion would be sufficiently strong to require an inquiry -- e.g., where a "yes" answer to one question was used to replace a "no" answer to an entirely different question -- we believe that such a situation is not presented here.

We are not saying that CBS' or any other broadcaster's editional judgment is above criticism. As we said in Hunger in America (20 FCC 2d at p. 151), allegations of distortion "should be referred to the licensee for its own investigation and appropriate handling." And again:

... [We] stress that the licensee must have a policy of requiring honesty of its news staff and must take reasonable precautions to see that news is fairly handled. The licensee's investigation of substantial complaints... must be a thorough, conscientious one, resulting in remedial action where appropriate.

Our point is that this licensing agency cannot and should not dictate the particular response to thousands of journalistic circumstances. Above all, we affirm that we must "... eschew the censor's role, including efforts to establish news distortion in situations where government intervention would constitute a worse danger than the possible rigging itself." But to say that such intervention would be a remedy far worse than the disease is not to say that we can afford to shrug off the deeper questions involved.

This Commission is charged with "... promoting the public interest in the larger and more effective use of radio" (Section 303(g) of the Communications Act). Surely there is no issue bearing more heavily on the public service role of broadcasting than the integrity of the licensee's news operation.

We have allocated so much spectrum space to broadcasting precisely because of the contribution it can make to an informed public. Thus it follows inevitably that broadcasting must discharge that function responsibly, without deliberate distortion or slanting. The nation depends on broadcasting, and increasingly on television, fairly to illumine the news.

We particularly urge the need for good faith, earnest self-examination. In our view, broadcast journalists should demonstrate a positive inclination to respond to serious criticism. Indeed, Mr. Chairman, the thrust of your and other congressional inquiries -- reflected also in criticism in print media -- was to raise questions about the editing process, particularly with respect to the Henkin interview.

It seems to us that CBS has failed to address the question raised as to splicing answers to a variety of questions as a way of creating a new "answer" to a single question. The very use of a "Question and Answer" format would seem to encourage the viewer to believe that a particular answer follows directly from the question preceding. Surely important issues are involved here, ones that every broadcast journalist should ponder most seriously.

What we urge -- because we believe it will markedly serve the public interest -- is an open, eager and self-critical attitude on the part of broadcast journalists. We urge them (as we did in Hunger in America, cited above) to examine their own processes, to subject them to the kind of hard critical analysis that is characteristic of the best traditions of the journalistic profession.

Our objective is to encourage broadcast journalism, not to hurt or hinder it. We have made clear in the past that the Commission seeks a larger role for broadcast journalism, including newscasts and documentaries. We reiterate that commitment today. For what ultimately is at stake in this entire matter is broadcasting's own reputation for probity and reliability, and thus its claim to public confidence.

In view of the foregoing discussion, we do not propose to inquire of CBS as to the second issue referred to on p. 2, supra. A copy of this letter will be sent to CBS so that it is informed fully of the Commission's position in this important area. We shall, of course, also keep you informed of any further developments as to the application of the fairness doctrine.

This letter was adopted by the Commission on April 28, 1971.

Commissioners Burch, Chairman, and Johnson issuing separate statements.

BY DIRECTION OF THE COMMISSION, DEAN BURCH, Chairman.

CONCURBY: BURCH; JOHNSON

CONCUR:

SEPARATE STATEMENT OF CHAIRMAN DEAN BURCH

As Commission Chairman, I feel I must address one further aspect of this case. In my view, Commissioner Johnson should not have participated in the decision.

The role of a Commissioner is both varied and difficult. At times in general rule making proceedings, a Commissioner is a quasi-legislator, with considerable freedom to speak out publicly on broad policy considerations. At other times, a Commissioner acts in adjudicatory proceedings, and then his role is quasi-judicial -- that is, akin to that of a judge. And, at all times, a Commissioner must strive to act in a fair and impartial manner. Indeed, "... to perform its high functions in the best way, 'Justice must satisfy the appearance of justice'..." (In re Murchison, 349 U.S. 133, 136).

The "Selling of the Pentagon" aroused a storm of controversy, with Administration spokesmen, Congressmen, and many others speaking out on one side or another. On March 5 and March 9, respectively, Chairmen Hebert and Staggers filed their letters with the Commission, raising questions as to the fairness of the program and whether it contained distortions in view of the DOD charges. Thus, from early March on, this was an adjudicatory case -- one which we knew we would be called upon to decide as judges.

Commissioner Johnson was therefore clearly on notice as to the adjudicatory posture of this matter. Yet at this point, he authored an article in the Washington Post, March 28th, entitled, "A Defense of TV vs. the White House," whose initial thrust is to defend the program in question. Indeed, the article opens by asserting that CBS News "... has rightfully come in for special praise for its February 23rd showing...", then quotes the praise given the program by two reviewers, and states that "this evaluation and praise were shared by most of the nation's television critics...".

Commissioner Johnson has a perfect right to speak out on this or any other controversial issue. But he cannot have it both ways. He cannot be both a public advocate -- defending the program in print -- and then sit as a judge on charges alleging unfairness and distortion in the program.

I do not say that Commissioner Johnson's personal views in any way colored his decision. Indeed, by whatever routes, both of us reached the same conclusions. I am saying that this Commission has an obligation beyond the mere absence of demonstrable bias; it must avoid even the appearance of bias. In his dual role of advocate and judge, Commissioner Johnson falls short of that standard and thus diminishes the Commission's standing. Having freely chosen the role of a public advocate, Commissioner Johnson should have refrained from that of a judge.

SEPARATE STATEMENT OF COMMISSIONER NICHOLAS JOHNSON

In my judgment, it is very important that cases of this kind -- cases involving partisan considerations because of the involvement of the President or the Vice President (as here) or a political party's national convention (as in Democratic National Convention, 16 F.C.C. 2d 650 (1969)) -- be decided in as non-partisan a fashion as possible by the Federal Communications Commission.

The kinds of compromises involved in producing unanimous decisions without separate opinions in such cases all tend to enhance the credibility of the FCC's participation in these highly charged political areas. See, DNC, supra; Hunger in America, 20 F.C.C. 2d 143 (1949); and the networks' "analysis" of President's Nixon's November 3, 1969, speech (115 Cong. Rec. 34042 (Daily Ed., Nov. 13, 1969)) and Vice President Agnew's attack, Letter to Mrs. J. R. Paul, 26 F.C.C. 2d 591, 592 (1969).

And so it is that I am extremely pleased that the Commission was able in this case -- after considerable effort from my fellow Commissioners, Republican and Democrat alike -- to arrive at a document upon which we could all agree unanimously.

Similarly, I am distressed that Chairman Burch would use such a case (rather than a speech or some other forum -- if he simply must launch an unsupportable attack) to exacerbate, rather than minimize, our partisan differences. In the normal course of events, as in the majority of the actions taken by this Commission, I would go out of my way to avoid preparing a Separate Statement in a case such as this. However, in view of Chairman Burch's unprecedented attack upon a fellow Commissioner -- his unusual Separate Statement charging me with "the appearance of bias" -- I believe it is necessary for me to take the time to prepare and publish a detailed and serious discussion of the applicable law of administrative prejudgment and judicial bias, and to explain the reasons for my participation in this case.

After the first showing of the CBS News' award-winning documentary, "The Selling of the Pentagon," n1 and Vice President Agnew's subsequent attack upon it, Address of the Vice President, Boston, Massachusetts, March 18, 1971, New York Times, March 19, 1971, at 79, col. 1; New York Times, March 21, 1971, at 30, col. 1, but before formal complaints about the program had been brought to the Commissioners' attention, I wrote a syndicated article about the Vice President's attack. See, "A Defense of TV vs. White House," The Washington Post, March 28, 1971, pp. B1, B4, repr'ted in 117 Cong. Rec. 4410 (Daily Ed., April 1, 1971), and see also, e.g., "Agnew Casts Chill Over the Networks," Chicago Sun-Times, March 28, 19718 pp. 1-2, § 2. (The full text of the article is set out in Appendix I.) Although I can understand why Chairman Burch -- and the White House -- would not like the article, I believe it to be factually accurate and -- more to the point -- it in no sense deals with the merits of the complaints before us.

n1 The Columbia Broadcasting System's documentary, "The Selling of the Pentagon," was awarded a special 1971 Peabody Prize for "electronic journalism at its finest." Gould, "Selling of Pentagon" Wins Special Peabody Prize, N.Y. Times, April 13, 1971. The documentary has also won an Emmy Award for outstanding achievement in news documentary programming. 117 Cong. Rec. S7076 (Daily Ed., May 17, 1971). The detailed story of the controversy swirling about documentary and electronic journalism, including reports of government intimidation, has been told by The Nation's Washington correspondent. Robert Sherrill. See, Sherrill, The Happy Ending (Maybe) of "The Selling of the Pentagon," N.Y. Times Magazine, May 16, 1971, at 25.

On the basis of these facts, Chairman Burch believes that I should not have participated in the decision the Commission ultimately reached concerning "The Selling of the Pentagon." On March 5 and 9, 1971, the Chairman argues, Congressmen filed letters with the Commission raising questions "as to the fairness of the program and whether it contained distortions." The Chairman strains to style this as an "adjudicatory case." Citing In re Murchison, 349 U.S. 133 (1954), the Chairman concludes:

I am saying that this Commission has an obligation beyond the mere absence of demonstrable bias; it must avoid even the appearance of bias. In his dual role of advocate and judge, Commissioner Johnson should have refrained from that of a judge. (Emphasis in original.)

It is hard to attack the Chairman's rhetoric. No one I know urges that regulatory commissioners be biased, or appear to be biased -- certainly I don't. Unfortunately, it takes a little explanation of the law and the facts of this case to understand what the Chairman is doing. And, for starters, it is important to stress that the Chairman is simply dead wrong on the law. The shaky notions he advances do not begin to rise to the dignity of an established relevant proposition of law. This is so even in a strict adjudicatory setting, which, as I will show in detail below, does not come close to including the instant case.

It is useful to begin by stating what the law actually does require. This has been succinctly stated by Professor Davis, the administrative law authority, who writes in his treatise:

Prejudgment of adjudicative facts is not necessarily a ground for disqualification. The holdings are almost uniform that a judge who has announced his findings of fact is not disqualified to hear the case a second time after a remand, and these holdings are generally applied equally to the administrative adjudicator. Prejudgment of fact bearing on law or policy is no more a disqualification than prejudgment of philosophy about law or policy. Davis, Administrative Law Treaties, § 12.06, at 169 (1958).

The law plainly gives administrative adjudicators considerably more leeway than the Chairman is willing to concede.

The article in question here is, in my judgment, well within the bounds of appropriate comment by FCC Commissioners. The article did not even deal with -- let alone prejudge -- the issues or the facts before us in the controversy raised by "The Selling of the Pentagon": (a) Whether a Fairness Doctrine question was involved, and (b) the ethics of interview editing. The article deals with the far largr question of the current Administration's use and abuse of television -- "managed news," as some have phrased it. My references to "Selling" itself were oblique and cursory at most; only 4 paragraphs of a 34 paragraph article even alluded to the program. In no instance did I refer (even indirectly) to the facts or issues raised by the Congressmen in their letters of complaint to the Commission.

Consequently, I do not feel any need -- as a matter of law or conscience -- to disqualify myself from joining with my colleagues on this case because of that article. See, e.g., In re Chronicle Broadcasting Co., 20 F.C.C. 2d 33 (1969); and Bell Disqualification, 26 F.C.C. 2d 523 (1970).

Charges of "bias," allegations of "prejudgment," suggestions that a Commissioner would better have "disqualified" himself are serious charges indeed. I do not accept them lightly. I am saddened, but not shocked, when they come from parties with vested economic interests in our proceedings -- broadcasters and the telephone company. It's hard to know what to make of such charges coming from the Chairman of this Commission. I have never raised such charges against a fellow Commissioner, and I would do so only in extreme reluctance. Wild charges of bias are easily released. Judicious replies can never fully return them to the barn.

One must assume that the Chairman's charges, however frivolous on their face, were in fact advanced in earnest. The Chairman's insinuations, his misconceptions of existing law, and even his own would be theory of what the law in this troublesome area ought to be, are all so baseless (yet so central to the stuff of what a Commissioner can and should do) that I cannot let his bold assertions pass without the vigorous discussion -- and outright rejection -- they so clearly invite.

The Chairman's opinion errs in at least three major respects:

1. Despite the Chairman's flat assertions (backed by not a single citation of authority), this is clearly not the kind of adjudicatory proceeding invoking the application of any of the case law of administrative bias;

2. Despite the Chairman's runaway rhetoric (again devoid of any authoritative citation), he conveniently manages to ignore all of the law of bias and prejudgment as it has been worked out by the courts (that would have been applicable had this been an adjudicatory proceeding);

3. Furthermore, even if the Chairman's proposed test of "appearance of bias" were an established proposition of law in this area (which it manifestly is not), such a proposition would be far too confining -- and it would render the Chairman himself guilty of the very transgression he charges to others.

III

From all appearances, the Chairman's suggestion that I disqualify myself are unprecedented in administrative law. I and my staff may have overlooked a case, but our searches of the reports reveal no instance in which the Chairman of a Commission has ever successfully maintained such a challenge against his colleagues -- or, for that matter, even cast such aspersions their way.

Not surprisingly, since the challenge is novel, there exist no procedures for dealing with such assertions. Perhaps the architects of our administrative law intended it this way. Perhaps they saw little use even bothering with such frivolity.

We do know that before the Administrative Procedure Act of 1946, 60 Stat. 237, 5 U.S.C. § § 551-559, 701-706; 3105, 3344, 5362, 5721 (1967), the method for disqualifying an administrative adjudicator was not even vaguely clear, except for the general assumption that questions of disqualification could be raised on judicial review. Davis, Administrative Law Treatise, § 12.05, at 167 (1958). The Federal Communications Commission did hold a few decades ago that the full Commission could prevent a Commissioner from participating, over the objection of that Commissioner, in a case involving personal animus against the plaintiff's attorney. In the Matter of Segal and Smith, 5 F.C.C. 3 (1937).

Today such matters appear to be covered, if at all, by the Administrative Procedure Act. Referring to presiding officers and officers participating in decisions (including Commissioners), Section 7(b) of the APA provides:

Any such officer may at any time withdraw if he deems himself disqualified; and, upon the filing in good faith of a timely and sufficient affidavit of personal bias or disqualification of any such officer, the agency shall determine the matter as a part of the record and decision in the case. (Emphasis added.) Sec. 7(b), Administrative Procedure Act, 5 U.S.C. § 556 (1967).

The term "personal bias" is the same as the term used in the Federal statute on disqualification of judges, which has been read to mean that an "impersonal prejudice" is not enough. Price v. Johnston, 125 F.2d 806 (9th Cir.), cert denied 316 U.S. 677 (1942).

Clearly, then, the legal machinery for disqualification of administrative adjudicators is strictly limited to clear cases of personal -- rather than policy or factual -- bias. Furthermore, administrative adjudicators, unlike Federal district judges, are not forced to withdraw upon the mere filing of an affidavit (perhaps covering a complaint like the Chairman's in this case). "The truth and sufficiency of the charges must be established before the agency to force a disqualification of an administrative officer." Davis, Administrative Law Treatise, § 12.05, at 167 (1958).

Since the Chairman has merely filed the loosest sort of "affidavit" in this case, which has not been "established before the agency" (i.e., adopted by the full Commission -- or, indeed, endorsed by any other Commissioner), my participation in this particular case comports with the Administrative Procedure Act.

One of the Chairman's most disturbing errors is his abuse of the word "adjudication." The Chairman concludes: "this was an adjudicatory case -- one which we knew we would be called upon to decide as judges." Putting aside the fact that we did not know, at the time I wrote the article, "we would be called upon to decide as judges" the case before us, the Chairman's statement appeals far more to emotion than to the law and facts of this case.

The Administrative Procedure Act governs the relevant definitions. 47 C.F.R. 1.201(b). It divides the world of administrative proceedings into two spheres, one called "rulemaking" and the other "adjudication." The APA then speaks of two distinct kinds of "adjudication."

1. The first reference the APA makes to "adjudication" is in Section 2, the "Definitions" section of the statute. Section 2(7) says "adjudication means agency process for the formulation of an order." 5 U.S.C. § 551 (1967). This is a broad, general reference; commentators have sometimes called this informal adjudication, and it is generally thought to apply to all agency activities that are not rulemaking.

2. The other distinct kind of "adjudication" the APA speaks of is the full "adjudicatory hearing" as defined in Section 5 of the Act. U.S.C. § 554 (1967). This limits adjudications to those "required by statute to be determined on the record after opportunity for agency hearing." Id. This "adjudicatory hearing" involves characteristics of the classic kind of trial between private litigants over private rights. The adjudicatory hearing has come to embody a notice of hearing, a hearing examiner, evidence taken on the record, review by the appellate levels within the Commission, and final review by the Commissioners themselves.

In communications law, when the term "adjudication" is used, it normally is thought to mean the kind of "adjudicatory hearing" defined in Section 5 of the APA. Cf., Communications Act of 1934, 47 U.S.C.A. § 309(a), Ashbacker Radio Corp. v. F.C.C., 326 U.S. 327 (1945). The Commission's own rules lend considerable support to this contention, for the rules are drafted in such a way that the term "adjudication" is used only in connection with general matters under the rubric "Hearing Proceedings." See, 47 C.F.R. 1.201, 38 F.R. 12425, Nov. 22, 1963. n2

n2 The rule provides that: "This subpart shall be applicable to the following cases which have been designated for hearing:

(a) Adjudication (as defined by the Administrative Procedure Act); and (b) Rulemaking proceedings which are required by law to be made on the record after opportunity for a Commission hearing." 47 C.F.R. § 1.201 (1970).

We must keep in mind, then, the law's fundamental distinction between (a) informal adjudication and (b) the far more formal "hearing adjudication." This the Chairman has failed to do.

What the "Selling" controversy clearly involves is an informal adjudication. Under the Commission's own rules, 47 C.F.R. § 1.41, I believe the matter would be more correctly styled (and with much less confusion) as an "informal request for Commission action." n3 Just as clearly, this is not a "hearing adjudication" involving the hearing examiner process set forth above.

n3 The rule states: "Except where formal procedures are required under the provisions of this chapter, requests for action may be submitted informally. Requests should set forth clearly and concisely the facts relied upon, the relief sought, the statutory and/or regulatory provisions (if any) pursuant to which the request is filed and under which the request is filed and under which relief is sought, and the interest of the person submitting the request." 47 C.F.R. § 1.41 (1970).

So the Chairman has attempted to apply the law of administrative bias and prejudgment to an "informal adjudication." He cites no authority for this because there is none. What little law we do have on administrative bias and prejudgment has been very precisely limited to the more formal "hearing adjudication" situations. Cf. e.g., Texaco, Inc. v. F.T.C. 336 F. 2d 754 (D.C. Cir. 1964), and Cinderella Career and Finishing Schools, Inc. v. F.T.C., 425 F. 2d 583 (D.C. Cir. 1970).

The Chairman complains that I cannot be "both a public advocate -- defending the program in print -- and then sit as a judge on charges alleging unfairness and distortion in the program." Even if I did discuss issues in print that subsequently were raised in an informal complaint to the Commission (and I manifestly did not "defend the program in print" in this sense), it still would be hornbook law that the Chairman is dead wrong. Professor Davis writes:

The controlling cases have held, with only a few exceptions, that the combination with judging or prosecuting or investigating does not deny due process. Davis, Administrative Law Treatice, § 13.11, at 248 (1958).

The Chairman to the contrary notwithstanding, administrative adjudicators can have it both ways.

The Administrative Procedure Act and its legislative history lend support to the argument that Congress affirmatively intended to approve the combination of advocating and judging. Congress apparently endeavored to deal comprehensively with the whole question of separation of functions. Yet the Act not only says nothing of advocacy other than prosecuting, but the Act limits the separation-of-functions requirements strictly to "hearing adjudications," something far afield from what is involved in the "Selling" complaint. Cf., Davis, supra, § 13.10 at 236.

The Chairman has attempted to make new law with his definition of "adjudication." But such efforts are never successful without dealing with -- and then overthrowing through superior argument -- the old applicable law. Here again the Chairman has failed.

The Chairman's error is one of neglect. He conveniently ignores all of the applicable law of bias and prejudgment. I need not reiterate here my prior comprehensive discussions of the governing case law. See In re Chronicle Broadcasting Co., 20 F.C.C. 2d 33 (1969), and, more specifically, Bell Disqualification, 26 F.C.C. 2d 523, 529-39 (1970). It is sufficient for this case to restate the relevant part of the celebrated Morgan litigation.

After the U.S. Supreme Court held in the second Morgan case, Morgan v. U.S., 304 U.S. 1 (1938), that the U.S. Secretary of Agriculture had denied due process to the market agencies of the stockyards in a rate-setting proceeding, the Secretary vigorously criticized the Supreme Court decision and the parties in a letter to the New York Times. In the fourth Morgan case, 313 U.S. 409 (1941), the market agencies charged that this letter disqualified the Secretary as an adjudicator from reconsideration of the case on remand to him. Mr. Justice Frankfurter wrote, for the Court, id. at 420-421:

That he [the Secretary of Agriculture] not merely held but expressed strong views on matters believed by him to have been in issue, did not unfit him for exercising his duty in subsequent proceedings ordered by this Court. As well might it be argued that the judges below, who had three times heard this case, had disqualifying convictions... Cabinet officers charged by Congress with adjudicatory functions are not assumed to be flabby creatures any more than judges are. Both may have an underlying philosophy in approaching a specific case. But both are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.

If a critical letter in the New York Times which specifically did address the issues in a case before him did not disqualify the Secretary of Agriculture, I fail to see how a general article in the Washington Post -- which did not address the issues, in a case not before the Commissioners -- could disqualify a Federal Communications Commissioner.

The Chairman's final error is that he has failed to think through his own proposed test of "appearance of bias." As we shall see momentarily, the irony is that if "appearance of bias" were an established proposition of law (which it isn't) it would render the Chairman himself guilty of the very transgressions he charges to others.

The Chairman finds his "appearance of bias" test, apparently, in the lone case he cites, In re Murchison, 349 U.S. 133, 139 (1954). The Chairman writes:

At other times, a Commissioner acts in adjudicatory proceedings, and then his role is quasi-judicial -- that is, akin to that of a judge. And, at all times, a Commissioner must strive to act in a fair and impartial manner. Indeed, "... to perform its high functions in the best way, 'Justice must satisfy the appearnace of justice'..." [Cite Omitted].

What the Chairman offers is non sequitur. The Chairman's case, In re Murchison, is rarely cited in administrative law -- no doubt because its facts are far afield from administrative law. In re Murchison involved a Michigan state judge (not a quasi-judicial official) who served as a "one-man grand jury" under Michigan law. Later, the same judge, after a hearing in open court, adjudged two of the witnesses guilty of contempt and sentenced them to punishment for events which took place before him in prior grand jury proceedings. The Supreme Court held that the witnesses' trial and conviction for contempt before the same judge violated the Due Process Clause of the 14th Amendment. Just to help clear the air, it is helpful to study the full text of the majority's opinion, written by Mr. Justice Black, at 136:

A fair trial in a fair tribunal is a basic requirement of our process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to present even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision; circumstances and relationships must be considered. This Court has said, however, that "every procedure which would offer a possible temptation to the average man as a judge... not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." Tumely v. Ohio, 273 U.S. 510, 532. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function is the best way "justice must satisfy the appearance of justice." Offutt v. U.S., 348 U.S. 11, 14 (1954).

Offutt was a criminal trial in a Federal District Court in which the judge became personally embroiled with the defense counsel in a protracted wrangle. The judge displayed personal animosity and lack of proper judicial restraint. The U.S. Supreme Court simply held that when a trial judge becomes personally embroiled with the contemptor, he must step aside in favor of another judge -- another instance of alleged personal bias.

In sum, this line of cases (In re Murchison, Offutt, etc.) clearly strike at the "judge-grand jury" problem -- where the sole judge is the sole grand juror. These involve criminal matters in Federal District Court and state courts and plainly have nothing at all to do with allegations of policy or factual bias in informal adjudications in administrative agency proceedings -- where the legislative, prosecutorial and judicial functions have been deliberately combined in the same men. The appearance test has been spoken of in dictum in administrative law cases, e.g., Amos Treat & Co. v. S.E.C., 306 F. 2d 260, 267 (1962) (an administrative adjudication "must be attended, not only with every element of fairness but with the very appearance of complete fairness"), though this has always been held strictly to formal adjudicatory hearing situations. Id. Perhaps the best that we can extract from the line of cases the Chairman's citation of In re Murchison suggests to us are Mr. Justice Frankfurter's words in Offutt v. U.S., 348 U.S. at 15: "We do not mean to imprison the discretion of judges within rigid mechanical rules. The nature of the problem precludes it."

We can quickly see why the across-the-board application of any "appearance of bias" standard would in fact work out to be an impossibly "rigid mechanical rule," to use Mr. Justice Frankfurter's phrase, if we examine three specific situations in which the Chairman finds himself in the "Selling" case before us.

No one has charged the Chairman with bias or prejudgment in the case now before us. I certainly do not do so now. Yet each of these three situations illustrate the problem; for each raises at least the "appearance" of sufficient bias that it would be hard to justify the Chairman's participation in the case before us, I believe, under the very standards the Chairman proposes.

1. One of the options clearly before the Commission in the "Selling" controversy was the issuance of a Commission subpoena similar to the one issued by the House Subcommittee. Such an alternative has been considered by the Commission in other cases when the question of distortion has been raised. The Commission could also have concluded that CBS' responsibility as a Commission licensee included full cooperation with an investigation begun by the Congressional committee. Prior to the time the Commission issued its order in this proceeding, and thus finally rejected those possibilities, Chairman Burch appeared on a television station in his home state to oppose the subpoena of reporters' notes, a position I also hold. (See "Subpoenas, Outtakes, and Freedom of the Press: An Appeal to Media Management," Washington Nieman Fellows, Washington, D.C., Feb. 12, 1970, F.C.C. 44618, rep'ted in part, "Stations Are Standing By While News Is Threatened," Television/Radio Age, April 6, 1970, p. 69, 114-132.) The Chairman included in that category the type of material that the Commission could have requested and that the House subcommittee in fact was requesting. See, FCC's Burch Opposes Staggers' News Subpoena, Variety, April 28, 1970, at 41.

2. No one suggests that Chairman Burch is one of those "traveling colonels" described by CBS in "The Selling of the Pentagon." But the fact is that he still holds the rank of Lieutenant Colonel in the U.S. Army's Judge Advocate General's Corps Reserve (now retired) and that, until very recently, he was paid by the Pentagon for his two week summer services. One could question the propriety of the "appearance" of Pentagon lawyer Lt. Colonel Burch sitting in judgment of matters involving the Pentagon. What perhaps is more relevant, in this instance there is court precedent. The U.S. District Court for the District of Columbia has recently indicated serious concern about reserve commissions. The District Court, in Reservist Committee to Stop the War v. Laird, 39 U.S. Law Week 1153 (1971), held that reserve commissions do not just create problems of "appearance," they are constitutionally incompatible with holding congressional office. As an "arm of Congress" executing judicial responsibilities, it might well be argued such standards are at least equally, if not more, applicable to commissioners.

3. Conceivably one could also be disturbed by the heightened "political" atmosphere about the Commission these days. A front-page headline in the trade press expressed this alarm in some quarters of the communications industry. Michie, FCC and the Political Heat; Every Issue Has Partisan Twist, Variety, April 21, 1971, at 1. n4 With such a prevailing mood, one would think that the Chairman's concern for "appearances" -- because of his service as Chairman of the Republican National Committee from July 1964 to April 1965 -- would logically lead to the Chairman disqualifying himself in this case, and others, where President Nixon, Vice President Agnew, RNC Chairman/Senator Dole, and others pursue a hard partisan line.

n4 This trend is also documented by reports in the general press. Witness this front-page headline in the Wall Street Journal, April 28, 1971, at 1, col. 1:

Running Scared

MANY IN BROADCASTING

FEAR THE RISING ATTACK

FROM THE GOVERNMENT FLAPS OVER 'PENTAGON' SHOW, DRUG LYRICS STIR CONCERN: ARE LICENSEE IN JEOPARDY?

THE SUBTLE ROLE OF MR. NIXON

The Journal's article contains this paragraph: "Along with presidential praise, broadcasters are getting subtle reminders in private White House talks that the administration could hel in certain situations affecting their economic well-being, such as their battle with the cable-television industry. What's implicit is that they won't fare as well if they incur White House displeasure." Id.

The same sentiment has been reported by Robert Sherrill, supra Note 1, at 78, 87:

"So when Vice President Agnew says publicly that 'the views of this fraternity [television network newsmen] do not represent the views of America' and 'perhaps it is time that the networks were made more responsive to the views of the nation' -- the corporate ear picks up that word 'made,' which automatically triggers the awareness that a majority of the members on the F.C.C. now belong to the same party that controls the White House, and the network men sit up a bit straighter. * * *

"Correctly or not, many in the industry feel that the Administration -- as well as its allies in Congress -- is using the license threat as a club to get more favorable news coverage. Salant [Richard Salant, President, CBS News] says, 'There is coercion and intimidation here, for Government intervention and coercion can take a multiude of sinister forms other than naked censorship.'"

As I have made clear, I am not suggesting that the Chairman should disqualify himself because of the three situations set forth above. I do not suggest that making a televised statement during the pending of the "Selling" complaint -- a statement that goes to the heart of the issues the Commission had to consider -- constitutes grounds for asking the Chairman to withdraw from the case. I do not suggest that his role as a Lieutenant Colonel in the Army Reserve, or his role as former Chairman of the Republican National Committee, necessarily closes his mind to a judicial posture in the case before us.

From the networks' point of view, perhaps the most impressive techniques of intimidation have been these --

Forcing the news departments into enormously costly and time-consuming defenses of their programs.

Attempting to create a kind of civil war between the networks and their affiliates.

Maintaining a constant war of nerves with both the networks and their affiliates, letting them know that somebody with the power to punish is watching from Washington...

A dozen other top CBS officials, including Salant, have been spending as much as three-fourths of their time in the same way, every day, preparing either for a Congressional hearing or a fight with the FCC, or both. Final cost of the defense of "Selling" is expected to exceed $100,000 -- as much as the show cost to produce in the first place.

What I am suggesting, however, is that the Chairman "cannot have it both ways." He cannot manufacture a dubious proposition of law -- the "appearance of bias" -- to slosh about upon others without getting some of it upon himself. And once the Chairman's standard is applied to his own conduct, we readily see why the courts and the commentators have steadfastly refused to impose such a strict "appearance" test on the difficult role (judicial, legislative, prosecutorial and executive) any Commissioner is required by law to perform.

VII

My own guiding philosophy in approaching matters of bias and prejudgment -- including their appearance -- has been best summed up in Mr. Justice Cardozo's incisive reminder that judicial officers "do not stand aloof on... chill and distant heights." Cardozo, The Nature of the Judicial Process 168 (1921). Especially is this so for regulatory commissioners. However, in deciding the adjudicatory matters before us -- as well as all other issues -- I believe I have been as fundamentally fair, open and unbiased as any Commissioner, and that my voting record and opinions will support that assertion. At the very least, my conduct has been well within the requirements of law.

It is not an easy task to respond to charges of this kind -- especially from one's colleagues. What takes one page and a few moments to allege takes a lengthy opinion and weeks of preparation to answer. But I do believe such charges must be taken seriously and responded to fully -- whatever the personal burden upon me and my limited staff may be.

VIII

Because my article in no way dealt with the fairness or editing issues raised by the Congressmen in their letters of complaint to the Commission; because it was written before the complaints were brought to the Commissioners' attention; because the case is clearly not the kind of adjudicatory proceeding invoking the application of any of the case law of administrative bias; because of Commissioners' obligation to play many roles other than those of judge; because the Chairman's "appearance of bias" test is not an established or workable proposition in administrative law; and because we ended up supporting precisely the same unanimous position in this case on the merits anyhow, I conclude that no grounds exist for my stepping aside in this or similar cases.

A DEFENSE OF TV vs. WHITE HOUSE

(By Nicholas Johnson, a member of the Federal Communications Commission)

CBS News, generally recognized as one of the word's finest electronic news organizations, has rightfully come in for special praise for its Feb. 23 showing of "The Selling of the Pentagon." The subject matter was scarcely new or shocking -- much of it had been most recently detailed in Sen. J. W. Fulbright's "The Pentagon Propaganda Machine" -- but it was an unusual event for American television.

The Washington Post's William C. Woods called it "a gutty and intelligent show." The New York Times' Jack Gould said it was "brilliant... uncompromising... brave and skillful... one of the best (documentaries) on TV in a great many years." Their evaluation and praise were shared by most of the nation's television critics and, for that matter, politicians.

But not Spiro Agnew. President Nixon's resident television critic and censor has now come out with the official administration line on the show. The Vice President has proclaimed it a "subtle but vicious broadside against the nation's defense establishment.

Now that the elections backlash has subsided, the old Nixon has the old Agnew back at the same old stand: Clobber the commentators, needle the newsmen and edit the editors just as soon as the Fourth Estate shows signs of refusing to Dole out the administration line on this or that Nixon/Agnew policy.

This tactic is well recognized. We used to call it "managed news." Nowadays, managed news appears to be shading into a far more nefarious strategy: patent propaganda.

President Nixon is the most accomplished example of government by television; he has used it more consciously and in a more wide-ranging way than any prior President. This refers not only to his prime time "specials" and exclusive interviews; the administration is moving in on the entertainment shows as well, and even -- with the help of the FCC earlier this month -- the music. But the most obvious part of the strategy remains the frontal assaults.

The Nixon/Agnew Des Moines speech no Nov. 13, 1969, rocketed into public consciousness many questions about the role of television in contemporary society. A resulting dialogue and awareness could have been quite healthy. But those who applauded that blast -- on the grounds that the networks deserve everything that is thrown at them -- soon came to deplore the consequences they saw on their television screens.

It wasn't funny any more. Nixon/Agnew weren't interested in a dispassionate professional evaluation of media performance. (Former and current CBS men like Ed Murrow, Fred Friendly, Alexander Kendrick and Walter Cronkite have written far more criticism of their own profession -- tough, insightful, professional criticism -- than Agnew has ever read. Journals like the Columbia Journalism Review do it on a regular basis.)

When Nixon/Agnew criticize ownership patterns, it is the media ownership of those whose views they dislike. When they comment on the "professionalism" of television reporters, they only go after those who are unfavorable. (The White House went after Frank Reynolds with the same vengeance it used on Sen. Charles E. Goodell -- and some believe with the same success, although ABC vehemently denies that 12 months of White House dossier on Reynolds had anything to do with his removal.)

The Freedom of Information Committee of Sigma Delta Chi, the professional journalistic society, recently concluded: "If this first year after his Des Moines speech is the beginning of the Age of Agnew in journalism, it does not portend to be a pleasant year for the journalist."

A 'CHILLING EFFECT'

The Agnew-induced cowardice in the networks has produced some of the "chilling effect" on free expression that the administration was out to encourage -- and that the Supreme Court has used as a standard for governmental actions violative of the First Amendment. The mortality rate for network documentaries seemed unusually high after Des Monies.

A few days after Des Monies, on Nov. 15, 1969, the networks provided only spotty coverage of by far the largest march on the White House in American history. Upward of 500,000 angry Americans flooded Washington to protest the Indochina war; everyone was there, it seemed, except the President and the network newsmen. David Brinkley -- among others in electronic media -- later acknowledged that this was an unfortunate decision.

Contrast this with the lavish coverage of Bob Hope's Honor America Day eight months later. There was no protest then from the Vice President; the President was obviously pleased to have the networks busy themselves with the apple pie view of America. Picking up the spirit of the times, ABC Sports banned halftime coverage of the Buffalo-Holy Cross football game because it had to do with the "controversial" subject of peace but provided a nationwide audience for the chairman of the Joint Chiefs of Staff to say a few words on behalf of war at the halftime of the Army-Navy game.

The Age of Agnew has brought a rash of chilling incidents. Broadcasting Magazine reported that a major network outlet in the Southwest, which had presented a program supporting the networks against the Agnew blast, was visited twice by several men with the avowed purpose of beating up so-called "anti-Agnew newsmen." The Alfred I. duPont-Columbia University Survey of Broadcast Journalism in 1969-70 reported that other stations in "sensitive areas" were adopting a locked-door policy after office hours.

The Vice President himself is not unaware of the techniques of propaganda. On a swing through Asia last year, he spent 24 hours in Vietnam. The three television networks were limited to a single "pool" camera crew. At the same time, the Agnew entourage permitted the USIA (which later produced a feature film of the trip for worldwide distribution) to have four camera crews. All three networks protested the favored treatment given the government's "propaganda" arm; one network news executive called it an "outrage."

A ONE-TWO PUNCH

What emerges is the overwhelming impression of an administration whose focus is fixed on the little glass screen. President Nixon surrounds himself with advisers whose principal experience is in advertising, public relations and broadcasting; his first appointments to the Federal Communications Commission and related agencies were designed to foster administration control and industry orientation.

The full panoply of governmental power -- including the Vice President, the Justice Department and its subpoenas, the Federal Trade Commission, the FCC, the Pentagon, the Subversive Activities Control Board, the Internal Revenue Service and other agencies -- is potentially available to use on the broadcasting industry in an unprecedented attack on a government-licensed medium. An office of "Director of Communications" -- believed to be the first so denominated outside Communist and fascist countries -- is established in the White House to survey the media and coordinate the attack.

Broadcasters are kept off-balance by the one-two punch of barely camouflaged intimidation and acts of censorship together with the promises of an economic payoff for those who cooperate. President Nixon does not hesitate to seek to exploit commercial television as a channel for administration ideology. The FCC supports boradcasters who restrict the access of nongovernmental groups to TV, and legislation designed to place limitations on campaign financing is vetoed for what appear to be partisan reasons. Television was abused and exploited as never before in the 1970 congressional election campaign.

Broadcasters and record industry executives have been called to the White House -- with the FCC chairman in attendance -- and urged to get "drug lyrics" off the air. The White House called in Hollywood writers and producers to try to get them to insert anti-drug sketches into regular entertainment shows -- which they promptly did. Now the FCC has stepped directly into the act with its order barring rock music "tending to glorify... marijuana."

I do not mean to disparage the very real problems of alcoholism and hard drug usage when I say that the "marijuana problem" has become part of a political diversionary tactic. If you're thinking about pot -- whatever you're thinking about it -- you're not thinking about the land war in Asia, race prejudice, poverty, environmental pollution or any other of the generally acknowledged issues of our time. (It's more than ironic that the other CBS documentary Agnew singled out for attack was "Hunger in America.")

REPORTING THE WAR

This is all deeply disturbing. How long will it be before the drug lyric kind of pep talk from the White House will become standard operating procedure on other vital issues, say the SST (on which an "industry-labor committee" ran a spot campaign), campaign reform on the Laos phase of the Indochina war? No doubt very soon -- particularly if there is likelihood of success.

It is no secret that the administration is deeply disturbed about current reporting of the Indochina war. The network news out of Laos, reporting costly and disappointing progress for the administration's Vietnamization policy, has not squared well with the rosy view of "success" the government propagandists have been trumpeting.

Mr. Nixon's slipping public image and growing credibility gap are to be blamed on the failure of the networks to Dole out the news as the administration would like it portrayed. It is thus not surprising that Nixon/Agnew renewed their attack on the networks from Boston March 18. But what is frightening is the open, brazen effort to affect ideological content. The hypocrisy is crystal clear.

It is not only hypocrisy, but what can most generously be described as an omission of relevant facts. Nixon/Agnew are as desirous that the American people remain ignorant of poverty and hunger as they are to repress discussion of Pentagon propaganda.

Their text quotes from an FCC order regarding "Hunger in America." What they fail to quote -- from the commission's unanimous October, 1969, order -- is even more relevant:

"We commend CBS for undertaking this documentary on one of the tragic problems of today... [In] this democracy, no government agency can authenticate the news or should try to do so. We will therefore eschew the censor's role, including efforts to establish news distortion in situations where government intervention would constitute a worse danger than the possible rigging itself... [We] believe that no further action is warranted."

As for the CBS investigative report that was never shown of a Haitian invasion that never came off ("Project Nassau"), the matter is currently under investigation by the FCC. Although the Vice President violates no law by criticizing before all the facts are in, I prefer to hold my judgments until later, and I wish he had.

A CRITIC OF ABRONS

Let me make my own position -- as the President might say -- perfectly clear. I have criticized television as much as anyone, and I intend to go on doing so (although I have tended to criticize the corporate censorship on network prime time television -- which is not news and public affairs -- rather than the professional journalists themselves, whom most candid critics recognize as being responsible for TV's finest hour, or half hour). But I hope my criticism has been devoid of ideological content.

It's not just media baronies owned by "bed guys" that bother me; it's media barons of any stripe. It's not just the failure to represent my friends and life style on prime time television shows that raises my ire; it's the censoring of reality generally, a view of American life as it is lived by real people. And so forth.

Nor do I consider CBS a friendly power. Some of the toughest public attacks I have suffered from the broadcasting industry while a commissioner have come from men like CBS's Richard Jencks and Dick Salant. They may have been public attacks -- open and clean with none of the backbiting and blacklisting that come from other quarters -- but they have been tough. So CBS is no friend of mine.

But where I differ with Nixon/Agnew is that I welcome network executives and newsmen who will stand up to me and talk back. As a government official, I will even gladly suffer a few exaggerations, ad hominum arguments and misrepresentations directed my way rather than live in a country where some federal official is telling the media what they can tell the people -- even if that federal official is me.

Because what Nixon/Agnew are really up to is to try to convince the American people that they cannot believe their media. CBS reported Agnew as saying in Boston March 19, "They the American people cannot rely on CBC documentaries for facts." Who, pray tell, are they to rely on, Nixon/Agnew? It's not very subtle, is it? Nor is it smart.

If democracy works the way we hope it does, Nixon/Agnew's appeals, like those of Sen. Joseph McCarthy and all others before them, will get a fair test in the marketplace of ideas (unless the FCC further extends its list of prohibited subjects). Television can help.

Let's hope the tube can keep its McLuhan cool long enough to get us through.