In Re
Complaint of the STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK, AT
BUFFALO, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 510
RELEASE-NUMBER: FCC 73-246
March 12, 1973 Released
Adopted March 2, 1973
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
OPINION:
[*510] A complaint and request
for a declaratory ruling were filed by Tracy A. Westen on behalf of the Student
Association of the State University of New York at Buffalo (Association), Mr.
Mark Huddleston, and Mr. Mark Borenstein alleging that the American
Broadcasting Company engaged in improper broadcast censorship of political
expression.
COMPLAINT
1. The complainants allege
that on October 31, 1970, ABC telecast the Buffalo-Holy Cross football game and
during the half-time the Association "presented a program of music, narration
and hand formatives" which expressed "strongly felt views on the
Vietnam war, racism and industrial pollution"; that ABC, based on a
"network policy not to broadcast material which, in its view, composed 'a
political demonstration,'" refused to broadcast the half-time show,
although it "had previously broadcast 'patriotic' half-time programs
supportive of the Vietnam War"; that the TV cameras were turned "away
from the football field and focused... instead on the trees that lined the Buffalo
campus and the cars driving past the stadium"; that in August 1970, a
member of the Association met with ABC Sports Producer Geoff Mason to discuss
the program; that when Mason was told the program would probably include
"anti-war music, a skit, and a narration attempting to tie the war with
abuses occurring in this country every day," he "reacted by stressing
ABC's concern that the program not alienate the 'potential customers' of
sponsors that were buying commercial time during the telecast"; that the
only "specific requirement" mentioned by Mason was that "the
students give the network, 10 days before the game, a list of music to be
played"; that Mason said ABC required this information, not to exert
censorship control, but only to check for copyright conflicts; that Mason
further stated that "ABC would broadcast whatever the university decided
to present, even 'controversial' material, so long as it did not violate FCC
regulations concerning profanity and it did not alienate all of the
viewers"; and that on October 29, 1970, ABC announced the half-time
[*511] show would be blacked out because of its "definite political
implications." n1
n1 The
complaint regarding the telecast of October 31, 1970, was received by the
Commission on October 7, 1971. A transcript of the half-time program,
diagrams of the band formations and all documents filed in this case are on
file in the Commission offices and are available for public inspection.
2. The complainants contend
that "[although] half-time activities have for decades been used to
communicate political and social messages, and although ABC has broadcast many
such programs both before and after the Buffalo game, the network chose at this
time to avert its cameras and censor the program from the sight of its viewers."
The complainants state that ABC telecast the Army-Navy game on November 28,
1970. The half-time show of that game, which was broadcast by ABC, is
described by the complainants as follows:
... [it] consisted of West Point
Cadets and Navy Midshipmen presenting a truckload of petitions to Mrs. Bobby
Vinson, national coordinator of the National League of Families of American
Prisoners and Missing in Southeast Asia... While thousands or millions of
viewers watched, Admiral Thomas H. Moorer, Chairman of the Joint Chiefs of
Staff, stepped forward, introduced four "heroes" of the Sontay raid,
and announced:
"The 4,300 midshipmen of the
United States Naval Academy join me today in praying for the safe and early
return of the brave men of our armed forces who are prisoners of war and
missing. We call upon all Americans to support the efforts to secure the
protection of the Geneva Convention on P.O.W.s for these men and to obtain
their early release...."
As the Admiral spoke, midshipmen wheeled onto the field a
replica of a bamboo "tiger cage" in which American P.O.W.s had been
allegedly kept...
3. The complainants further
state that regarding ABC's "inconsistent action" Roone Arledge,
President of ABC Sports, stated:
The reason we didn't show the
Buffalo half-time was because it was an editorial to get out of Vietnam.
The differences today (at the Army-Navy game) is that this had no political
viewpoint...
According to the complainants, the issue raised in this
complaint is "whether ABC's refusal to broadcast the Buffalo half-time
program, based solely on its 'political' content, was a legitimate programming
decision, or whether it abridged the speech freedoms of individuals seeking to
convey their message via a legitimate communications medium, and individuals
seeking exposure to the entire gamut of 'controversial' and 'political'
expression."
4. The complainants contend
that: the half-time program constituted speech which was entitled to First
Amendment protection; the decision to black out the half-time program constituted
"censorship of speech"; the First Amendment applies to actions of
broadcasters as well as the government since licensees are imbued with
attributes of the state ("state action"); "courts have held that
once a private or public individual opens up a forum of communication he
controls to permit a certain type of speech, he cannot then discriminate
between speakers or views based on the content of what they wish to say,
arbitrarily accepting certain views and denying access to others"; that by
analogy to the Business Executives Move for Vietnam Peace v.
FCC, U.S. App. D.C. , 450 F. 2d 642
(1971), cert. granted, U.S.
(1972), a broadcaster may not have to "open his forum" to the
presentation of ideas through the medium of a football half-time presentation,
but once he opens that forum, he cannot then [*512] selectively
close that forum solely because the message seeking expression is
"political" or "controversial"; ABC's action involved the
doctrine of "unconstitutional conditions"; n2 "ABC cannot 'condition' access
to its television cameras for half-time programs that contain no political
ideologies or only non-controversial ideologies acceptable to a majority of
Americans"; under the First Amendment ABC cannot censor the views of others
for an improper reason, motivation or justification, i.e., because of the
program's "definite political implications." Complainants conclude
that while ABC need not telecast any football game or half-time program, it
"cannot legitimately reject a half-time presentation based on a 'policy'
of excluding all controversial or 'political' viewpoints."
n2 The complainants state this doctrine holds the
state to be "without power to impose an unconstitutional requirement as a
condition for granting a privilege even though the privilege is the use of
state property." Danskin v. San Diego Unified School District, 171 P.2d
885, 891 (Cal. 1946).
5. The complainants request
that the Commission:
(1) Rule that ABC's discriminatory
refusal to broadcast the Student Association's half-time program, based on a
policy of denying access to certain "political" ideas and not others,
comprised illegal licensee censorship under the First Amendment and the
Communications Act;
(2) Issue a declaratory ruling that
where a broadcaster has for many years held open a forum for the expression of
certain political and non-political views, such as those traditionally
associated with the half-time activities of football game telecasts, it cannot
arbitrarily and discriminatory refuse to broadcast other valid ideas which the
network feels are unpopular, controversial, or expressive of views with which
it disagrees; and
(3) Require ABC to broadcast a film
or other reproduction of the half-time program at a suitable time to a similar
audience, or, in the alternative, require ABC to make time available for the
Buffalo Student Association to convey the ideas and information contained in
its half-time program through another format.
ABC'S RESPONSE
6. In response to Commission inquiry,
ABC states that the complaint is not that ABC refused to cover the issues dealt
with in the half-time program, but rather that ABC refused to cover them in the
format of a half-time football show. ABC states that it has fairly
covered the issues raised in the half-time show, thus fulfilling its fairness
obligations, and argues that since there is no allegation that it has not
provided adequate coverage on an overall basis on the issues the complainant
intended to raise in its program, no legitimate fairness doctrine complaint has
been raised. ABC contends:
Clearly, therefore, the question presented is
whether ABC could reasonably conclude that the half-time program contained
program material which, while perfectly appropriate for other ABC programming,
was inappropriate for inclusion in the telecast of a sporting event. We
believe ABC's determination in this regard was wholly consistent with
Commission and judicial precedent.
7. ABC states that it is
within the licensee's discretion to determine the format and spokesmen for the
presentation of views; n3 that "no individual member of the public has the right of access
to the air"; that "licensees may exercise their judgment as to what
material is presented and by whom," Green v. FCC, 447 F. 2d 323, 238
(1971); and that "[the] licensee does not have to present programming
material [*513] which he believes either will not serve the needs
or interests of listeners or will not do so well as other programming
material...." In re Letter to Cong. Richard L. Ottinger, 31 FCC 2d 852,
853 (1971).
n3 In re
Letter to Cong. Oren Harris, 3 RR 2d 163 (1963); Cullman Broadcasting Co., 40
FCC 576 (1963).
8. Regarding its refusal to
carry the Buffalo-Holy Cross half-time program and its carriage of the
Army-Navy half-time program, ABC states:
... the Buffalo/Holy Cross half-time
program was clearly intended to coincide with the Vietnam War "Moratorium
Day" and to comment explicitly on national issues. Against this
explicit relationship to current public issue discussion, which ABC covered in
other programming, the Army/Navy half-time program presented the military
pageantry traditionally associated with that contest, plus an ancillary
statement seeking humane treatment of American prisoners of war as well as an introduction
of three servicemen who had participated in the unsuccessful attempt to free
American prisoners of war held in North Vietnam (arguably an implicit statement
on a public issue).
9. ABC also states that except
in circumstances which involve personal attacks or political broadcasts, the
Commission has never charged broadcasters with responsibility for presentation
of controversial issue viewpoints within any specified time frame; and that the
standard is one of reasonableness on an overall basis rather than one going to
individual programs at a particular point in time. ABC states that the
question is whether, in circumstances where an issue or issues have been given
extended coverage, there remains a specific right of access on the part of specific
groups. ABC also notes that Commission policy in this area has been that
licensees must have sufficient control as to format, scheduling, and spokesmen
to insure that the public may be adequately informed and that "the
assertion of a right of access is incompatible with the overriding right of the
public to hear all substantial sides of an issue... " In re Committee of
One Million, 33 FCC 2d 545 (1971).
10. ABC contends that it could
reasonably conclude that the half-time program contained material which, while
perfectly appropriate for other ABC programming, was inappropriate for
inclusion in the telecast of a sporting event. ABC further states that
"[in] circumstances where the dividing line is necessarily subjective and
changing, it is sometimes difficult to determine the precise character of
particular program material and to ascertain whether it would be appropriate
for the program format in question... [Assuming] that the licensee approaches
these determinations in good faith, it must have the necessary flexibility to
make these difficult and imprecise judgments free from the threat of constantly
being second-guessed by a Government licensing agency...."
COMPLAINANTS' REPLY
11. The complainants state
that the critical issue is not whether ABC has fulfilled its fairness
obligations but rather "whether a Commission licensee can adopt and
enforce a policy whereby it may censor from the air, at will, political
viewpoints which are expressed directly and "explicitly" in a forum
held open to other less controversial views. Regarding ABC's comments
concerning the difference between the Buffalo/Holy Cross and Army/Navy
half-time shows, the complainants state:
... [*514] ABC's
apparent policy is that "implicit," but not "explicit,"
political messages are "appropriate" for football games -- and it
then proceeds to define half-time programs containing patriotic speeches by
Generals, introductions of servicemen involved in attempts to free war
prisoners, and large mock-ups representing "tiger cages," as
"implicit" political messages.
12. The complaints state that
three approaches have been developed to assure that programming includes the
vigorous presentation of issues as well as entertainment programs: first, that
the fairness doctrine "was conceived as a limitation on the power of a
broadcaster, to prevent him from ignoring important issues altogether, or from
presenting them in a one-sided fashion," and allows the licensee to
control the presentation as long as it does not do all the speaking; second,
that the Commission developed "a second approach to negate the
'temptation' in licensees to censor controversial views" which requires
that "in a number of circumstances -- e.g., equal time requests, personal
attacks, replies to political editorials, the 'political party doctrine,' and
the 'Zapple doctrine' and so forth -- the Commission ruled that specific
individuals have a right to speak;" and finally, the complainant states
the Court of Appeals, in Business Executives Move For Vietnam Peace v. F.C.C.,
hereafter referred to as BEM, developed a "pure access doctrine"
which provides "that because broadcasting is an important and powerful
forum for speech and communication of viewpoints, and because the First
Amendment places its highest protection on individual, self-initiated and
self-controlled speech, broadcast licensees cannot reject all attempts at
self-initiated, self-expression without some compelling countervailing
justification."
13. The complaints contend
that ABC has presented no justification for deleting a "political"
half-time program since it has carried political half-times shown before and
after the one in question. The complainants argue that under the BEM case
carriage of a certain type of programming "waives" the argument that
additional programming is "inherently disruptive." In support of the
proceeding, complainants quote from the BEM case at p. 32-33:
Ordinarily, courts have to make the
basic balancing judgment on their own. However, when the administrator of
a forum has determined to grant access to some speakers or some picketers, he
has implicitly made that basic judgment himself. When some public
speaking is allowed in a park, the park's administrator has determined that the
normal and proper functions of the park will not be excessively harmed by
public speaking. If he then attempts to deny access to other public
speakers, he cannot be heard to claim the opposite. The burden is on him
to show some very substantial factor distinguishing the disruption they would
cause from that caused by the speaking or picketing already allowed.
14. The complainants further
argue that a licensee cannot use the explicit-implicit rationale either to
discriminate against controversial ideas in favor of status quo ones or to
"protect" its audience from controversial expression. Regarding
the fairness doctrine cases cited by ABC, the complainants state those cases
are inapplicable since the BEM court recognized "access" was a
significantly different question than the fairness doctrine.
THE COMMISSION INQUIRY CONCERNING
ABC'S PROGRAMMING DECISION
15. In response to Commission
inquiry concerning the allegation made in the complaint that Mr. Geoff Mason,
ABC Sports Producer, [*515] reacted to a description of the
half-time program "by stressing ABC's concern that the program not
alienate the potential customers of sponsors that were buying commercial time
during the telecast," ABC enclosed an affidavit by Mason in which he
denies having made the statement attributed to him. The complainants filed
an affidavit by Philip Leaf, 1st Vice President of the Student Association, in
which Leaf stated that the thrust of Mason's remarks were that "ABC was
concerned that the production would not alienate any of the viewers who were
paying for the broadcast of the game," and that "the broadcast of the
half-time show was part of a business venture." Complainants also state
that since Leaf went to New York specifically to discuss ABC's reaction to the
political content of the half-time program, it is reasonable to conclude that
Leaf's affidavit reflects the true and accurate recollection of the
conversation.
DISCUSSION
16. The complaint in this case
raises various constitutional issues in regard to ABC's decision not to
telecast the Student Association half-time activities. In support of its
claim that the Student Association was unconstitutionally denied access to the
media, the complainants rely on the decision by the U.S. Court of Appeals for
the District of Columbia in the BEM case. n4 However, on February 28, 1972, the
Supreme Court granted a Commission petition for certiorari and also stayed the
mandate of the Court of Appeals in BEM. In view of the fact that the
issue of a First Amendment right of access is now pending before the Supreme
Court, we will not re-examine that issue here. n5
n4
Supra. In BEM, the court of Appeals held that a flat ban on paid public
issue announcements is in violation of the First Amendment, at least when other
sorts of paid announcements are accepted. The complainants, by analogy to
BEM, argue that since ABC carried other political half-time programs, it cannot
now argue that additional programming is inherently disruptive, thereby denying
the Student Association access to the use of broadcast time.
n5 It
should also be noted that we have also deferred consideration of the
constitutional issues raised by BEM in our fairness doctrine inquiry pending
final adjudication by the Courts. See In the Matter of the Handling of
Public Issue Under the Fairness Doctrine, etc., 35 F.C.C. 2d 800, 804 (1972).
17. Under Section 326 of the
Communications Act, of 1934, as amended, the Commission is prohibited from
censoring material broadcast by the licensee. The licensee has discretion
in discharging his public interest obligations and must be allowed to exercise
reasonable discretion as to the type of programming chosen for broadcast.
As stated in Letter to Cong. Richard L. Ottinger, 31 F.C.C. 2d 852, 853 (1971):
He is thus constantly called upon to
make choices between types of programming, and then, within each type, to
choose the format and person to appear. If the licensee were deemed to be
a common carrier, having to present any matter brought to him which was not
obscene, etc., the result would be not only chaotic but a wholly different
broadcasting system which Congress has not chosen to adopt.
If the
licensee's discretion is exercised reasonably, the Commission can take no
further action.
18. In its response to the
complaint, ABC states it concluded that the Student Association program material,
while appropriate for other [*516] ABC programming, was not
appropriate for inclusion in a broadcast of a sporting event, and that since
the Student Association program was clearly intended to coincide with the
"Moratorium Day" activities, the program constituted an explicit
comment on national issues which ABC chose to cover in other programming.
19. ABC's decision not to
broadcast the Buffalo half-time activities would raise a serious question of
compliance with the public interest standards of the Communications Act if it
had a policy, as the complainants contend, of "denying access to certain
political ideas and not others, or if it "arbitrarily and discriminately'
refused to broadcast valid ideas which are controversial." As stated in
Letter to Cong. Richard L. Ottinger, supra, 853:
While the licensee has great
discretion, that discretion is, of course, limited by the necessity to act
under policies consistent with the public interest standards. A licensee could
not reject a presentation of a view on the basis of a policy that he never
presented views with which he disagreed, or views of women, or blacks, or
red-headed men.
As support for their contention that ABC's decision was
arbitrary, complainants cite ABC's broadcast of half-time activities during the
1970 Army-Navy game. However, ABC stated that it regarded its broadcast
of the half-time of the Army-Navy game as part of the military pageantry
traditionally associated with the game, and that the statement seeking humane
treatment for prisoners of war was ancillary to the program, whereas, the
Student Association program was an explicit statement on controversial issues
which ABC had covered in its overall programming. Complaints do not
contend ABC has not extensively presented opposing views and different
individuals and groups representing opposing views both in its public affairs
programming and in its news coverage on the issues herein. n6 From these [*517] facts
it does not appear that ABC has a policy of refusing to broadcast certain
political ideas while broadcasting opposing ones; nor does it appear that ABC
has "arbitrarily" and "discriminatively" refused to
broadcast valid ideas which are controversial.
n6 In the attached "News
Exhibit" ABC lists its extensive coverage of the issues concerning the
Vietnam War, racism, and the environment, and also the presentation of these
issues by different individuals holding opposing viewpoints. For example,
on the Issues and Answers program some of the individuals offering differing
views on the Vietnam War during 1970 included:
|
Jan. 11,
1970 |
H. Ross
Perot |
|
May 7,
1970 |
Sen.
William Fulbright |
|
July 26,
1970 |
Sen. John
Stennis |
|
Aug. 23,
1970 |
Sen.
George McGovern and Sen. Robert Dole |
|
Oct. 25,
1970 |
Swedish
Prime Minister Olaf Palme |
On its news documentary series
some of the programs broadcast included:
Missing in
Randolph (The loss of family, friends and community when a young man does not
return from combat)
The Loyal Opposition
(Analysis of Nixon Administration foreign and domestic programs -- Sen. Edmund
Muskie, DNC Chm. Larry O'Brien, and Rep. Henry Reuss)
P.O.W. --
Next of Kin (The anxieties of waives and families of P.O.W.'s and what is done
to gain P.O.W.'s release)
Vietnam: Topic A (The successes and failures of
Vietnamization, pacification and land reform)
In addition, ABC lists its
coverage of the issues surrounding the Vietnam War in its general news
broadcasts.
Some
examples of ABC's efforts in regard to the environmental and ecology issues
include:
No
Deposit, No Return (As a prelude to "Earth Day," students at the
Univ. of Michigan held a teach-in featuring a "mess-up" followed by a
"clean-up")
The
Poisoned Planet (Pesticides, herbicides and insecticides: use of chemicals and
their long-range effect on the environment and the food supply)
Death Be
Not Loud (How people may be suffering physical and psychological damage due to
rising noise levels)
In
addition, ABC lists its Special Reports:
The
President's State of the Union Message
Earth Day:
An SOS for Survival
Some examples of ABC's efforts in
regard to the issue of racism include:
The
Panthers (A study of the Black Panther Party featuring a poll of Black
Americans regarding their opinions of the Panthers)
The Eye of
the Storm (A study of the roots or prejudice in an Iowa School)
Unions and
the Blacks (Current situation facing Black Americans in the American labor
movement)
20. There is also the question
whether ABC is following policies that are inconsistent with the public
interest. Citizens Communications Center 25 F.C.C. 2d 705 (1970). But
there is no showing here of any such policy. It can exercise good faith
judgment as to whether to present a particular controversial issue viewpoint in
the midst of an entertainment or sports program. The licensee might
regard such presentation as jarring or inappropriate at these times. We
stress that it is not a matter of how the FCC would program the station, and
that we cannot be called upon to review these myriad judgments of taste or
appropriateness. There can be a thousand shadings, and licensees could
reasonably reach diametrically opposing conclusions. So long as the
licensee has not adopted guiding policies that conflict with the public interest
standard, the Commission cannot properly intervene in this sensitive
programming area. Under a contrary course, any participant in an
entertainment, talk or sports show, who was told by the licensee that some
controversial material he wanted to present "just didn't fit in,"
could complain and obtain review of this Governmental agency.
21. In essence the claim in
this case is not that ABC has failed to present contrasting views on the issues
of the Vietnam War or the environment, but that ABC failed to present the program
of the Student Association itself. However, aside from a few well-defined
situations, no particular person or group has the right to use a licensee's
broadcast facility. n7 The licensee is given wide discretion in its selection of spokesmen and
presentation of issues, and it is the right of the public to be informed rather
than the right of any particular individual or group to use a broadcast
facility which is paramount, Red Lion Broadcasting Co., Inc., v. F.C.C., 395
U.S. 367 (1969). As stated in Green V. F.C.C., 447 F. 2d 323, 328 (1971),
"... no individual member of the public has the right of access to the
air; the licensees may exercise their judgment as to what material is presented
and by whom." See also The Committee of One Million, 33 F.C.C. 2d 545, 548
(1971) in which the Commission said:
n7 See Section 315 of the Communications Act of 1934, as amended,
regarding "equal opportunities"; the personal attack and political
editorial section of the Commission's Rules (Section 73.123); and Nicholas
Zapple, 23 F.C.C. 2d 707 (1970).
The Commission's consistent policy, now under
review, has been that licensees must have adequate control to insure that the
public will be reasonably informed, and that the assertion of a right of access
is incompatible with the overriding right of the public to hear all substantial
sides of an issue, particularly in view of the licensee's duty to present an
opposing viewpoint without charge if that is necessary to insure that a
conflicting viewpoint is not denied a hearing. We read Red Lion
Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969), as being consistent with our
position and, indeed, as rejecting a personal right of access.
In light of
the Commission's long-standing polices as set forth above, the Student Association's
claim for its own personal right of access is denied.
22. One other matter remains,
the conflicting statements of Mason and Leaf. Mason, ABC Sports Producer,
denied that he had indicated [*518] ABC was concerned that the
half-time program would alienate customers of the commercial sponsors of the
football broadcasts. Leaf, 1st Vice President of the Student Association,
offers a contrary affidavit in which he states that the thrust of Mason's
remarks were that ABC was concerned that the broadcast not alienate any of the
viewers who were paying for the broadcast.
23. The Commission would be
concerned if a licensee chose to broadcast material based on its private
commercial interest rather than on the public interest. However, other
than the affidavit of Leaf, complainant has afforded no evidence to support its
contentions. In this case there is a conflict of memory between Mr. Leaf
and Mr. Mason. As we stated in Hunger in America; 20 F.C.C. 2d 143, 147
(1969):
... [There] is a conflict, with
the memory of the CBS witnesses differing from that of the hospital
personnel. In these circumstances, it is, we believe, inappropriate to
hold an evidentiary hearing and upon that basis (i.e., credibility or demeanor
judgments) make findings as to the "truth" of the situation.
The truth would always remain a matter open to some question, and unlike a tort
or contract case, where a judgment must be made one way or another, that is not
the case here. The issue presented here by the complaints is not the one
under the fairness doctrine, concerned with presentation of contrasting
viewpoints (a different matter upon which we do not pass), but rather, whether
to find the licensee has sought deliberately to slant the news...
[Intervention] by the Government should be limited to cases where there is
extrinsic evidence involving the licensee or management or in the unusual case
where the matter can be readily and definitely resolved.
While we cannot resolve the conflict, evidence before the
Commission shows that ABC has broadcast the very views which complainant states
were to be presented during the half-time program. Therefore, under the
circumstances and based on the information before us, we cannot conclude that
ABC's decision not to broadcast the program was based on reasons contrary to
the public interest or violative of any Commission rule or policy.
CONCLUSION
Leaving aside the constitutional
issues raised by the complainants, it is clear that ABC does not have a
"policy" of denying access to certain ideas and not others.
Although the complainants do not rely on the fairness doctrine for their claim,
but rather base their argument on a "right of access" concept, we
note that ABC has broadcast many public affairs programs on the issues of the
Vietnam War, as well as having covered these issues on its news programs.
Because of ABC's apparent compliance with the fairness doctrine requirement of
presenting contrasting views on issues of public importance, it does not appear
that ABC has "arbitrarily and discriminately" refused to broadcast
valid ideas simply because they are "political",
"unpopular", "controversial", or "expressive of views
with which it disagrees." Furthermore, the decision by ABC not to broadcast
the half-time activities was within the degree of discretion allowed a licensee
in choosing material for broadcast; this is particularly so in light of the
fact that ABC has, in its overall programming extensively covered the
[*519] issues raised by the Student Association half-time program.
For the above reasons, the relief requested by complainants IS DENIED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
On October 31, 1970, the American
Broadcasting Company (ABC) televised the Buffalo-Holy Cross football
game. When it came time for the half-time show -- a musical narrative
critical of the Vietnam War -- ABC's cameras were averted, focusing not on the
field, but, rather, on passing automobiles. On November 20, 1970, ABC
televised the Army-Navy football game. But this time the viewing audience
was allowed to watch the half-time show -- a pageant designed to encourage
citizen support for American prisoners of the Vietnam War.
The Student Association of the State
University of New York, distressed over ABC's apparent preference for combining
football with essentially pro-war expression, filed this complaint seeking
F.C.C. disapproval of ABC's policies. Today, while admitting that
broadcasters have a statutory duty to serve the public, and while admitting
that a broadcaster's programming discretion is, therefore, not unlimited, the
F.C.C. majority refuses to examine the reasons underlying ABC's deletion of the
anti-war half-time show during the Holy Cross game. In effect, then, the
majority holds that, at least with respect to censorship decisions, a
broadcaster's discretion is virtually as broad as that broadcaster's
imagination allows. I dissent.
The F.C.C. majority has held, over
my dissents, that neither the public nor the public's elected representatives
have a Constitutional right to obtain access to the broadcast media. See
Business Executives Move For Vietnam Peace, 25 F.C.C. 2d 242 (1970),
reversed, Business Executives Move For Vietnam Peace v. F.C.C., 450 F. 2d 642
(D.C. Cir. 1971); Availability of Network Programming Time to Members of
Congress, F.C.C. 72-1194,
F.C.C.2d (1973).
The majority has also held
repeatedly, again over my objections, that once such access is granted,
broadcasters do not encroach upon constitutional rights by censoring views with
which those broadcasters might, for whatever reason, find not to their
liking. See, e.g., Letter to Congressman Richard L. Ottinger, 31 F.C.C.
2d 852 (1971); Letter to Tracy Westen re Mark Lane,
F.C.C. 2d (1972). In essence, the majority has
rejected the theory that broadcasters, licensed by the F.C.C. to serve a
peculiarly public function, are imbued with the sort of attributes of
"state action" necessary to subject them to specific Constitutional
restraints.
The majority concedes, however -- as
well it must, given the language of the Communications Act of 1934 -- that
broadcasters do have a duty to serve the "public interest, convenience or
necessity." And while the majority has nevertheless steadfastly refused to
inject any precision into so amorphous a command, it would appear eminently
reasonable to suggest that this Congressional mandate embodies, at the very
least, principles of Constitutional proportion. For, above all else, the
Constitution is designed to protect the public from governmental excesses in a
manner very similar to the protections from broadcast abuses [*520]
afforded the public through the "public interest" standard.
Though it may well impose restraints upon broadcasters which go far beyond the
limits imposed by Constitutional principles, then, the Congressional command
embodied in the 1934 Act would appear to preclude broadcasters from engaging in
the sorts of activities in which they could not engage were they cloaked with
state authority. See Johnson and Westen, A Twentieth Century Soapbox: The
Right to Purchase Radio and Television Time, 57 U. Va. L. Rev. 574, 607-608
(1971).
Even assuming arguendo that the
"public interest" standard might not preclude broadcasters from
imposing a blanket ban on access to parties desirous of expressing
controversial views, see Business Executives Move For Vietnam Peace, supra, it
is clear that that standard demands that once access is afforded to some it may
not be denied to others on the basis of the content of the proposed
expression. In other words, even if access to the media were not a right
of constitutional proportions, once access is granted by broadcasters it must
be administered with an even hand. The Constitution demands this much,
see, e.g., Marsh v. Alabama, 326 U.S. 501 (1946); Harper v. Va. Bd. of
Elections, 383 U.S. 663 (196). And, properly viewed, the "public
interest" should command no less.
Under such an approach, of course,
it is incumbent upon this Commission to examine ABC's asserted justifications
for its treatment of the Holy Cross-Buffalo half-time show -- treatment which,
on its face, was radically different from that afforded the Army-Navy game
half-time show. ABC attempts to justify this different treatment by
arguing that the Army-Navy show included "traditional military
pageantry," whereas the Holy Cross-Buffalo show presented material (the
band in the shape of the peace symbol) "inappropriate for inclusion in the
telecast of a sporting event." In short, ABC attempts to justify its
censorship of the Holy Cross-Buffalo show and its carriage of the Army-Navy
show on the theory that pro-war expression is somehow more suited to football
than is anti-war expression.
Personally, I am somewhat
underwhelmed both by the justification and by its implications. And the
majority's acceptance of that justification is simply irresponsible. For,
in placing the stamp of legitimacy upon such a justification, the majority
approves the broadcast censorship of expression based on the content of that
expression.
The majority's approach is as
irrational as it is irresponsible given the majority's own concession that it
would be concerned if "a licensee chose to broadcast material based on
private commercial interest rather than on the public interest." Through
this remarkable statement, the majority suggests that a broadcaster may censor
expression based on the content of that expression so long as the censorship is
not motivated by commercial concerns. Even on this narrow and somewhat
disturbing theory, however, complainants have presented evidence which makes
out a prima facie case that ABC engaged in just such commercially-motivated
censorship.
First, it is common knowledge that
the commercial broadcasting industry -- a virtual salve to the rating systems
-- makes programming decisions in conformance with the advertising industry's
demand for the largest possible audience. Advertisers tend to support
only that [*521] programming which is devoid of controversy on the
contemptuous theory that the vast majority of Americans will not tolerate
programming which stimulates thought processes, which inspires, which educates
or which does more than lull viewers into a dull state of witlessness.
With very rare exceptions, the commercial broadcasting industry consistently
does the advertising industry's bidding. See the Statement of David W.
Rintels before the Senate Subcommittee on Constitutional Rights, Feb. 8, 1972.
Second, complainants have presented
an affidavit by their First Vice President wherein it is alleged that ABC's
sports producer actually admitted that the network's refusal to carry the Holy
Cross-Buffalo half-time show was motivated by ABC's desire to avoid offending
its advertisers' customers. Apparently, ABC had resolved that while
anti-war sentiments would not sit well with football fans, extravaganzas
lauding the military are as patriotic as the game of football itself.
ABC's sports director, of course, denies that he made such remarks, and in the
face of such obviously conflicting evidence, the FCC majority simply abdicates
its role.
The majority, which has admitted
that purely commercially motivated programming decisions would offend the
"public interest" standard, asserts, with remarkable casuistry, that
any exploration into ABC's real motivation would constitute censorship by the
FCC. In support of this approach, the majority relies upon Hunger in
America, 20 F.C.C. 2d 143 (1969), where the Commission held that absent extrinsic
evidence of motives inconsistent with the public interest, F.C.C. investigation
into charges of "news staging" would be inappropriate.
As I have indicated on prior
occasions, see, e.g., Letter to Albert Kramer, 25 F.C.C. 2d 705, 713 (1970);
Letter to Tracy Westen, supra, while I fully support the application of the
"extrinsic evidence" rule enunciated in Hunger in America to cases of
broadcast journalism "staging," I simply believe it inapplicable to
cases of alleged censorship such as the instant one.
News "slanting" or
distortion, while properly disfavored by the F.C.C., is an extremely subtle
phenomenon, difficult to discover and prove if only because no news documentary
can possibly provide all the information existing on a topic being covered.
For this reason, and because the Commission did not wish to cast a
"chilling effect" over broadcasters desirous of presenting important
information to the American public, the Commission adopted its "extrinsic
evidence" test to avoid the dangers of overboard regulation.
Censorship, in striking
contradistinction to news slanting, is easy to detect. It is especially
easy in the instant case ABC simply averted its cameras during one portion of a
broadcast.
By refusing to make the requisite
inquiry the F.C.C. majority, far from deterring broadcasters from presenting
informative, controversial programming, simply strengthens the broadcasting
industry's resolve to censor such programming at every possible
opportunity. As usual, the industry benefits while both our process and
the public can only suffer.
I dissent.