National Broadcasting Company, Inc. v. Federal Communications Commission and the United States of America, Accuracy in Media, Inc., Intervenor

TAMM, Circuit Judge

(dissenting):

This ease presents us squarely with questions arising from the head on collision of First Amendment rights of freedom of the media and the right of the people to know. It requires again “an expression of the pervasive precept of fairness between government and governed that runs thru American jurisprudence. . . .” Trailways of New England, Inc. v. C.A.B., 412 F.2d 926, 931 (1st Cir. 1969). Involved is not the so called “on the spot reporting” which makes up a substantial portion of television newscasts but a documentary type of presentation referred to in these proceedings as investigative reporting. The editorial supervision and selectivity frequently approved in judicial decisions was not herein discharged under the pressure of time considerations essential to the preservation of news values, but permitted, according to representations made to us, the digesting of eighty thousand feet of film into a two thousand foot final product. Most importantly we are not dealing with a printed publication utilizing its private property to disseminate its news and views in the exercise of that freedom of the press which is the central freedom of the whole democratic process. Our petitioner, the Na *1154 tional Broadcasting Company, Inc. is the temporary licensee of a right to utilize the public’s airways in the public interest and for the public welfare. To me this is the dominant element in distinguishing the rights and obligations of a telecaster from those of the press, which under controlling Supreme Court opinions has an unlimited freedom to report events in the public domain.

No right is absolute. It is elementary that each right carries with it an obligation. In accepting the right to use the public airways our petitioner, willingly or reluctantly, assumed the obligation of utilizing those airways in the public interest. The public interest in television programming expressed in fundamentals is to know the facts.

Petitioner argues that investigative reporting is somehow a special specie to Which the application of a fairness requirement is constitutionally repugnant. The majority opinion supports in substance this position and capsulized into its basic and ultimate holding concludes that fairness, meaning a presentation of both sides of a question of public interest, is not a practically enforceable obligation of a licensee of the public airways. This position means that a telecaster’s presentation under the label of investigative reporting of a few factual bones covered with the corpulent flesh of opinion and comment fulfills the obligation of the network to give a fair picture to the public and to assist the public in knowing the facts essential to a determination of basic policies. The majority opinion fails to recognize that as a practical matter there is no real distinction between this type of so called investigative reporting and propaganda. The investigative reporter, regardless of his initial motivation, too often reaches a point where objectivity disappears and he becomes an ardent advocate for a particular position or viewpoint. Developing a feeling for what might or should be, rather than awareness of what is, he produces a manipulated and selective presentation which ignores all viewpoints and positions other than his own. There is no doubt but that embellishment, color and opinion often prove to be more interesting than objective presentation of both sides of an issue of public interest but is such a production a discharge of the responsibility of the telecaster to give a fair picture and a presentation of all points of view?

The history of democracy is a record of the fear and distrust by the people of unrestrained power. This is the womb in which was gestated the constitutional amendments which we identify as the Bill of Rights. First Amendment guarantees were and are designed to afford the people an effective weapon against the existence or use of destructive and abusive power. Does anyone doubt that a tremendous reservoir of power exists today in the radio and television industry? Are not television and radio newscasters and commentators dominant in the shaping of the public’s viewpoints and opinions? Does not their ability to capture the public attention arm them with a weapon of such magnitude that public officials are too often completely subject to their influence? Is it an exaggeration to say that the telecasting industry constitutes a power system comparable if not superior to government itself but basically free of the restraints imposed on government power? We proudly proclaim that in our democracy all power is in the people, but is this power impartially exercised today upon a full knowledge of all facts which affect the public order? The answer is obviously dependent upon the public’s ability to learn the facts and again we are face to face with the use which is made of the public airways by the licensees.

I recognize and will readily defend the constitutionally mandated right of the licensed media to exercise its choice of what to report and what not to report. Beyond this the right to editorialize with properly descriptive identification is judicially recognized, but confining my position to the record before us, in the presentation of a so called investigative or documentary report I believe that *1155 there is a legally enforceable obligation on broadcasters to present a report in which all conflicting positions and viewpoints are fairly portrayed. To require less in my view is to permit an abuse of the public’s right to know, and a desecration of the license to use the public airways in the public interest.

“Freedom of the Press” as a generic term has long been prominent in the lexicon of judicial opinions. It will never be fully defined because it is not a static phrase with final and permanent meaning. It defines a continuously evolving phenomenon with changing, disappearing, materializing and sometimes almost mystifying significance. Rapid development of the utilization of the public airways as,a means of informing the public has placed tremendous power in these media. The fairness doctrine, as the Federal Communications Commission has exercised it in this case, is not a censorship, is not a prior (or subsequent) restraint, is not a usurpation of what the majority describes as “Journalistic Discretion” but is merely a policy that requires in the public interest all viewpoints be presented in factual matters of public interest. The doctrine, as it has been utilized here, is the yeast of fairness in the dough of the telecaster’s right to exercise his journalistic freedom. The resulting problem of the Commission is then the securing of responsibility in the exercise of the freedom which the broadcasting industry enjoys. We are asked to rule that on the traditional scales of justice the right of the people to know is outweighed by the’. claimed right of the telecasters to exercise a constitutional infallibility in determining what the public is entitled to know. I cannot so hold. I would affirm the Commission’s action.

Before: Bazelon, Chief Judge; Fahy, Senior Circuit Judge; Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges.

ORDER

On consideration of intervenor’s petition for rehearing and/or suggestion for a hearing en banc, it is

ORDERED by the Court en banc that the above entitled case shall be reheard by the Court sitting en banc, and accordingly the opinions and judgment filed herein on September 27, 1974 are hereby vacated. It is

FURTHER ORDERED and ADJUDGED by the Court en banc that the stay heretofore granted by a division of this Court shall remain in effect pending further order of this Court.

Petitioner and Amici Curiae supporting the position of petitioner shall file briefs within 40 days from the date of this order. Respondent, Intervenor and Amici Curiae supporting their .positions shall file briefs within 30 days thereafter. Reply briefs, if any, shall be filed within 14 days from the date Respondent’s and Intervenor’s briefs are filed.

Counsel are requested to address themselves in the briefs to the issues raised in the opinions filed by the members of the panel on September 27, 1974, in addition to any other contentions counsel may wish to present.

Argument is hereby scheduled before the Court sitting en banc on Wednesday, April 2, 1975, at 10:00 A.M.

PER CURIAM

*1156 Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.

ORDER

On consideration of Respondents’ suggestion of mootness and of the responsive pleadings filed with respect thereto, it is

Ordered by the Court, en bane, that the order filed herein on December 13, 1974 granting rehearing en banc is hereby vacated, and it is

Further ordered by the Court, en bane, that the opinions and judgment of the panel are hereby reinstated, and it is

Further ordered by the Court, en banc, that the suggestion of mootness and all responsive pleadings filed with respect thereto are referred to the panel for its consideration.

Chief Judge BAZELON and Circuit Judge LEVENTHAL did not participate in the foregoing order.

Before BAZELON, Chief Judge.

ORDER

It is Ordered, sua sponte, that the order filed herein on March 18, 1975, vacating the order of December 13, 1974 and reinstating the opinions and judgment of the panel, is hereby further amended to reflect that I dissent from the order vacating the order of December 13, 1974 and dissent from the denial of rehearing,en bane, and that I reserve the right to file a statement of reasons in support of my vote.

Statement of Chief Judge BAZELON, dissenting from the order vacating the previous order granting rehearing en banc.