Bazelon, C.J., dissenting from the order vacating the previous order granting rehearing en banc
How later courts described this case
- Bazelon, C.J., dissenting from the order vacating the previous order granting rehearing en banc
- original panel opinion by Judge Leventhal
- “Congress created the Federal Communications Commission and its predecessor, the Federal Radio Commission, because the available space on the electromagnetic spectrum was far exceeded by the number of those who would use it.”
- spectrum “is not the private property of any individual or group”
Written by the judges who cited it.
The opinion
LEVENTHAL, Circuit Judge,
supplemental concurring statement:
I append a concurring statement in which I speak for myself, even though I have authored the opinion for the court, because I find that this device, which I have used in other cases, 1 gives reasonable latitude to offer comments that occurred to me in the course of my researches and reflections on the subject under consideration, but which for one reason or another are not appropriate for the opinion of the court.
* * *
A judge confronted with a problem like this one has a natural tendency, born of his years of lawyering and judging, to try to strike a middle ground between the antagonists — -here, between NBC and AIM.
The Commission’s recognition of latitude to NBC as to how to give access to an opposing viewpoint tempts a judge to be swayed by the submission of Commission counsel that the “cost of presenting an opposition spokesman should be minimal.” 2
It is doubtless tempting not only to the judge but to counsel for a licensee —particularly if the problem should arise not for a network but as to a station owner — to say: “See if you can’t run something that will satisfy the government officials.”
*1153 What is overlooked is the stultifying burden on journalism. Even the monetary burden is not inconsequential, as the record indicates, and it is no answer to say that the license is profitable, because the problem is that the incremental burden will lead a licensee to acquiesce in the Government’s instruction as to what he should broadcast. More important, however, is the unquantified burden, the bureaucrat peeking over the journalist’s shoulder.
In the context of the fairness doctrine, the twin principles of latitude for the licensee and narrow review for the Federal Communications Commission merit special vigilance when the question is whether the “issue” in a program of investigative reporting is one of evils described or a broad subject canvassed, because government latitude to redefine the issue enfleshes the specter of a subtle and self-serving government censorship impeding the ventilation of abuses.
While journalists on the public airwaves are subject to fairness doctrine responsibilities, the risks of government interference are so oppressive as to require a plain showing of journalistic abuse before a government official can issue a direction that the journalist’s report must be supplemented with a codicil. The danger of intrusion on journalistic discretion is no less real and profound because it rests, at base, in the spirit, in the way men carry on their functions. Journalism in America has had its evils and abuses, but in the large they are outweighed by its achievements in liberating the questioning mind and spirit. The public interest pulses in the investigative reporting that depicts whatever evils are seen wherever they are seen, and asks provocative questions.
Journalists may be stifled if they are steered from the way in which their profession looks at things, and channeled to another way, which however congengial to men of the law, dampens the investigative spirit.
The major item in the diet of the press is controversy and confrontation. Lawyers are usually working to compose and accommodate differences. The press must try to make simple that which in fact is complex and to suppress factual detail in favor of the emotional jugular. The lawyers pull exactly the other way. 3
The First Amendment freedoms established in the interest of an informed citizenry “are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference.” Bates v. Little Rock, 361 U.S. 516, 523 , 80 S.Ct. 412 , 4 L.Ed.2d 480 (1960).
. United States v. Poole, 161 U.S.App.D.C. 289 , 495 F.2d 115 (1974); United States v. Ammidown, 162 U.S.App.D.C. 28 , 497 F.2d 615 (1973); Bellei v. Rusk, 296 F.Supp. 1247 (D.D.C.1969) (3-judge court), reversed, 401 U.S. 815 , 91 S.Ct. 1060 , 28 L.Ed.2d 499 (1971).
. Opposition to Motion for Stay, at 16.