The opinion
MORRIS, Judge
(dissenting).
Radio and television broadcasting falls within the scope of federal regulatory power derived from the commerce clause of the United States Constitution, art. 1, § 8, cl. 3. Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266 , 53 S.Ct. 627 , 77 L.Ed. 1166 . It also seems that liability for libel in connection with broadcast or telecast transmissions also falls within the scope of that power. O’Brien v. Western Union Telegraph Co., 1 Cir., 113 F.2d 539 . Congress, by Section 315 of the Federal Communications Act of 1934, has undertaken to regulate the use of broadcasting facilities by candidates for public office and prohibit to licensees the exercise of the power of censorship over material broadcast within the provisions of that section. The extent of that regulation and its legal consequences are matters to be determined under federal statutes in accordance with federal policy insofar as *111 that policy has been established. Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173 , 63 S.Ct. 172 , 87 L.Ed. 165 .
To the extent that Section 315 deprives a licensee of the power of censorship over the material broadcast it insulates the licensee against liability for defamation. This is a corollary to the proviso of Section 315 because Congress has by the Communications Act undertaken to protect as well as regulate radio and television stations in the public interest. Therefore the -power of censorship provided by Congress must be evaluated and construed in the light of both the public purpose sought to be served and the age-old right of the individual to a reputation undefamed. I find a somewhat analogous situation with respect to Article I of the Amendments to the Constitution of the United States prohibiting the abridgment of freedom of speech. Even that freedom must yield to civilized society’s inherent prohibitions of blasphemy, indecency and defamation. Thus words that seem unqualified must sometimes yield to qualification.
“Power of censorship” that Section 315 prohibits is the power to deny or forbid the publication in advance or to refuse to make available facilities of the licensee for such publication. Allen B. Dumont Laboratories v. Carroll, 3 Cir., 184 F.2d 153 . Despite the positive wording of the statute this prohibition cannot under all circumstances be absolute. I do not attribute to Congress an intention to deny the right of censorship to the extent of compelling the licensee to make available to a candidate for public office its facilities for the broadcasting of obscenity or blasphemy. It follows that to the extent that censorship is not absolute, privilege under the law of libel is not absolute. Once that it is conceded that the prohibition of censorship is not absolute despite its positive language we are faced with the problem of construction that involves a determination of the intention of Congress.
A number of states have by their constitutions placed reputation within the pro-
tecting mantle of the Bill of Rights. Byers v. Meridian Printing Co., 84 Ohio St. 408 , 95 N.E. 917 , 38 L.R,A.,N.S., 913; Osborn v. Leach, 135 N.C. 628 , 47 S.E. 811 , 66 L.R.A. 648 ; Hanson v. Krehbiel, 68 Kan. 670 , 75 P. 1041 , 64 L.R.A. 790 , 104 Am.St.Rep. 422 . See also Neafie v. Hoboken Printing & Publishing Co., 75 N.J.L. 564 , 68 A. 146 .
“As a part of the right of personal security, the preservation of every person’s good name from the vile arts of detraction is justly included. The laws of the ancients, no less than those of modern nations, made private reputation one of the objects of their protection.” Kent’s Commentaries, 14th Ed. (Gould) Vol. II, p. 23.
An intention to leave all reputations at the mercy of even a limited class of defamers should not be lightly ascribed. On the other hand justice to the individual may sometimes be forced to yield to the public good. In this instance, however, Congress in enacting Section 315 was not faced with a Hobson’s choice and in construing that section neither are we.
When a person becomes a candidate for a public office he submits himself to a limited privilege on behalf of those who would comment on his fitness for office. Nevada State Journal Publishing Co. v. Henderson, 9 Cir., 294 F. 60 ; 33 Am.Jur., Libel and Slander, Section 169, 53 C.J.S. Libel and Slander § 134 b. This rule springs from the fact that when a person becomes a candidate for public office his reputation for honesty and integrity as well as his qualifications and fitness for the position become matters of public interest. Radio and television licensees are mediums for the broad distribution of information. I have no difficulty in concluding that Congress by the enactment of Section 315 prohibited censorship of the material broadcast under the provisions of that section on the ground that it was defamatory of a candidate for the same office who had pre *112 viously been permitted to use the broadcasting station. Perhaps Congress intended to go so far as to prohibit censorship of the broadcast of matter defamatory of any candidate for the same office. But what of the innocent bystander ?
The innocent bystander may stand in one of two categories depending on the relationship if any between the defamatory matter and the rest of the broadcast. A defamatory statement may be a digression from the political theme and have no connection with any opposing candidate. Surely Congress did not intend that a candidate broadcasting under the protection of Section 315 might charge his neighbor, John Doe, with being a thief out of context and with no relation to the campaign or to opposing candidates, free of any right of the licensee to censor the defamatory statement and consequently without recourse against the disseminator on the part of the person so defamed. To that extent at least the prohibition against censorship must yield. In a second and slightly different category stands the innocent bystander whose defamation is in context and is connected by words of the broadcast with an opposing candidate. An illustration would be where a candidate is broadcasting under the provisions of Section 315 and accuses an opposing candidate of associating with thieves, one of whom is neighbor John Doe. Here again the neighbor is defamed but the defamation is by context connected with the candidate as well. This case falls within the general purview of the second illustration. The defamatory accusation that the plaintiff is Communist-controlled is connected by context with the two candidates opposing A. C. Townley, whose speech was telecast after being filmed, recorded and viewed by the employees of the defendant, WDAY, Inc. The plaintiff is an innocent third party whose reputation has been defamed under the claimed protection of the prohibition against censorship contained in Section 315. It does not appear that the public interest would be served by making the reputations of innocent third parties subject to destruction without recourse to the disseminator by an irresponsible candidate for public office broadcasting under the aegis of Section 315 or that Congress intended licensees to be rendered powerless to prevent such a result.
I am not impressed by the argument that because Townley was the primary source of the defamatory material and the licensee was merely the agency of transmission or publication Congress felt that recourse to the author afforded sufficient relief. This argument ignores the fact that defamation acquires its devastating effect through dissemination rather than authorship and that under the law of libel damages are awarded not for the utterance but for the effect.
My conclusion is that Section 315 does not afford the defendant, WDAY, Inc., a defense in law and that the trial court erred in overruling the demurrer to the second defense.