Amicus Curiae Brief — United States v. New Jersey State Lottery Commission

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May 4 1978 RT, U. e

IN THE

Supreme Crurt of the United States

OCTOBER TERM, 1873

NO. 73-1471

UNITED STATES OF AMERICA and

FEDERAL COMMUNICATIONS COMMISSION,

Petitioners,

NEW JERSEY STATE LOTTERY COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

NATIONAL ASSOCIATION OF BROADCASTERS

National Association of

Broadcasters

1771 N Street, N.W.

Washingt on, D.C. 20036

(202) 293-3560

JOHN B. SUMMERS

Counsel

JAMES J. POPHAM

May 3, 1974 Of Counsel

THE CASILLAS PRESS, rivC.-1717 K Street, N. W.—Washington, D. C.-223-1220

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

NO. 73-1471

UNITED STATES OF AMERICA and

FEDERAL COMMUNICATIONS COMMISSION,

Petitioners,

NEW JERSEY STATE LOTTERY COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

OF THE NATIONAL ASSOCIATION OF BROADCASTERS

The National Association of Broadcasters (hereinafter

NAB) moves pursuant to Rule 42 of this Court for leave

to file a brief amicus curiae in the above-entitled proceed-

ing.

2

The NAB is a non-profit association of radio and televi-

sion broadcast stations and networks. As of April 24, 1974,

NAB’s membership inciuded 2,370 AM radio stations, 1,506

FM radio stations, 532 television stations and all nation-

wide commercial broadcast networks. The object of NAB,

according to its by-laws:

. Shall be to foster and promote the de-

velopment of the arts of aural and visual

broadcasting in all its forms; to protect its

members in every lawful and proper manner

from injustices and unjust exactions; to do

all things necessary and proper to encourage

and promote customs and practices which

will strengthen and maintain the broadcast-

ing industry to the end that it may best

serve the public.

All broadcast stations are subject to the prohibitions of

the criminal anti-lottery statute, 18 U.S.C. 81304 (1964),

and Federal Communications Commission (hereinafter FCC)

rules regarding broadcast of lottery informatidbn. 47 C.F.R.

§8873.122, 73.292, 73.656 (1972). The FCC has ruled that

18 U.S.C. $1304 and its rules prohibit broadcast stations

from announcing the winning number of state-conducted

lotteries as part of their regular news reports. Declaratory

Ruling, 30 F.C.C.2d 794 (1971) (hereinafter cited as De-

claratory Ruling), reconsideration denied, Memorandum

Opinion and Order, 36 F.C.C.2d 93 (1972).

NAB respectfully submits that Respondent, NJSLC, does

not share NAB’s particular interest in assuring that neither

Congress nor the FCC abridges tie “freedom of the press”

guaranteed by the First Amendment. U.S. Const., Amend.

1. The journalistic activities of NAB’s member stations are

affected directly by the FCC’s Declaratory Ruling. Unlike

Respondent, NJSLC, broadcast stations are licensed and

regulated by the FCC and operate under the constant

threat of administrative sanction. Moreover, broadcast sta-

tions are “‘massively eng:ged in exactly .hat kind of com-

munication which the First Amendment was written to

protect.”! Whereas Respondent NJSLC is concerned with

First Amendment guarantees in the broad sense, NAB is

concerned with the encroachment of the FCC on the news

and editorial activities of its member stations, which are

part of the “free press” directly protected by the First

Amendment. Red Lion Broadcasting Company v. F.C.C.,

395 U.S. 367, 386 (1969); United States v. Paramount

Pictures, Inc., 833 U.S. 131 (1948).

Pursuant to its above-stated cbject, NAB herein seeks to

protect the rights of its member stations to make editorial

decisions and disseminate news without fear of government

censorship or sanction. We believe that broadcasters as

journalists and editors should determine whether or not an

item is news and, if so, whether or not it should be broad-

cast. In its Declaratory Ruling, the FCC has preempted

the news and editorial judgments of broadcasters. NAB

submits that in sc doing the FCC has ignored the explicit

proscriptions of the First Amendment. The Court’s action

in this case will directly and immediately affect the inter-

ests of broadcasters in states which conduct lotteries;? but

I Testimony of Bill Monroe, Correspondent, NBC News, before

the Subcommittee on Constitutional Righis of the Committee of

the Judiciary of the United States Senate. February 2, 1972, cited

in Brandywine-Main Line Radio, Inc. v. F.C.C., 473 F.2d 16, 73, n.

44 (1972) (Bazelon, C. J., dissenting).

2 Data compiled by NAB’s staff indicates that 15 states have en-

acted laws establishing state-conducted lotteries.

4

all broadcasters may feel the impact of the Court’s deci-

sion. Whereas this case concerns only the right to report

the winning number in a state-conducted lottery in a radio

or television station’s regular news broadcasts, this Court’s

decision, if favorable to Petitioner, FCC, could open the

door to further action by Congress and the FCC to cir-

cumscribe the freedom of the editorial function of broad-

cast journalists. Thus, NAB and all broadcasters are par-

ticularly concerned with the outcome of this case.

Wherefore, in view of the significance of this matter,

the NAB respectfully requests that it be granted leave to

file the annexed brief amicus curiae in the above-instituted

proceeding.

Respectfully submitted,

National Association of

Broadcasters

1771 N Street, N.W.

Washington, D.C. 20036

(202) 293-3560

JOHN B. SUMMERS

Counsel

JAMES J. POPHAM

May >. 1974 Of Counsel

(i)

TABLE OF CONTENTS

Page

INTEREST OF AMICUS... ........... «2

PRELIMINARY STATEMENT. .. .. .. 2... . 2

ARGUMENT:

I. THE FCC’s DECLARATORY RULING OPERATES

AS AN UNCONSTITUTIONAL PRIOR RESTRAINT

ON BROADCAST NEWS . . . . th opr tee. |

Ii]. IN DETERMINING THAT A NEWS REPORT OF

THE WINNING LOTTERY NUMBER IS A LIM-

ITED NEWS ITEM AND, THUS, NOT ENTITLED

TO FIRST AMENDMENT PROTECTION, THE

FCC HAS IGNORED THE FULL, UNEQUIVOCAL

PROTECTION AFFORDED BROADCAST NEWS

BY THE FIRST AMENDMENT .......... 8

RAPA ee lh gata a ae end ny Career ee ee ce ee

TABLE OF CITATIONS

Cases:

Banzhaf v. Federal Communications Commission,

405 F.2d 1082 (D.C. Cir. 1968), cert. den.,

oe ee OE oe oe a a a te ee ee ee

Bantam Books, Inc. v. Sullivan,

AES ae eR eee le ee Cae eee eee

Brandy wine-Main Line Radio, Inc. v. Federal

Communications Commission, 473 F.2d 16

(D.C. Cir. 1972), ceri. den, __ USS.

i) Dp ORs tee) STG ee EN ee See ree t

, MOS WORE AY

vs

(ii)

ot eh PAS

Carroll v, Princess Anne,

393 US. 175 (1968) .

Columbia Broadcasting System v. Democratic

National Committee, 412 U.S. 94 (1973) .

Gompers v. Bucks Stove and Range Co.,

221 US. 418 (1911) .

Kunz v. New York,

340 U.S. 290 (1957) .

Near v. Minnesota ex rel. Olson,

283 U.S. 697 (1931) .

New Jersey State Lottery Commission

v. United States, -s«sF.2d

(3d Cir. 1974)

New York State Broadcasters Association

v. United States, 414 F.2d 990

(2nd Cir. 1969) .

New York Times v. United States,

403 US. 713 (1971) .

Organization for a Better Austin v. Keefe,

402 US. 415 (1971) .

Red Lion Broadcasting Company v, Federal

Communications Commission, 395 U.S. 367

(1969)

Rosenbloom vy, Metromedia, Inc.,

415 F.2d 892 (3d Cir. 1969), aff'd

403 US. 29 (1971)

Rumely v. United States,

197 F.2d 166 (Dw. Cir. 1952), aff'd

345 US. 4: (1953)

. 9, tt, 12

» 3, 6, 7

(iii)

Schenck v, United States,

249 U.S. 47 (1919)

‘United States v. Paramount Pictures,

334 US. i31 (1948) .

Constitution, Statutes and Rules:

U.S. Constitution, First Amendment .

Communications Act of 1934, as amended:

47 USC. 8326

U.S. Criminal Code:

18 U.S.C. $1304.

Rules anj Regulations of the Federal

Communications Commission,

47 C.F.R. $873.122, 73.292,

73.656 (1972)

Miscellaneous:

3, 3, &, 9, 11, 12, 3

ye

Federal Communications Comr-.sion Decisions:

Declaratory Ruling, 14 F.C.C.2d 707 (1968). . . . . . 2

Supplementa! Declaratory pa 21 FCA.

2d 846 (1970)

2

Declaratory Ruling, 30 F.C.C.2d 794 (1971) 3, 4, 5, 7, 8, 10, 13

Memorandum Opinion and Order,

36 F.C.C.2d 93 (1972)

Kawper, Paul C., “The Role of the Press in a

Democratic Society”, Editor and Publisher,

February 16, 1974, at 7 .

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

NO. 73-1471

UNITED STATES OF AMERICA and

FEDERAL COMMUNICATIONS COMMISSION,

Petitioners,

V.

NEW JERSEY STATE LOTTERY COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF AMICUS CURIAE OF THE

NATIONAL ASSOCIATION OF BROADCASTERS

INTEREST OF AMICUS

The National Association of Broadcasters (hereinafter

NAB) submits this brief amicus curiae in support of Re-

spondent, New Jersey State Lottery Commission (herein-

after NJSLC). The interest of amicus NAB has been stated

in full in the Motion for Leave to File Brief Amicus Curiae,

attached hereto.

to

PRELIMINARY STATEMENT

On September 25, 1968, the Federal Communications

Commission (hereinafter FCC) issued a Declaratory Rul-

ing.' holding that the lottery statute, 18 U.S.C. 81304

(1964), and the FCC's lottery rules, 47 C.F.R. $873.122,

73.292, 73.656 (1972), applied to state-conducted lotter-

ies. Additionally, the FCC ruled on the legality of several

specific types of proposed broadcasts. On August 11,

1969, the United States Court of Appeals for the Second

Circuit set aside the Declaratory Ruling? and remanded it

to the FCC for reconsideration in light of the court’s hold-

ing. New York State Broadcasters Association, Inc. vy.

United States, 414 F.2d 990 (2nd Cir. 1969), cert. den.,

396 U.S. 1061 (1970). While agreeing with the FCC that

18 U.S.C. 81304 did apply to state-conducted lotteries,

the court held that the prohibition against broadcast of

“information concerning any lottery,” 18 U.S.C. 81304

(1964), applied ‘‘only to information that directly pro-

motes a particular existing lottery.’ New York State

Broadcasters Association, supra, at 997. Subsequently, on

March 2, 1970, the FCC released a Supplemental Declara-

tory Ruling? in response to the court’s expectation that

the FCC “‘apply its expertise” in providing “‘more specific

guidance” as to what information may and may not be

broadcast.

On February 18, 1971, Jersey Cape Broadcasting Cor-

poration requested that the FCC issue a declaratory ruling

as to the broadcast of the following statement during three

1 14 F.C.C.2d 707 (1968).

2 Id

3 2) F.C.C.2d 846 (1970).

consecutive regular newscasts commencing at noon each

Thursday, the day on which the winning number of the

New Jersey state-conducted lottery was selected:

“The winning state lottery number drawn today is (and

then recite the wianing number).”

The FCC ruled that the broadcast would violate 18

U.S.C. 81304 and the FCC’s Rules, 47 C.F.R. 873.122,

73,292, 73.6564 Petitions for reconsideration filed by

the New Jersey State Lottery Commission and by several

state and local officials were denied by the FCC.S On

January 2, 1974, the United States Court of Appeals for

the Third Circuit reversed the FCC’s Declaratory Ruling,

holding that the broadcast involved would be unadulter-

ated broadcast journalism and, therefore, protected by the

First Amendment and the Communications Act of 1934,

47 U.S.C. 8326 (1964). New Jersey State Lottery Com-

mission v. United States, ___ F.2d ____ (3rd Cir. 1974).®

NAB submits that the decision of the Third Circuit in

New Jersey State Lottery Commission v. United States,

supra, is correct, that the First Ainendment does bar FCC

censorship of news reports, as well as the imposition of

any subsequent sanction for broadcast of a particular news

report. Thus, NAB respectfully urges this Court to affirm

the decision of the Third Circuit to prevent the FCC from

4 Declaratory Ruling, 30 F.C.C.2d 794 (1971) (hereinafter cited

as Declaratory Ruling).

5 Memorandum Opinion and Order, 36 F.C.C.2d 93 (1972) (heve-

inafter cited as Reconsideration).

© The court’s opinion is reproduced in Petitioners’ Petition for a

Writ of Certiorari, at Appendix A.

4

illegally and unconstitutionally tampering with the content

of radio and television news broadcasts.

ARGUMENT

1. THE FCC’S DECLARATORY RULING OPERATES

AS AN UNCONSTITUTIONAL PRIOR RESTRAINT

ON BROADCAST NEWS.

The federal anti-lottery statute, 18 U.S.C. 81304 (1964),

provides that:

Whoever broadcasts by means of any radio

station for which a license is required by any

law of the United States, or whoever, operat-

ing any such station, knowingly permits the

broadcasting of, any advertisement of or in-

formation concerning any lottery, gift enter-

prise, or similar scheme, offering prizes de-

pendent in whole cz in part upon lot or

chance, or any list of the prizes drawn or

awarded by means of any such lottery, gift

enterprise, or scheme, whether said list con-

tains any part or all of such prizes, shall be

fined not more than $1,000 or imprisoned

not more than one year, or both.

Each day’s broadcasting shall constitute

a separate offense.

The FCC’s Rules, 8873.122, 73.292, 73.656 (1972), are based

on 18 U.S.C. 81304 and contain similar language. The

FCC’s Declaratory Ruling explicitly holds that broadcast

of the winning number of a state-conducted lottery in a

broadcast news report would violate 18 U.S.C. 81304 and

the FCC Rules, 8873.122, 73,292, 73.656 (1972). In that

they are nov directly prohibitory, but provide for subse-

quent punishment, the statute, 18 U.S.C. 81304 (1964)

and the FCC Rules, 873.122, 73,292, 73,656, do not con-

stitute a prior restraint per se. Nor does the FCC Declar-

atory Ruling have the same direct prohibitory effect as a

court injunction See, e.g, New York Times v. United

States, 403 U.S. 713 (1971); Near v. Minnesota ex rel.

Olson, 283 U.S. 697 (1931). Nonetheless, in intent and

effect it does operate as a prior restraint on the broadcast

of a specific news item. Any broadcast licensee would be

subject to administrative and criminal sanctions for broadcast-

ing a news report of the winning lottery number, just as the

newspaper in Near v. Minnesota, supra, was punishable for

contempt of court if it published material suppressed by

the court’s injunction granted pursuant to a Minnesota

statute. Thus, Mr. Chief Justice Hughes described the op-

eration of the Minnesota statute as “effective censorship.”

283 U.S. at 712. In fact, the FCC’s Declaratory Ruling

falls within the historical and authentic definition of cen-

sorship “that no publication can see the light of day un-

less it is approved in advance by a censor ...”? Whereas

broadcast licensees are not required to submit program ma-

terial to the FCC for clearance, in this case, a proposed

news report was submitted to the FCC prior to broadcast,

and the FCC ruled that the broadcast was prohibited.

Clearly, the FCC’s Declaratory Ruling can be viewed as

nothing less than a prior restraint on broadcast news re-

porting.

As a prior restraint on broadcast news, the FCC’s De-

claratory Ruling violates the First Amendment. The chief

purpose of the First Amendment guarantee of “freedom

7 Paul C. Kauper, “The Role of the Press in a Democratic So-

ciety”, Editor & Publisher, February 16, 1974, at 7.

re

of the press,’ U.S. Const., Amend. |, is to prevent previ-

Ous restraints upon publication. Near v. Minnesota, supre,

283 U.S. at 713. Thus, as the Chief Justice indicated in

Organization for a Better Austin v. Keefe, 402 U.S. 415,

419 (1971):

Any prior restraint on expression comes to

this Court with a “heavy presumption” against

its constitutional validity. Carroli vy. Princess

Anne, 393 U.S. 175, 181, 21 L.Ed. 2d 325,

331, 89 S. Ct. 347 (1968); Bantam Books,

Inc. v. Sullivan, 372 U.S. 58, 70, 9 L.Ed. 2d

584, 593, 83 S. Ct. 631 (1963).

Whereas the protection against prior restraint is not abso-

lute, limitations have been recognized only in exceptional

cases. Near v. Minnesota, supra, 283 U.S. at 716. For

example, the Court in Near noted that speech which hin-

dered the nation’s war effort, Schenck v. United States,

249 U.S. 47 (1919), incitements to violent overthrow of

the government or words that have “‘all the effect of

force,” Gompers v. Bucks Stove and Range Co., 221 U.S.

418, 439 (1911), might be subject to prior restraint. 283

U.S. at 716. In the more than three decades since Near

vy. Minnesota, no other standards for weighing the broad

right of the press to publish and the very narrow right of

the government to restrain publication have been developed.

New York Times y. United States, 403 U.S. 713, 761

(1971).

The present case falls far outside the ambit of the ex-

ceptional cases recognized in Near v. Minnesota, supra. A

news report of the winning lottery number poses no com-

parable, if indeed any, threat to the continued existence

of this nation, its government, or any of its people. In

fact, state governments which operate lotteries, pursuant

to legislation, do so to increase state revenues, thereby

providing more and better services to the people of the

States.

Moreover, what the present case does involve is a re-

straint on the dissemination of news by the press, and

the Court in Near never intended to sanction any such

restraint. Dissenting in Kunz v. New York, 340 U.S. 290,

307 (1957), Mr. Justice Jackson stated that Near v. Min-

nesota, supra, precluded any prior restraint on the press:

Of course, as to the press, there are the best

of reasons against any licensing or prior re-

straint. Decisions such as Near v. Minnescta,

283 U.S. 697, 78 L.Ed. 1357, 51 S. Ct. 625,

supra, hold any licensing or prior restraint of

the press unconstitutional and | heartily agree.

More recently, in his dissent in New York Times v. United

States, supra, the Chief Justice pointed out the continuing

validity of the principles espoused by the Court in Near:

So clear are the constitutional limitations on

prior restraint against expression, that from

the time of Near v. Minnesota, 283 U.S. 697,

75 L.Ed. 1357, 51 S. Ct. 625 (1931) until

recently in Organization for a Better Austin

v. Keefe, 402 U.S. 415, 29 L.Ed. 2d 1, 91

S. Ct. 1575 (1971), we have had little oc-

casion to be concerned with cases involving

prior restraints against news reporting in mat-

ters of public interest. 403 U.S. at 748.

This Court consistently has recognized that freedom

from prior restraint is the most essential of First Amend-

ment guarantees. The FCC’s Declaratory Ruling operates

=

as a prior restraint on and censorship of news. Therefore,

NAB submits that the FCC’s Declaratory Ruling contravenes

the most basic constitutional guarantees of freedom of the

press.

ll. IN DETERMINING THAT A NEWS REPORT OF

THE WINNING LOTTERY NUMBER IS A LIM.

ITED NEWS ITEM AND, THUS, NOT ENTITLED

TO FIRST AMENDMENT PROTECTION, THE

FCC HAS IGNORED THE FULL, UNEQUIVOCAL

PROTECTION AFFORDED BROADCAST NEWS

BY THE FIRST AMENDMENT.

The FCC’s Declaratory Ruling that a broadcast news re-

port of the winning lottery number was prohibited appar-

ently was premised on the determination that limited news

items are not entitled to the protection of the First Amend-

ment, U.S. Const., Amend. 1. In its Declaratory Ruling,

the FCC distinguished between legitimate news items of

general interest and limited news items. The FCC cited a

bona fide news announcement of persons who won the

top lottery prizes as an example of a legitimate news item

and stated explicitly that it was protected by the First

Amendment. In contrast, the FCC ruled that a news re-

port of the winning number was the kind of limited news

item that was prohibited by 18 U.S.C. 81304 (1964) and

the FCC’s Rules, 47 C.F.R. 873.122, 73.292, 73.656

(1972), because it would directly promote a lottery. 30

F.C.C.2d at 795.

The FCC’s action severely compromises the full, unequiv-

ocal protection afforded radio and television news report-

ing by the First Amendment. Although radio and televi-

sion were “unknown media when freedom of the press

was written into the Bill of Rights,”8 speech and press

8 Rosenbloom v. Metromedia, Inc., 415 F.2d 892, 895 (3d Cir.

1969), affd 403 US. 29 (1971).

se)

on radio and television ‘‘are freedoms protected by the

First Amendment.”? In United States v. Paramount Pic-

tures, 334 U.S. 131, 166 (1948), Mr. Justice Douglas,

speaking for an eight-member majority of this Court, first

recognized broadcasters’ First Amendment rights:

We have no doubt that moving pictures, like

newspapers and radio, are included in the

press whose freedom is guarantted by the

First Amendment. [Emphasis added].

This Court has never retreated from that basic position.

Most recently in Columbia Broadcasting System v. Demo-

cratic National Committee, 412 U.S. 94, 160 (1973), Mr.

Justice Douglas, concurring, pointed out tha

[T]he old fashioned First Amendment that

we have is the Court’s only guideline; and

one hard and fast principle which it an-

nounces is that government shali keep its

hands off the press. That principle has

served us through days of calm and eras

of strife and I would abide by it until a

new First Amendment is adopted. That

means, as I view it, that TY and radio, as

well as the more conventional methods for

disseminating news, are all included in the

concept of “‘press” as used in the First

Amendment and therefore are entitled to

live under the !aissez faire regime which

the First Amendment sanctions.

Although the special characteristics of the broadcast media

have on occasion justified the application of different First

Amendment standards to radio and television, the present

9 Rumely v. United States, 197 F.2d 166, 177 (DC. Cir. 1952),

aff'd 345 US. 41 (1953).

10

case involves news reporting and is easily distinguishable.

In Red Lion Broadcasting Company v. Federal Communi-

cations Commission, 395 U.S. 367, 390 (1969), this Court

found that “It is the right of the viewers and listeners, not

the right of the broadcasters which is paramount.” Thus,

the Court held that the FCC’s personal attack rules which

require that broadcast licensees provide reply time to per-

sons attacked on their facilities did not violate the First

Amendment. However, the Court was careful to note that:

There is no question here of the Comfnission’s

refusal to pernit the broadcaster to carry a

particular program. .. . Such questions would

raise more serious First Amendment issues.

395 US. at 396.

Similarly, in Banzhaf v. Federal Communications Commig-

sion, 405 F.2d 1082 (D.C. Cir. 1968), cert. den., 396 U.S.

482 (1969), the court held that an FCC ruling requiring

radio and television stations which carried cigarette adver-

tising to devote broadcast time to views against cigarette

smoking did not violate the First Amendment. Chief

Judge Bazelon indicated that the court so held because

no specch was actually banned and because product ad-

vertising is “less vigorously protected than other forms

of speech.” 405 F.2d at 1101. In contrast, the FCC’s

Declaratory Ruling does actualiy ban speech. Moreover,

it bans, not advertisements, but news, which is entitled

to the greatest possible protection of the First Amend-

ment. Cf. New York Times v. United States, 403 U.S.

713 (1971).

Radio and television are media of entertainment, in-

struction, opinion and advertising, but their most vital

and Gistinctive function is rapid dissemination of news.

in the Rosenbloom case, supra, the court recognized the

1]

““more apparent” need for constitutional protection of broad-

cast news reporting because its primary value to the public

is in “conveying the latest news as promptly as possible so

that it has the opportunity to be informed of news items

of possible immediate public concern.” 415 F.2d at 855.

Moreover, broadcasting has become the pre-eminent news

medium.'® Chief Judge Bazelon recently recognized this in

his dissent in Brandywine-Main Line Radio, Inc. v. Federal

Communications Commission, 473 F.2d 16, 73 (D.C. Cir.

1972), cert. den, SAU S. ___ (19773):

Today we have arrived at different con-

stitutional definitions as to what is protected

speech. Certainly broadcasting is included.

But perhaps more significant is the fact that

most Americans now consider television and

radio to be their most important news source.

[Footnotes omitted].

In this age of rapid, pervasive electronic journalism, the

First Amendment would be but a relic of lost freedoms if

it failed to fully and unequivocally protect broadcasters’

rights to edit and report news without fear of government

interference. Clearly, as Mr. Justice Stewart recognized in

his concurring opinion in the Columbia Broadcasting Sys-

tem case, supra:

The First Amendment prohibits the govern-

ment from imposing controls upon the press.

Private broadcasters are surely part of the

press. [Footnote omitted}. 412 U.S. at

133.

10 1972 survey conducted by the Roper Organization, Inc., showed

television to be the main source of news. What the People Think

of Television and Other Mass Media 1959-1972, Report by the Roper

Organization, Inc., p. 2, May 1973.

12

Moreover, in reserving for itself the power to decide what

is legitimate news and what is limited news, the FCC has

shown utter disregard for the fundamental First Amend-

ment value that editorial judgments be made by editors.

This principle was stated most succinctly by Mr. Justice

Stewart, concurring in Columbia Broadcasting System, su-

pra:

For if [First Amendment] “values” mean

anything, they should mean at least this: If

we must choose whether editorial decisions are

to be made in the free judgment of individual

broadcasters or imposed by bureaucratic fiat,

the choice must be for freedom. 412 USS. at

146.

NAB respectfully submits that in this regard it is partic-

ularly important that the decision of the Third Circuit be

affirmed. Any notion that the FCC can impose its jour-

nalistic judgments on broadcast news editors must be dis-

pelled and disavowed by this Court. A free press is truly

free only if editorial decisions can be made in an atmos-

phere unpolluted by the threat of government censorship.

or sanction. If the decision of this Court in this case leaves

even the slightest impression that the FCC can, on occa-

sion, act as a super editor of broadcast news, the federal

government will have gained an unprecedented stranglehold

on the flow of news to the American people. The door

would be opened for Congressional, Executive and adminis-

trative actions, purportedly to protect the public interest,

restricting dissemination of certain news items, deemed lim-

ited news items so as to circumvent the otherwise uncom-

promising guarantees of the First Amendment. Even the

remotest possibility of this sort of government supervision

oi the press must be foreclosed,

13

CONCLUSION

Amicus NAB submits that the FCC’s Declaratory Ruling

imposes an unconstitutional prior restraint on broadcast

news reporting. Moreover, in determining the newsworthi-

ness of a certain item the FCC has supplanted the editorial

judgments cf broadcast licensees. The First Amendment

will not tolerate such government interference with broad-

cast news reporting. Broadcast journalists are part of the

press entitled to the full, unequivocal protection of the

First Anendment, and prior restraints are particularly an-

tithetical to First Amendment values. Furthermore, Con-

gress provided that the FCC should be a regulator, not a

censor or an editor. Nothing could be more contrary to

the FCC’s prescribed role or present a more insidious threat

to freedom of the press than FCC ce.sorship of broadcast

news reporting.

NAB respectfully submits that this Court should not «:-

cord the slightest recognition to any right of the FCC to

declare broadcasts of certain aews items illegal. The First

Amendment must continue to stand as an impenetrable

barrier to the tentacles of government censorship or con-

trol of broadcast news. In short, the press is either free

or it is not free to report the news as it sees fit, and, once

the door is open to government control, it is not free.

14

WHEREFORE, for the reasons stated, NAB respectfi

requests that this Court affirm the judgment of the Cc

of Appeals for the Third Circuit holding the FCC’s De

atory Ruling an unconstitutional abridgement of freedc

of the press.

Respectfully submitted,

National Asscciation of

Broadcasters

1771 N Street, N.W.

Washington, D.C. 20036

(202) 293-3560

JOHN B. SUMMERS

Counsel

JAMES J. POPHAM

May 3, 1974 Of Counsel