Petition for Writ of Certiorari — Anti-Defamation League of B'nai B'rith, Pacific Southwest Regional Office v. Federal Communications Commission
Supreme Court brief1969
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INDEX
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oT Bg POET TTTIT TITER TTT Te ee 2
Constitutional and Statutory Provisions Involved .... 3
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(1) The Commission’s Fairness Doctrine and
Standard of Licensee Responsibility for Pro-
SE is a vubane bases sapbeaneeaWe ceeseune 4
(3) Deseription of Pettiomer .....cevccccescosece 5
[3) BUROUUREIOR GE TR EOE cos veccvrccccsscescons 6
(4) ‘Te Cotte BOORMORMED 2. ssccccceccccaccess 6
(5) The Licensee’s Attitude Toward Its Obligations
Under the Fairness Doctrine and iis Responsi-
bility for KTYM’s Programming ............ 9
(6) The Commission’s Opinions .................. 12
(7) The Decision of the Court of Appeals ........ 14
Reasons for Granting the Writ ................eeee. 16
SEE ov ececdeWdeeedenesdeeenewleaneerebentes 23
Appendix ED ciuwscowsadeaun chs ebeaeeecere sees eee la
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RE EE ov eho nee ccna cpiann vanes erie ee taeanens i3a
pS PUNTER TCT CT Tr er ee ee ee rer 67a
ROE Take de cc nconvnscvaseenenuseeeeenens ee 69a
SE We ok 465 wwik nas oaesasied anne ene 95a
MESSER OEE Sof ryt
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ii Index Continued
CITATIONS
CASES : Page
Banzhaf v. FCC & United States, 14 Pike & Fischer
Beem on aeen COA, BU, TGR « vicccecrccccesss 21, 22
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82-83
tr ae a ne ere 18
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .. 12
Garrison v. Louisiana, 379 U.S. 64 (1964) .......... 18
Henrv v. Collins, 380 U.S. 356 (1965) .............. 18
Linn v. United Plant Guard Workers, 383 U.S. 53
eee et een rrr 18
Near v. Minnesota, 283 U.S. 697 (1931) ............. 12
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 18
Simmons v. FCC, 169 F. 2d 670, cert. denied, 335 U.S.
ME oo Cue beak Meet abi Obst Ok obs we ee ke oe 19
Terminiello v. Chicago, 337 U.S. 1 (1949) ........... 12
Time, Inc. v. Hill, 385 U.S. 374 (1967) .............. 18
Trinity Methodist Church, South v. FRC, 62 F. 2d 850,
cert. denied, 288 U.S. 599 EE civcanneounens as 19
Radio Television News Directors Ass’n v. United
States & FCC, 400 F. 2d 1002, cert. granted, Janu-
ary 13, 1969, No. 75%.5 2 “Peers 21, 22
Red Lion Broadcasting Co. v. FCC, 381 F. 2d 908,
cert. granted, 389 U.S. 968 (1967) .............. 21, 22
ADMINISTRATIVE AGENCY DECISIONS:
Pacifica Foundation, 36 F.C.C. 147 (1964) ..........
United States Broadcasting Corp., 2 F.C.C. 208 (1935)
5, 17
WBNX Broadcasting Co., 12 F.C.C. 837 (1948) ...... "17
SraTuUTEs:
ee Se: ED vbn 4546400 boecr cass bieneceeres 2
Communications Act of 1934 ................... 16, 17, 21
Section 303(g), 47 U.S.C. § 303(g) ..............
MISCELLANEOUS:
a of the Fairness Doctrine in the Handling
of Controversial Issues of Public Importance, 29
Fe ee Cy EE hb oh bas heh obec er ceeness 5
Editorializing by Broadcast Licensees, 13 F.C.C. 1249
TE Saxdthsbesibeeteeneeesseacehesiesaeieews 4
IN THE
Supreme Court of the United States
OctToBER TERM, 1968
No.
ANTI-DEFAMATION LEAGUE OF B’NAI B’RITH, PACIFIC
SoutHwEst REGIONAL OFFICE, Petitioner,
Vv.
FEDERAL COMMUNICATIONS COMMISSION and TRANS
AmeErICA BROADCASTING CORPORATION, Respondents.
_-_—-- oe
PETITICN FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
The Anti-Defamation League of B’nai B’rith, Pa-
cific Southwest Regional Office, petitions for a writ
of certiorari to review the judgment of the United
States Court of Appeals for the District of Columbia
Cireuit entered in this cause on September 30, 1968.
2
OPINIONS BELOW
The opinion of the court of appeals is reported at
403 F.2d 169 (App. II, infra, pp. 2a-12a). The memo-
randum opinion of the Federal Communications Com-
mission (App. ITI, infra, pp. 13a-66a) and the agency’s
memorandum opinion and order denying reconsidera-
tion (App. V, infra, pp. 69a-95a) are reported at 4
F.C.C. 2d 190 and 6 F.C.C. 2d 385, respectively.
JURISDICTION
The judgment of the court of appeals was entered
on September 30, 1968 (App. I, infra, p.1a). By order
dated December 17, 1968, Mr. Justice Black extended
the time for filing the petition for certiorari to and
inciudine January 29, 1969. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).
QUESTION PRESENTED
The fairness doctrine of the Federal Communica-
tions Commission imposes upon broadcast licensees an
affirmative duty to air varying viewpoints on contro-
versie! public issues. The Commission’s standard of
licensee responsibility requires broadcast licensees to
exercise supervision and control over all material dis-
seminated through their facilities and to make pro-
grammiug judgments reasonably related to the public
interest. Respondent Trans America Broadcasting
Corporation (the licensee of Radio Station KTYM)
knowingly or recklessly and irresponsibly allowed the
recurrent broadcast over KTYM’s facilities of false
and defamatory appeals to anti-Semitic prejudice, and
it did not seek out exponents of or broadcast opposing
viewpoints. Only after petitioner had complained
about the false and defamatory, anti-Semitic content
3
of the broadcasts did the licensee even offer reply time
on behalf of the maligned group and individual. The
Commission, upon respondent’s application, automat-
ically renewed KTYM’s broadcast license without a
hearing. The agency and the court of appeals con-
cluded that the licensee’s offer of reply time fully satis-
fied, as a matter of law, its public service obligations
under the fairness doctrine and the standard of licensee
responsibility, ruling that the licensee’s First Amend-
ment right of free speech precluded the Commission
from holding a hearing to determine whether, in view
of the licensee’s past programming decisions, the public
interest would be served by a grant of its renewal ap-
plication. The following question is presented:
Is the Commission, in applying its fairness doctrine
and standard of licensee responsibility in the above
circumstances, precluded by the First Amendment from
holding a hearing to determine whether a broadcast
licensee has adequately performed his duty to serve
the public interest ?
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
The constitutional and statutory provisions involved
are set forth in App. VI, infra, pp. 95a-96a.
STATEMENT
This is a petition for certiorari from a judgment of
the court of appeals affirming orders by which the
Federal Communications Commission granted, without
a hearing, the application of Trans America Broadeast-
ing Corporation for renewal of the radio broadcast
license of Station KTYM. Petitioner filed pleadings
with the Commission opposing an automatic grant of
4
the application and requesting that a hearing be held
to determine whether renewal of K TY M’s license would
serve the public interest in view of the licensee’s con-
tinuing disregard of its responsibility for the content
of programs broadcast over its facilities and its re-
current violation of its obligation, under the fairness
doctrine, to air varying viewpoints on controversial
public issues. The Commission, with Commissioner
Cox dissenting, ruled that the First Amendment’s
guarantee of free speech precluded it from holding the
requested hearing, and the court of appeals affirmed
the agency’s decision.
(1) The Commission’s Fairness Doctrine and Standard of
Licensee Responsibility for Programming
In implementation of its statutory duty to protect
the public interest in radio broadcasting, the Commis-
sion has promulgated the fairness doctrine and the
standard of licensee responsibility for the content of
programs broadcast over the licensee’s facilities. There
is no dispute in this case as to the obligations those
pronouncements impose upon broadcast licensees. The
Commission stated in Editorializing by Broadcast Li-
censces, 13 ¥'.C.C. 1246, 1251 (1949), that under the
fairness doctrine:
‘*TB]roadcast licensees have an affirmative duty
generally to encourage and implement the broad-
cast of all sides of controversial public issues over
their facilities, over and beyond their obligation to
make availatle on demand opportunities for the
expression of opposing views. It is clear that any
approximation of fairness in the presentation of
any controversy will be difficulty [sic] if not im-
possible of achievement unless the licensee plays
a conscious and positive role in bringing about
D
balanced presentation of the opposing viewpoints.”’
[Emphasis added.]
In its brief in the court below, the Commission re-
affirmed this duty (see Brief for Appellee, pp. 20-21).
See also, Applicability of the Fairness Doctrine in the
Handling of Controversial Issues of Public Import-
ance, 29 F'.R. 10415 (FCC, 1964).
In the same brief (pp. 16-17), the Commission ac-
knowledged that ‘‘licensee responsibility is a keystone
uf the regulatory scheme.’’ And it has long been settled
that a responsible licensee is one who has exercised
‘*[c]omplete supervision of and control over programs,
including careful examination of their content’’
(United States Broadcasting Corp., 2 F.C.C. 208, 225
(1935) ), and ‘‘bas made programming judgments rea-
sonably related to the: public interest’”’ (Pacifica Foun-
dation, 36 F.C.C. 147, 149 (1964) ).
(2) Description of Petitioner
Petitioner is Anti-Defamation League of B’nai
B’rith, Pacific Southwest Regional Office (‘‘ADL’’).
B’nai B’rith is the oldest and largest national Jewish
organization, having been founded in 1843. ADL car-
ries on the educational work of B’nai B’rith, function-
ing through regional offices around the country. The
coverage of the Pacific Southwest Regional Office in-
cludes the service area of Radio Station KTYM. (R.
395.)
1°*R, —’’ references are to the certified record of the proceed-
ings before the Commission. ‘‘J.A. —’’ references are to those
portions cf the record contained in the joint appendix filed
with the court of appeals.
Ei at ar et rata aie
6
(3) Description of KTYM
Station KTYM is licensed to respondent Trans
america Broadcasting Corporation, all of whose stock
is owned by Mr. A. J. Williams. K'TYM is licensed to
serve Inglewood, California, part of the Los Angeles
metropolitan district. (R. 1,10.) One of the regular
programs broadcast by KTYM is entitled ‘‘Richard
Cotten’s Conservative Viewpoint.’ ?
(4) The Cotten Broadcasts
Petitioner became interested in KTYM’s service
when Jewish residents in the station’s service area com-
plained to it about a Cotten broadcast of October 7,
1964 (R. 154). That broadcast, as the court of appeals
recognized, had woven through it innuendo and insinu-
ation ‘‘equating Judaism with Socia!'ism and Socialism
with Communism”? (App. II, infra, p. 32a).2 The
broadcast also contained an unfair, virulent and de-
famatory attack on ADL and one of its officials. Cotten
charged that ADL General Counsel, Arnold Forster,
had been a Communist spy (quoting from a letter by
Joseph P. Kamp read into the Congressional Record by
Representative Clare E. Hoffman) (App. ITI, infra,
pp. 44a-45a) :
“If you can get President Truman to let you
look at the FBI files, you will discover that For-
ster’s right name is Fastenburg an’ that he was
a member of the Communist spy ring.”’
2 This is a sponsored program for which the station receives pay-
ment. It is 15 minutes in length and is broadcast five days a week.
(J.A. 19.)
® The transcript of the October 7, 1964, broadcast is reprinted as
part of Commissioner Cox’s dissenting statement, App. IIT, infra,
pp. 42a-48a.
7
As support for his equating Judaism and Commu-
nism, Cotten alluded to the following quotations al-
legedly appearing in two publications—‘‘ ‘Scratch a
professional anti-Communist and you will find an anti-
Semite’ ’’ and ‘‘ ‘Anti-Communism is anti-Semitism’ ”’
—and concluded (7d. at 43a) :
‘‘Now, I have probably never brought you any
single message more important than the preceding.
‘Anti-Communism is anti-Semitism’ anc ‘Scratch
a professional anti-Communist and you will find an
anti-Semite.’ Where do we go from here? Do we
bow our necks because of the smear or do we do
the best we can to expose those who would subvert
our Constitution, our way of life and trust the facts
can stand on their own two feet? I know not what
course you choose to follow, but for me, I choose
the latter.’’
To further support his thesis that Judaism and Com-
munism are one, Cotten asserted (id. at 47a):
‘‘Tt was the eminent authority, Rabbi Stephen
Wise, founder of the . . . powerful political Ameri-
can Jewish Congress in 1935 who said ‘Some call
it Marxism but I call it Judaism.’ ”’
Cotten, in a series of broadcasts on January 6, 7,
and 8, 1965, levied another attack on ADL, American
Jewish Congress and the Jewish community.* He again
dredged up the Rabbi Wise canard and the anti-Com-
munism is anti-Semitism quotations (App. III, infra,
pp. 58a, 55a) and, continuing, said (td. at 55a) :
‘‘May I suggest you bear this in mind as you
read of the ADL and the AJC [American Jewish
* The transcripts of these broadcasts also are reprinted as part of
Commissioner Cox’s dissenting statement, App. III, infra, pp. 49a-
62a.
IT PRE IO TT
8
Congress] declaring war on the so-called ‘radical
right’ which is, after all, trying te defend America
from Communism. You see, my friends, we know
that Communism and socialism are one. Last that
you remember.also the thinking indicated by Israel
Zangwill, Socialism is Judaism and Judaism is
Socialism, and a bit further, ‘My brothers, how can
we keep Judaism in a land where there is no
Socialism ?’ ”’
The alleged link between Judaism and Communism
permeates these broadcasts. For example, Cotten dis-
cussed one Robert Edward Edmondson who, according
to Cotten, endeavored (td. at 54a)—
‘to expose what he deemed to be an international
conspiracy which appeared to have a great many
Jewish adherents. And suddenly, as he fought to
expose ‘Socialism, Communism, one worldism,’ he
found his meager resources pitted against the
American Jewish Congress and it’s limitless ‘ power
of the purses.’ His contention was that under
FALSE JEWISH LEADERSHIP, the down-
fall of the nation was being engineered. His
documentation would appear irrefutable. .. .’’
In another broadcast, on May 27, 1965, Cotten, using
standard Aesopian technique, attacked Zionism, stating,
for example (in a quotation from former California
State Senator Jack Tenney) (R. 50):
‘¢ ‘Zionism may be said to be as un-American as
Communism or Fascism.’ ”’
Relating the Tenney quotation to United States immi-
gration policy, Cotten pointed out that in 1964 about
7,000 Jews had immigrated to America, and said (R.
51):
9
‘*All freedom loving people should unite in en-
couraging immigration only from those countries
and those peoples who will truly become fully inte-
grated members of society, and fight for the preser-
vation of the Republic, not for the transformation
of our nation into that of a satellite nation, dis-
arraed, and subject to some form of world govern-
ment. Particularly not under a one-world govern-
ment dictated to from Israel where the Supreme
Court of all mankind will hold judgment.’’®
(5) The Licensee’s Attitude Toward Its Obligations Under the
Fairness Doctrine and Its Responsibility for KTYM’s
Programming
Mr. Williams, the owner of KTYM, auditioned Cot-
ten’s October 7, 1964, program (discussed supra, pp.
6-7) before it went on the air and also listened to it
while it was being broadcast (R. 211). Yet he never
on his own initiative asked Cotten for documentation
of any of the accusations made therein. Indeed, there
is nothing in the record to indicate that—prior to being
contacted by ADL—Mr. Williams ever concerned him-
self with the questions whether the airing of Cotten’s
bigoted, defamatory accusations is in the public interest
5 The record contains transcripts of similar defamatory innuendos
and accusations made in other broadcasts. See, e.g., R. 162-65,
539-40.
_ During his broadeasts Mr. Cotten asks listeners to write him for
written material. The material made available in response to these
invitations has included the scripts of his broadcasts as well as
additional literature, much of it in the same false, defamatory and
bigoted vein as the broadcasts. One of the pieces of mail Mr. Cotten
has thus circulated is entitled ‘‘Zion’s Fifth Column.”’ It argues
that Zionism is an international menace and a threat to the Ameri-
ean people; that ‘‘[i]n its political racism it patterns Nazism”’;
and that ‘‘the Anti-Defamation League may be properly termed
a ‘private Gestapo’’’ (R. 147, 148, emphasis in original). See
also, ‘‘Abraham Lincoln and the Rothschilds, ’’ R. 531-38.
POMEL LIED
10
and whether he should affirmatively seek out exponents
of varying viewpoints.
After learning about Cotten’s attacks ADL officials
attempted unsuccessfully to resolve the matter at a
meeting with a reluctant Mr. Williams (see R. 155,
156). ADL thereafter filed a complaint with the Com-
mission requesting that KTYM’s renewal application
be designated for a hearing (J.A. 29-36).
The complaint alleged that the owner of KTYM
knowingly, or in reckless disregard of his responsibili-
ties as a station licensee, had permitted Cotten repeat-
edly to broadcast deceptive and misleading anti-Semitic
material in ‘‘a bigoted attempt falsely to equate, Com-
munism and Judaism’”’ (J.A. 29). It further charged
that Cotten’s programs had included ‘‘defamatory and
untrue’”’ attacks on ADL and some of its principal offi-
eers and staff; that KTYM had not provided advance
notice of the attacks, in disregard of the Commission’s
fairness doctrine; that ‘‘[o]nly after the licensee had
been spoken to by representatives of the ADL, and
asked for a tape of the offending broadcasts, was such
information made available’’; and that only ‘‘after
some discussion [did] the licensee .. . offer equa! time
for a reply”? (J.A. 34, 35). This belated offer was
rejected because, in the view of ADL, a ‘‘reply”’ could
serve no useful purpose (J.A. 31).
Mr. Williams’ response to the compiaint on behalf
of KTYM (J.A. 38-66), in addition to repeatedly im-
pugning the motives of ADL (e.g., J.A. 50, 54-55, 58),
asserted that—
‘‘to determine what is in fact ‘an attack,’ the
licensee is at a loss. KTYM considers it patently
unfair to ask any man who is not a member of a
11
particular organization which may be dedicated to
fostering its own particular brand of prejudices as
against the prejudices of other people and organi-
zations to develop the same sensitivity to ‘criticism’
of the precepts of the offended organization, as :
would the members of that offended organization.”’
[J.A. 64-65, quoted as part of Commissioner Cox’s :
dissenting statement, App. III, infra, p. 40a.]
i daa
The response also dwelt upon ADL’s failure to sue
Cotten, pointing out that the courts or Post Office De-
partment could provide redress (J.A. 51, 52), and im-
plying that the failure to sue for libel established the 4
truth of Cotten’s anti-Semitic accusations and his
charges against ADL and its officials (e.g., J.A. 42,
52).
In a subsequent document filed with the Commission,
Mr. Williams argued that he was unable to ‘‘judge”’
Cotten’s broadcasts (R. 247):
‘*KTYM in stating ‘Who am I to judge?’ meant
it to be understood by any objective person that
when a commentator on KTYM spends his full
time and talent to prepare a 15-minute broadcast
per day (on 25-plus stations) that commentator
must be reasonable and practical. In two years of
broadcasting and of uttering lies and libel, he would
have long since been discredited. KTYM in stating
“Who am I to judge?’ meant it understood by anv
objective person that when a delegation of paid
professionals from a private pressure group shows
up to counter what the commentator says, and ex-
pects that KTYM accept their credentials as
against the commentator’s— Who am I to judge?’
signifies—‘if you feel you have a legitimate point
in opposition, be KTYM’s guest and air your view.
Who am I to know that you are right? ”’
12
(6) The Commission’s Opinions
On June 17, 1966, the Commission released a memo-
randum opinion and a letter to KTYM granting its
license renewal application and denying ADL’s request
for a hearing. The Commission found that the October
7, 1964, broadcast contained a personal attack on ADL
and one of its officials; and that, in violation of the
fairness doctrine, the licensee did not advise ADL »f
these attacks in advance or furnish ADL with scripts,
with the offer of opportunity for reply coming only
after ADL had complained. However, the Commission
concluded that no action was required because the per-
sonal attacks were few and isolated and the station
ultimately did offer reply time (App. IT1, infra, p.
13a; App. IV, infra, pp. 67a, 68a.)
As to the general defamatory, anti-Semitic material
permeating the Cotten broadcasts, the Commission
found that those broadcasts would ‘‘surely be highly
offensive to many persons of the Jewish faith as well
as to fair-minded people of other faiths’’; that the
broadcasts encouraged bigotry and prejudice; and that
‘*T w]e do not hold that these broadcasts, or any similar
broadcasts, were in the public interest ...’’ (App. TIT,
infra, pp. 13a-14a, 16a). Nonetheless, citing the land-
mark First Amendment decisions in Terminiello v.
Chicago, 337 U.S. 1, 4 (1949), Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942), and Near v. Minne-
sota, 283 U.S. 697 (1931), the Commission ruled that
the First Amendment rendered it powerless to act be-
cause (7d. at 15a):
‘‘To require every licensee to defend his decision
to present any controversial program that has been
complained of in a license renewal hearing would
13
cause most—if not all—licensees to refuse to broad-
cast any program tnat was potentially controversial
or offensive to any substantial group.”’
In the Commission’s view, all it may require of li-
censees, consistently with the constitutional right of
free speech, is that the victims of false and defamatory
charges be given an opportunity to respond (id. at
16a).°
Dissenting from what he described as an ‘“‘incredi-
ble’’ decision, Commissioner Cox observed that the
Commission had ruled, ‘‘contrary to every relevant pre-
cedent of the courts and the Commission itself, that it
is no proper concern of the Commission whether the
[Cotten] broadcasts were or were not consistent with
the public interest” (id. at 17a); and he pointed out
that, in his opinion, ‘‘[t]here is . . . no basis for the
majority’s view that First Amendment considerations
render it... helpless to act’’ (id. at 20a).
ADL filed a petition for reconsideration which was
denied on essentially the same constitutional rationale.’
The Commission emphasized that it was enunciating a
broad rule ‘‘applicable overall to the broadcast. field’’ ;
that the rule was based on ‘‘an overriding policy con-
sideration”’ in favor of free speech; and that ‘‘serious
constitutional questions would be raised by any con-
*In the accompanying letter to KTYM, notifying the station
that its license had been renewed, the Commission pronounced
that the hearing sought by ADL could not ‘‘be countenanced under
the Constitution, the Communications Act, or the Commission’s
policy ...’’ (App. IV, infra, p. 68a).
7Commissioner Cox again dissented. Former Commissioner
Loevinger filed a concurring opinion. Commissioner Johnson did
not participate. (See App. V, infra, p. 69a.)
TE OCR ae eC
OIE ELF REN I eI Hee Pe OF MIE ENT RII IY AGL GRIMS TILE PRE fT NER NOL Hi TUTE IND
-~ rs
i a A a a a tk a ets
14
trary course’? (App. V, infra, pp. 70a, 72a). The
latter point was elaborated upon at length in Commis-
sioner Loevinger’s concurring opinion where he as-
serted his view that this case was governed by the
principle that (id. at 94a-95a)—
‘‘Tajny rule which would directly or indirectly
estahb'ish a test of content for views which are en-
titled to be spoken or heard through the broadeast-
ing media is inconsistent with the First Amend-
ment.”’
(7) The Decision of the Court of Appeals
The District of Columbia Circuit affirmed the Com-
mission’s orders. The court stressed the licensee’s
offer of reply time to ADL (App. II, infra, pp. 3a, 4a,
5a) ; it quoted at length from Commissioner Loevinger’s
concurring opinion on the relationship between First
Amendment rights and Commission power involving
programming ;* and it observed that Commissioner
8 ‘‘For the FCC to promulgate rules regarding permissible
and impermissible speech relating to religion would be not
only an egregious interference with free speech in broadcasting,
but also an unconstitutional infraction of the free exercise
clause and the establishment clause of the First Amendment.
* * t *
‘Tt is not only impractical—and impossible in any ultimate
sense—to separate an appeal to prejudice from an appeal to
reason in this field, it is equally beyond the power or ability
of authority to say what is religious or racial. There are
eenturies of bloody strife to prove that man cannot agree on
what is or is not ‘religion.’
* * ® *
‘*Nevertheless these subjects will and must be discussed. But
they cannot be freely discussed if there is to be an official
ban on the utterance of ‘falsehood’ or an ‘appeal to prejudice’
as officially defined. All that the government can properly
do, consistently with the right of free speech, is to demand
15
Loevinger’s opinion ‘‘restated some basic propositions
which seem to us unanswerable”’ (id. at 6a).
Judge Wright, in a concurring opinion, observed
‘“‘that a license to run a radio station is not a license
to libel’’ (App. II, infra, p. 82). Drawing a distinction
between personal and group libels, he stated that the
latter make ‘‘a stronger claim for First Amendment
protection”’ (7d. at 10a-11a, fn. omitted) and concluded
that (td. at lla):
“Station KTYM offered the Anti-Defamation
League substantial time to reply to the anti-Semitic
broadcasts. This application of the ‘fairness doc-
trine’ will have to suffice.’’ ®
Continuing, however, Judge Wright noted that (ibid)—
‘fas this case illustrates, there is a substantial flaw
in the theory of the fairness doctrine. Not sur-
prisingly, the Anti-Defamation League refused to
dignify or exacerbate the attack by replying. It is
likely that other groups would similarly refuse to
reply. Under such circumstances, the Commission
may decide to require a licensee to seek with rea-
sonable diligence exponents of other views when
that the opportunity be kept open for the presentation of all
viewpoints. ...
* a * +
“*Talk of ‘responsibility’ of a broadcaster in this connection is
simply a euphemism for self-censorship. . . . Attempts to
impose such schemes of self-censorship have been found as
unconstitutional as more direct censorship efforts by govern-
ment. Smith v. California, 361 U.S. 147 (1959); Bantam
Books v. Sullivan, 372 U.S. 58 (1963); Washington Post v.
Keogh, 125 U.S. App. D.C. 32, 365 F. 2d 965 (1966), cert.
denied, 385 U.S. 1011 (1967).”” [App. II, infra, pp. 6a-8a,
quoting App. III, infra, pp. 91a-93a.]
°So far as personal libels are concerned, Judge Wright con-
curred in the court’s decision because he found ‘‘no pattern of
repeated individual libels’’ in this case (id. at 10a).
16
it presents one side of a controversial issue in
which a group or class is attacked.”’
REASONS FOR GRANTING THE WRIT
This case presents a question of major significance
in defining the proper relationship between the First
Amendment’s guarantee of free speech, on the one
hand, and, on the other, the fairness doctrine and the
standard of licensee responsibility for programming
promulgated by the Federal Communications Commis-
sion in implementation of its statutory duty to ‘‘en-
courage the larger and more effective use of radi» in
the public interest’? (Communications Act of 1934,
Section 303(g), 47 U.S.C. § 303(g)).
The specific issue is whether the First Amendment
precludes the Commission from holding a hearing on
the renewal application of a radio station licensee which
—in violation of the balanced programming require-
ments of the fairness doctrine and in disregard of its
responsibility for the content of all programs aired
over its facilities (see supra, pp. 4-5)—(a@) broad-
east a series of programs containing recurrent bigoted
appeals to anti-Semitic prejudice; (b) permitted these
broadcasts (and the dissemination of related material)
either knowing that statements and accusations made
therein were false and defamatory or recklessly disre-
garding their false and defamatory nature; (c) failed
to send attacked parties a script and to offer them reply
time until they otherwise learned of the attack and
complained; (d@) sought to force the individuals in the
victimized group either to debate, and thus exacerbate,
these reckless charges or to ignore them and thus be
unable to counteract with the station’s audience their
defamatory vilification and prejudice; and (e) affirmed
to the Commission an intention to continue operating
17
without affirmatively seeking out exponents of varying
viewpoints on controversial public issues and without
checking or assuming any responsibility for the nature
or truth of the material broadcast over its facilities,
asserting that its responsibiltiy is limited solely to pro-
viding time for those victims who desire a chance to
reply.
Despite the Commission’s inability to find that the
pattern of conduct described above was in the public
interest (see App. III, infra, p. 16a), the agency auto-
matically renewed KTYM’s license, and, affirming that
action, the court of appeals quoted with approval the
Commission’s reasoning :
“‘ Any other position would stifle discussion and de-
stroy broadcasting as a medium of free speech. To
require every licensee to defend his decision to pre-
sent any controversial program that has been com-
plained of in a license renewal hearing would cause
most—if not all—licensees to refuse to broadcast
any program that was potentially controversial or
offensive to any substantial group. More often
that [sic] not this would operate to deprive the
public of the opportunity to hear unpopular or un-
orthodox views.’’ [App. II, infra, p. 4a, quoting
App. ITI, infra, p. 15a.]
Tt is important that this Court review the decision
below, for, if that decision is permitted to stand, broad-
east licensees will have virtually unreviewable discre-
tion to act irresponsibly in program selection, contrary
to the clear purpose of the Communications Act of
1934. Itis inconceivable that Congress intended broad-
east licensees to have “‘ [t]he right to determine, select,
supervise, and control programs. . .,’’’® without being
10 United States Broadcasting Corp., 2 F.C.C. 208, 225 (1935) ;
see WBNX Broadcasting Co., 12 F.C.C. 837, 840-41 (1948).
settles 0 ate
SF PIE ee
18
potentially accountable in a license renewal hearing
for the manner in which they have exercised that right.
Moreover, contrary to the tribunals below, the First
Amendment does not require that broadcast licensees
be accountable only to their conscience for the knowing
or reckless transmission of false and defamatory ac-
cusations. As this Court recently ruled, ‘‘the knowingly
false statement and the false statement made with reck-
less disregard of the truth, do not enjoy constitutional
protection.”? Garrison v. Louisiana, 379 U.S. 64, 75
(1964) (emphasis added); see Henry v. Collins, 380
U.S. 356 (1965) ; New York Times Co. v. Sullivan, 376
U.S. 254, 279, 280 (1964) ; Time, Inc. v. Hill, 385 U.S.
374, 387-88 (1967); Beckley Newspapers Corp. v.
Hanks, 389 U.S. 81, 82-83 (1967). In Garrison the
court held that utterance of reckless or malicious false-
hood could constitutionally subject one to criminal
punishment for defamation. And the other cases
would allow civil damages in similar circumstances.
See also the cases cited in Judge Wright’s concurring
opinion, App. II, infra, pp. 9a-10a, fns. 2, 3.
Innn v. United Plant Guard Workers, 383 U.S. 53
(1966), illuminates the error below even more clearly.
The Court there ruled that false and defamatory state-
ments maliciously published by either party to a union
organizing campaign are actionable under State law,
pointing out that ‘‘the most repulsive speech enjoys
immunity provided it falls short of a deliberate or
reckless untruth. But it must be emphasized that
malicious libel enjoys no constitutional protection in
any context.’ 383 U.S. at 63 (emphasis added). In
support of this conclusion the Court noted with ap-
proval that ‘‘intentionally . . . circulating defamatory
or insulting material known to be false’? may result
in the loss of rights under the Labor Acts. Jd. at 60-61.
19
Using similar reasoning the Federal Communications
Commission has denied license renewal applications
and taken other remedial action against licensees be-
cause of programming deficiencies, and the courts con-
sistently have upheld the agency’s orders against First
Amendment attacks. E.g., Trinity Methodist Church,
South v. FRC, 62 F. 2d 850, 853 (C.A.D.C.), cert. de-
nied, 288 U.S. 599 (1933) ; Simmons v. FCC, 169 F. 2d
670, 672 (C.A.D.C.), cert. denied, 335 U.S. 846 (1948).
This line of authority, extending over a forty-year
period, was neither overruled by the Commission nor
challenged by the court below despite petitioner’s re-
liance before both tribunals upon this group of cases.
The tribunals below, ignoring the above precedents
and acting under a mistaken view that their rulings
were compelled by the First Amendment, made in-
violate speech which has never enjoyed constitutional
protection; they did so in the belief that their rulings
would promote freedom of expression and robust de-
bate. That belief is misplaced. The decisions below
will merely entrench the position of persons who would
irresponsibly defame others, adding nothing to the
national debate on important public issues. Since
broadcast licensees, under the court’s and Commis-
sion’s rationale, no longer have any affirmative obliga-
tions in regard to programming—having only to offer
reply time to victims of false and defamatory accu-
sations—the decisions below ensure that other view-
points on controversial issues will not be aired in situ-
ations where a “‘reply’’ would not be meaningful, or
where a reply would simply provide added circulation
to defamatory material, or where the victims do not
learn of the false and defamatory broadcasts.
This is well illustrated by the facts of this case
where, as Judge Wright correctly perceived, the right
to reply is not a satisfactory vehicle for promoting the
PE NPOIR a Te Ian
i abet
20
public interest (see App. II, infra, p. 1la). Cotten
repeatedly has broadcast defamatory appeals to anti-
Semitic prejudice, purporting to support his denun-
ciations with false and misleading information. Cot-
ten’s broadcasts are specific in their condemnation and
accusation but vague and imprecise in their relation
to outside events. They suggest mysterious interna-
tional conspiracies, nebulous links to Communism, un-
specified acts of treason. They are the stuff of the
propagandist and character assassin, not the news
commentator.
A fair and meaningful rebuttal is impossible in these
circumstances. If the rebuttal focused on important
public issues with which Jews are involved, it would
have no relationship to the Cotten broadcasts. If the
rebuttal focused on Cotten’s false and defamatory ac-
cusations, it would serve only to focus more attention
upon and lend dignity to Cotten’s remarks, as can be
seen from KTYM’s statement of the issues it felt ADL
should discuss (R. 221):
‘*Cotten refers to the ADL as a ‘Jewish Gestapo’.
This is certainly a statement to be countered and
one worthy of reply. Statements to the effect that
Rabbi so-and-so said this-and-that is a question
of fact, and if incorrect, should be countered. The
fact that the Jewish World is a Communist news-
paper, and one not typical of the beliefs of the
majority of the Jewish people, is a subject worthy
of a reply. Cotten has made these assertions.
KTYM has offered the ADL equal time without
charge.”’
Yet, under the decisions below, KTYM need not
examine the content of Cotten’s future programs; nor
does the licensee have any obligation to seek out will-
ing exponents of other viewpoints. The licensee,
in sum, may allow Cotten to say anything he pleases,
21
and the Commission is powerless to act in any way
except to require that defamed victims be allowed
to reply, even though a reply may be neither feasible
nor meaningful, and the defamed individuals and
groups understandably may be reluctant to publicly
involve theniselves further in the dispute and ‘‘dignify
or exacerbate the attack ...’? (App. IT, infra, p. 11a,
Judge Wright, concurring). The Commission’s power
(and duty) to protect the public interest obviously
cannot depend on the willingness of third-parties to
answer false and defamatory charges. Unless the Com-
mission is enabled to require broadcast licensees to
account at a renewal hearing for their failure affirma-
tively to seek out willing exponents of varying view-
points on controversial issues and to exercise rea-
sonable judgment as to what they permit to be aired
over their facilities, the Communications Act’s objec-
tive of fostering full, fair debate and factual com-
mentary will be retarded to the detriment of the listen-
ing public. |
Finally, it should be emphasized that while the issue
in the instant case is independently significant for
the reasons discussed above, that issue takes on added
importance when considered in light of three other
recent cases raising similar questions of the extent to
which the First Amendment permits Commission ac-
tion involving an appraisal of the content of broadcast
material, Red Lion Broadcasting Co. v. FCC, 381 F. 2d
908 (C.A.D.C.), cert. granted, 389 U.S. 968 (1967) ; Ra-
dio Television News Directors Ass’n v. United States c&:
FCC, 400 F. 2d 1002 (C.A. 7), cert. granted, January
13, 1969 (No. 717, O.T. 1968); Banzhaf v. FCC &
United States, 14 Pike & Fischer R.R. 2d 2061 (C.A.
D.C. 1968). These cases all involve First Amendment
challenges to various actions taken by the Commission
under the fairness doctrine, t.e., as to personal attacks
Dt Sep tsa tir witiisitlad cided epzdiscglahds
22
(Red Lion and Radio Television Ass’n), political edi-
torials (Radio Television Ass’n) and cigarette adver-
tising (Banzhaf)." The instant case complements
those issues, presenting the fundamental question
whether the Commission’s requirement that licensees
offer reply time in certain circumstances defines the
outer limits of the power of the Commission to concern
itself with the public interest in licensee programming
without running afoul of the First Amendment’s
guarantee of free speech.
It is particularly important that this Court resolve
the issue in the instant case in conjunction with its
resolution of the conflicting decisions in Red Lion and
Radio Television Ass’n as to the constitutionality of
the requirement that licensees provide reply time to
victims of personal attacks. In Radio Television Ass’n
the Seventh Circuit struck down the reply time re-
quirement as violative of the First Amendment, rea-
soning that enforcement thereof would ‘‘operate to
discourage a licensee from engaging in the broadcast
of controversial issues... .’’ 400 F. 2d at 1014.
The Seventh Circuit, however, drew a sharp distine-
tion between the affirmative, balanced programming
obligations imposed upon licensees by the overall fair-
ness doctrine and the requirement that licensees pro-
vide reply time for persons personally attacked over
their facilities. The court refused to strike down the
affirmative aspects of the fairness doctrine, making
plain its view that enforcement of the requirement of
11JIn Banzhaf the court, upholding against First Amendment
attack the Commission’s requirement that broadcast licensees car-
rying cigarette advertising also present the case against smoking,
emphasizei that “‘product advertising is at least Jess rigorously
protected [by the Constitution] than other forms of speech.”’ 14
Pike & Fischer R.R. 2d at 2088 (fn. omitted).
balanced programming would not be likely to dis-
courage licensee broadcasts on controversial issues
because ‘“‘the only sanction for noncompliance with the
Fairness Doctrine is the possibility that a license will
not be renewed if the Commission determines that
granting a renewal will not serve the ‘public interest,
convenience, and necessity.’’’? Id. at 1013. Since any
determination not to renew a license could only be made
at a Commission hearing of the type requested by ADL
below, the Seventh Circuit’s reasoning on this point
directly conflicts with the rationale of the decisions
below.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Harry M. PLOTKIN
GerorcE R. Kucik
1100 Federal Bar Building
Washington, D. C. 20006
ARNOLD FORSTER
Sot RABKIN
315 Lexington Avenue
New York, New York 10016
Davin A. Bropy
1640 Rhode Island Avenue, N.W.
Washington, D. C. 20036
Attorneys for Petitioner
Of Counsel:
ARENT, Fox, KINTNER,
PLOTKIN & KAHN
1100 Federal Bar Building
Washington, D. C. 20006
January 1969
APPENDICES
la
APPENDIX I
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1968
No. 20,770
Anti-DeramMation Leaave or B’nat B’RitTH,
Paciric Soutuwest Recionau Orrice, Appellant
v. |
FeperaL Communications Commission, Appellee
Trans American Broapcastine Corporation, [ntervenor
On Appeal from Orders of the
Federal Communications Commission
Before: Witsur K. Muier, Senior Circuit Judge, and
Burcer and Wricut, Circuit Judges.
Judgment
This case came on to be heard on the vecord from the
Federal Communications Commission, and was argued by
counsel.
On ConsIpERATION THEREOF, it is ordered and adjudged
by this court that the orders of the Federal Communications
Commission on appeal in this case are hereby affirmed.
Per Curiam
For the Court:
NaTHAN J. PavULson,
Clerk
Dated: September 30, 1968
Separate concurring opinion by Circuit Judge Wright.
A true Copy,
Test: NatHan J. PavLson
Clerk of the United States Court of Appeals
for the District of Columbia Circuit
UNITED STATES OOURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 20,770
Anti-DeraMaTion LEaGuE oF B’nar B’aita,
Pactric SoutHwest Reciona, Orrics, Appellant
Ve
FepgraL Communications Commission, Appellee
Trans American Broapcastine Corporation, Intervenor
On Appeal from Orders of the
Federal Communications Commission
Decided September 30, 1968
Mr. Harry M. Plotkin, with whom Messrs. George R.
Kucik and David A. Brody were on the brief, for appellant.
Mr. John H. Conlin, Associate General Counsel, Federal
Communications Commission, with whom Messrs. Henry
Geller, General Counsel, Siuart F. Feldstein and Mrs.
Lenore G. Ehria, Counsel, Federal Communications Com-
mission, were on the brief, for appellee.
Mr. Mark E. Fields, with whom Mr. Samuel Miiler was
on the brief, for intervenor.
Before Wusurn K. Muizr, Senior Circuit Judge, and
Burcer and Wricut, Circuit Judges.
Burcer, Circuit Judge: ‘The Federal Communications
Commission granted renewal of the license of Trans Ameri-
can Broadcasting Company for Station KTYM, Inglewood,
California. Appellant, the Anti-Defamation League, op-
posed renewal claiming that certain programs of the Li-
censee had contained anti-Semitic material. After investi-
a
3a
gation of these charges renewal was granted without an
evidentiary hearing on Appellant’s opposition.
The material challenged as anti-Semitic originated in cer-
tain 15 minute paid-time programs under the control of a
commentator, one Richard Cotten. The Commission readily
acknowledges that on several of Cotten’s 15 minute pro-
grams of commentary he made offensive comments con-
cerning persons of the Jewish faith, equating Judaism with
Socialism and Socialism with Communism. Two broad-
casts, one on October 7, 1964, ard one on May 27, 1965, were
singled out and transcripts of those programs were before
the Commission. The League’s complaint is that the Li-
censee did nothing to remedy these programs until the
programs were called to its attention and then declined
either to cancel the program or to control Cotten in any
way. The Licensee then offered the League free equal
time to respond to Cotten’s paid broadcasts or use the time
in any way it desired. ‘The League advised the Commis-
sion that it would not accept the tender of free time.
In granting renewal of the KTYM license without con-
ducting an evidentiary hearing on the content of Cotten’s
programs, the Commission explained that no dispute of
fact as to the ‘content of the Cotten program existed and
no issue as to KTYM’s performance was raised apart from
the Cotten programs. The Commission determined that as
to a specific attack by Cotten on Arnold Forster, General
Counsel of the League, KTYM had violated the ‘<fairness
doctrine’? because the station had failed to give advance
notice of the facts to Forster or the League. However,
the Commission concluded that this was an isolated viola-
tion which neither afforded a basis for denying the license
renewal nor necessitated an evidentiary hearing since the
station had offered free time for a reply. That offer was
still outstanding when the Commission acted.
The Commission considered the broad issue raised by the
League that Cotten’s utterances were so contrary to the
Ab RD
EP aad Ba WP we -
4a
public interest that a Licensee carrying such programs
should be disqualified for renewal. The Commission de-
clared that its historic policy in conformity with Congres-
sional authority precluded censorship of programs.
The Commission has long held that its function is
not to judge the merit, wisdom or accuracy of any
broadcast discussion or commentary but to insure that
all viewpoints are given fair and equal opportunity
for expression and that controverted allegations are
balanced by the presentation of opposing viewpoints.
Any other position would stifle discussion and destroy
broadcasting as a medium of free speech. To require
every licensee to defend his decision to present any
controversial program that has been complained of in
a license renewal hearing would cause most—if not
all—licensees to refuse to broadcast ary program that
was potentially controversial or offensive to any sub-
stantial group. More often that [sic] not this would
operate to deprive the public of the opportunity to
hear unpopular or unorthodox views.
Joint Appendix 69.
The Commission went on to find that ‘‘an overall review
of the stations operation’’ showed that renewal of the li-
cense would be in the public interest. In addition to affirm-
ing the need for KTYM’s tender of free time to Appellants
the Commission reprimanded the station for failure to give
advance notice to the League as to the broadcast which
included a personal attack on League officials.
_Appellant’s primary argument is that ‘‘ recurrent bigoted
appeals to anti-Semitic prejudice” and tolerance of personal
attacks without notice te those attacked, constituted a basis
for denial of license renewal and required an evideutiary
hearing on those issues.
The Commission’s position is that Congress does not per-
mit a broadcaster to censor broadcasts involving attacks on
—_—_—————illt
5a
persons or groups but that the fairness doctrine requires
the Licensee to afford free time for response. The Com-
mission opinion pointed to the long standing policy to en-
courage open discussion of all points of view, valid or
otherwise, and noted that serious First Amendment ques-
tions would be raised by any policy inhibiting ‘‘robust
debate.”’
The Commission relies also on procedural regularity as
a basis for not conducting an evidentiary hearing, con-
tending that all factual issues raised by Appellants were
fully explored and that there was no dispute as to the
facts which would be the subject of such a hearing.
Our examination of the record satisfies us that the Com-
mission acted within its authority in denying an evidentiary
hearing as to the undisputed facts which formed the basis
of Appellant’s claims. The disposition of Appellant’s
claims turned not on determination of facts but inferences
to be drawn from facts already known and the legal con-
clusions to be derived from those facts.
The First Amendment aspect also deserves some com-
ment. The Supreme Court has not defined the scope of
First Amendment application to broadcasting but has inti-
mated in dicta that it applies to licensed media.
We have ‘no doubt that moving pictures, like news-
papers and radio, are included in the press whose free-
dom is guaranteed by the First Amendment.
Lovell v. City of Griffin, 303 U.S. 444, 452, (1938). In
Farmers E. & C. Union v. WDAY, 360 US. 525, 527, 529-
30 (1959), the Supreme Court noted that Congress had
withheld from the Commission any power to censor broad-
casts.
The term ‘‘censorship”, however, as commonly under-
stood connotes any examination of thought or expres-
sion in order to prevent publication of ‘‘objection-
6a
able’? material. * * * Thus, expressly applying this
country’s tradition of free expression to the field of
radio broadcasting, Congress has from the first em-
phatically forbidden the Commission to exercise any
censorship over radio communication.
‘See also American Communications Ass’n v. Doud, 339
U.S. 382, 396 (1950) ; Terminiello v. Chicago, 337 U.S. 1, 4
(1949) ; West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624,
641 (1943).
Commissioner Loevinger, while concurring fully with the
decision of the Commission, restated some basic proposi-
tions which seem to us unanswerable: ;
For the FCC to promulgate rules regarding permis-
sible and impermissible speech relating to religion
would be not only an egregious interference with free
speech in ‘broadcasting, but also an unconstitutional
infraction of the free exercise clause and the estab-
lishment clause of the First Amendment.
It is not only impractical—and impossible in any
ultimate sense—to separate an appeal to prejudice
from an appeal to reason in this field, it is equally
beyond the power or ability of authority to say what
is religious or racial. There are centuries of bloody
strife to prove that man cannot agree on what is or
is not ‘‘religion.’’
é e *
Nevertheless these subjects will and must be dis-
cussed. But they cannot be freely discussed if there
is to be an official ban on the utterance of ‘‘falsehood’’
or an ‘‘appeal to prejudice’’ as officially defined. All
that the government can properly do, consistently with
the right of free speech, is to demand that the oppor-
tunity be kept open for the presentation of all view-
points. Yet this would be impossible under the rule
7a
espoused by the ADL. The present case illustrates
the matter. The assailed commentator here does not
ostensibly attack the Jews as a religious group, but
does attack Zionists and the ADL because the latter is
conducting a campaign against ‘‘right wing extrem-
ists,’? which is said to include that commentator. But
if anyone is permitted to express views favorable to
Zionism or the ADL, or unfavorable to ‘‘right wing
extremists’? or the assailed commentator, then the
Fairness Doctrine requires that someone representing
the contrary viewpoints be given the opportunity to
reply. This, of course, is precisely what the ADL con-
tends cannot be permitted. If what the ADL calls
‘‘appeals to racial or religious prejudice’’ is to be
classed with hard-core obscenity, then it has no right
to be heard on the air, and the only views which are
entitled to be broadcast on matters of. concern to the
ADL are those which the ADL holds or finds accept-
able. This is irreconcilable with either the Fairness
Doctrine or the right of free speech.
Talk of ‘‘responsibility’? of a broadcaster in this
connection is simply a euphemism for self-censorship.
It is an attempt to shift the onus of action against
speech from the Commission to the broadcaster, but it
seeks the same result—suppression of certain views
and arguments. Since the imposition of the duty of
such ‘‘responsibility’? involves Commission compul-
sion to perform the function of selection and exclu-
sion and Commission supervision of the manner in
which that function is performed, the Commission still
retains the ultimate power to determine what is and
what is not permitted on the air. So this formulation
does not advance the argument either constitutionally,
ideologically or practically. Attempts to impose such
schemes of self-censorship have been found as uncon-
stitutional as more direct censorship efforts by gov-
ernment. Smith v. California, 361 US. 147 (1959) ;
8a
Bantam Books v. Sullivan, 372 U.S. 58 (1963); Wash-
ington Post v. Keogh, 125 U.S. App. D.C. 32, 365 F.2d
965 (1966), cert. dented, 385 U.S. 1011 (1967).
Joint Appendix 143-45.
While the Commission has the power and indeed the duty
to consider a pattern of libellous conduct in a license re-
newal hearing, the First Amendment demands that it pro-
ceed cautiously and Congress, as we have noted, limited
the Commission’s powers in this area. We hold that the
record reflects substantial evidence in support of the Com-
mission’s decision.
Affirmed.
Wricnt, Circuit Judge, concurring: Subject to the fol-
lowing observations, I join the court’s opinion in this case.
The Anti-Defamation League charges that Station
KTYM, knowingly and on repeated occasions, allowed to be
broadcast a series of programs containing false and de-
famatory statements about Jews in general, and on one
occasion about some Jewish individuals in particular.’
Two types of program content are thus challenged—libel-
ing an individual and attacking a group—and different ap-
proaches are required for each.
With respect to individual libel, I start with the premise
that a license to run a radio station is not a license to
libel. False defamatory statements, made knowingly or
with reckless disregard of their falsity, cannot claim the
shelter of the First Amendment. New York Times Co. v.
1The Commission concluded that ‘‘the Cotten broadcast of
October 7, 1964, contained a personal attack on the ADL and
its General Counsel, Mr. Forster. The other broadcasts referred
to did not contain personal attacks on ADL or its officials, but did
contain statements that can be regarded as anti-Semitic ® * *.’’
9a
Sullivan, 376 U.S. 254, 279-280 (1964). A radio station,
like a newspaper, cannot claim immunity from libel laws.”
ee encom
2In Gariepy v. Pearson, 92 U.S. App. D.C. 337, 207 F. 2d 15,
cert. denied, 346 U.S. 909 (1958), the court allowed the issue of
libel to go to a jury. There both Drew Pearson and a radio station
were sued for libel for a broadcast by Pearson over the station.
The court noted that the station ‘‘examined the script in advance
and admits it ‘caused’ the words set forth in appellant’s complaint
to be broadcast.’? 92 U.S. App. D.C. at 338, 207 F. 2d at 16. The
same is true in the present case. See also Gearhart v. WSAZ, Inc.,
ED. Ky., 150 F. Supp. 98 (1957), affirmed, 6 Cir., 254 F. 2d 242
(1958) (radio station sued for libel for one of its newscasts) ; cf.
Lesesne v. Willingham, E.D. 8.C., 83 F. Supp. 918 (1949) (Western
Union liable for transmission of telegram where it knew it was
libelous) ; see cases collected in Remmers, Recent Legislative Trends
in Defamation by Radio, 64 Harv. L. Rav. 727 (1951). Even the
National Association of Broadcasters, in promulgating a model
radio defamation statute, allowed suits for libel where the radio
station ‘‘has failed to exercise due care to prevent the publication
or utterance of such statement in such broadcast.’’ Remmers, supra
at 741.
There is one narrowly drawn exception: a radio station is not
responsible for libelous statements made in a political broadcast by
a candidate for public office. Farmers Union v. WDAY, 360 US.
525 (1959). This is so because § 315(a) of the Federal Communi-
cations Act precludes a station from deleting any of the material
from such a speech. The station here, however, is under no such
disability, as the Commission in brief agrees:
‘¢ @ ® © The evidence before the Commission further showed
that KTYM recognized its right to accept or reject program-
ming material * * * and expressly provides in its contracts for
the right to accept or reject programs in each separate case.
@e@)?
‘“KTYM filed pleadings * * ® setting forth new details such
as its manner of screening the Cotten and other broadcasts to
remove matter ‘which is adjudged unduly harsh and unneces-
sary’ eee”
Brief for appellee, pp. 36, 9.
10a
Thus when a station allows a series of programs in which
individuals are repeatedly defamed and the station is put
on notice (for example, by the complaint of an offended
individual) that such programs contain false and unsub-
stantiated statements, in a renewal proceeding involving
that station’s license the Commission should: (1) deter-
mine whether the station knew of the falsity of the material
or allowed it to be broadcast in reckless disregard of its
truth or falsity (the standard of New York Times Co. v.
Sullivan), and (2) consider whether such programming is
in the public interest. Neither the First Amendment nor
a policy of encouraging stimulating and constructive radio
broadcasting would preclude the Commission from refus-
ing to renew a license because of repeated individual libels;
nor would the Commission be prevented from cancelling
the license of a broadcaster who persisted in such a course
of programming.* In the instant case there is no pattern
of repeated individual libels. Therefore I concur in affirm-
ing the Commission.
Attacking a group presents a harder problem. Under
the law of libel, defamation of a broad group or class is
not usually actionable.* And this kind of speech, detest-
able as some of its anti-Semitic and racist aspects may be,
approaches the area of political and social commentary.
To this extent it makes a stronger claim for First Amend-
$This would not be prohibited ‘‘censorship,’’ 47 U.S.C. § 315
(1964), any more than would the Commission’s considering on a
license renewal application whether a broadcaster allowed ‘‘ coarse,
vulgar, suggestive, double-meaning’’ programming; programs con-
taining such material are grounds for denial of a license renewal.
Palmetto Broadcasting Co., 23 Prxe & Fiscuyr R.R. 483, 484
(1962), affirmed, 118 U.S. App. D.C. 144, 834 F. 2d 534,. cert.
denied, 379 U.S. 843 (1964).
* See 33 Am. Jur. Libel and Slander § 192 (1941).
lla
ment protection. I share the desire of the Commission
and the court to foster free and full debate on political
and social. issues. For this reason, broadcasters should
not be so burdened in this area that they would shy away
from presenting controversial issues.
Station KTYM offered the Anti-Defamation League sub-
stantial time to reply to the anti-Semitic broadcasts. This
application of the ‘‘fairness doctrine’’ will have to suffice.
To go further, requiring stations to check the truth of all
commentary attacking a group or class, might result in a
‘chilling effect,’? constraining stations. to steer clear of
controversial material. However, as this case illustrates,
there is a substantial flaw in the theory of the fairness
doctrine. Not surprisingly, the Anti-Defamation League
refused to dignify or exacerbate the attack by replying.
It is likely that other groups would similarly refuse to
reply. Under such circumstances, the Commission may
decide to require a licensee to seek with reasonable dili-
gence exponents of other views when it presents one side
of a controversial issue in which a group or class is at-
tacked.® |
The requirements I would place on breadcasters, and the
Commission, in dealing with material libeling an individual
or attacking a group, are consistent with the Commission’s
overall policy of broadcaster responsibility. For example,
5In Beauharnais v. Illinois, 348 U.S. 250 (1952), a divided Su-
preme Court upheld a conviction under a statute outlawing defama-
tion of a racial or religious group. However, far from spawning
progeny, Beauharnais has been left more and more barren by sub-
sequent First Amendment decisions, to the point where it is now
doubtful that the decision still represents the views of the Court.
6 Nothing I have said would preclude the Commission from find-
ing that a station was not in the public incerest whose regular
programming consisted solely of views slanted toward one side of
a controversial issue or issues, even if the station allowed the other
side time to reply. The Commission could conclude that a station
which offered more rounded programming better served the public.
ELANTY YP ARS, KL
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12a
in the context of protecting the public from rigged quiz
shows, the Commission, in its report on Program Policy,
20 Pixe & Fiscuer R.R. 1901, 1904 (1960), stated :
‘¢# * * [T]he Commission had made its position clear
that, in fulfilling its obligation to operate in the public
interest, a broadcast station is expected to exercise rea-
sonable care and prudence with respect to its broadcast
material in order to assure that no matter is broadcast
which will deceive or mislead the public. * * *’’
And in a major statement on the fairness doctrine, Applica-
bility of the Fairness Doctrine in the Handling of Contro-
versial Issues of Public Importance, 29 Fev. Ree. 10415,
10421 (1964), the Commission stated:
‘ce * * Under fundamental communications policy,
the licensee, with the exception of appearances of polit-
ical candidates subject to the equal opportunities re-
quirement of Section 315, is fully responsible for all
matter which is broadcast over his station. It follows
that when a program contains a personal attack, the
licensee must be fully aware of the contents of the
program, whatever its source or his actual involvement
in the broadcast. * * *’? (Emphasis added.)
Thus it is clear to me that the Commission is not helpless
to act in this area.
13a
APPENDIX III
FCC 66-545
84885
BEFORE THE
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D. 0. 20554
In the Matter of
Complaint of Anti-Defamation
League of B’nai B’rith Against
Station KTYM, Inglewood, California
Memorandum Opinion
By the Commission: Commissioner Cox dissenting and is-
suing a statement.
The Commission is renewing the license of Station
KTYM, Inglewood, California in circumstances which make
some comment and explanation appropriate. Renewal of
this license was opposed by the Pacific Southwest Regional
Office of the Anti-Defamation League of the B’nai B’rith
(ADL) on the ground that broadcasts of ‘“Richard Cotten’s
Conservative Viewpoint’? on October 7, 1964, and May 17
and 18, 1965, over KTYM disseminated anti-Semitic ma-
terial and contained personal attacks on the ADL and its
officers and staff. In addition to the ADL complaint, the
Commission had received the response of KTYM to tlie
complaint, a reply to the response, and numerous state-
ments and exhibits associated with these documents. All
of the documents filed with the Commission in this matter
have been considered in reaching a conclusion, and it ap-
pears that the facts are fully presented by the documents
before the Commission.
The Commission has concluded that the Cotten broadcast
of October 7, 1964, contained a personal attack on the ADL
and its General Counsel, Mr. Forster. The other broad-
casts referred to did not contain personal attacks on ADL
or its officials, but did contain statements that can be re-
garded as anti-Semitic, and that will surely be highly of-
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fensive to many persons of the Jewish faith as well as to
fair-minded people of other faiths. In order to preclude
any possibility that the ruling of the Commission might be
construed by anyone as indicating a contrary view, it is
hereby declared that the individual Commissioners whoily
disapprove of broadcasts which encourage bigotry or prej-
udice against any race, religion, or group. Individual Com-
missioners joining in this opinion have the strongest per-
sonal feelings against the views represented by the assailed
broadcasts, and others similar to them, but believe that the
action of the Commission must. be governed by legal prin-
ciples rather than the personal feelings of the Commis-
sioners.
Following the complaint of the ADL, station KTYM of-
fered the ADL an opportunity to reply to the Cotten broad-
casts. It appears that ADL was offered equal and com-
parable time to that of the broadcasts complained of. ADL
took the position that it shoud not be required to, and
would not, reply to anti-Semitic broadcasts, but that such
broadcasts are so contrary te the public interest that a
licensee which permits them to be made is thereby dis-
qualified to hold a broadcast ‘icense.
This controversy has engendered deep, understandable,
and proper emotions on both sides, and these have resulted
in a mass of documents and discussion. However, the issue
that is now presented is relatively simple: shvouid the
Commission act to suppress the expression of views which
it abhors or to require the opportunity for the expression
of opposing views? From the viewpoint of the broadcaster,
does a licensee fulfill his legal duty when he offers adequate
and comparable time to reply te broadcasts containing al-
legediy acfamatory and faise comment, or has a broadcast
licensee a legal duty to prevent broadcast on his facilities
of comment containing defamation or falsehood?
The issue presented here is not whether the broadcasts in
question were proper, or were false and defamatory, or
were anti-Semitic, or were in the public interest. Altho. »
15a
these issues are of greatest interest to the perties, lend
themselves to the most dramatic and forceful statements
and may attract the most attention, they are not legal is-
sues that are properly before the Commission in this pro-
ceeding. The Commission cannot put such matters in is-
sue without becoming the censor of broadcasting, which it
is forbidden to do. If the Commission were to undertake
to judge in this proceeding that certain broadcasts are false,
defamatory and anti-Semitic, and therefore contrary to the
public interest, it would soon be called upon to make similar
judgments that other broadcasts are false and defamatory
to Negroes, to Socialists, to Catholics, to pacifists, to mili-
tarists, and eventually to the members of every ethnic, re-
ligious and political grouping.
The Commission has long held that its function is not to
judge the merit, wisdom or accuracy of any broadcast dis-
cussion or commentary but to insure that all viewpoints are
given fair and equal opportunity for expression and that
controverted allegations are balanced by the presentation
of opposing viewpoints. Any other position would stifle
discassion and destroy breadcasting as a medium of free
speech. To require every licensee to defend his decision to
present any controversial program that has been com-
plained of in a license renewal hearing would cause most—
if not all—licensees to refuse to broadcast any program that
was potentially controversial or offensive to any substantial
group. More often that [sic] not this would operate to de-
prive the public of the opportunity te hear unpopular or
unorthodox views.
It is the judgment of the Commission, as it has been the
judgment of those who drafted our Constitution and of the
overwhelming majority of our legislators and judges over
the years, that the public interest is best served by per-
mitting the expression of any views that do not involve ‘‘a
clear and present danger of serious substantive evil that
rises far above public inconvenience, annoyance or unrest.’’
Terminiello v. Chicago, 337 U'S 1, 4 (1949); Chaplinsky v.
New Hampshire, 315 US 568; Ashton v. Kentucky, ——
6 ees ta, Gt
16a
US ——, 34 LW 4398 (1966); This most assuredly does
not mean that those who uphold this principle approve of
the opinions that are expressed under its protection. On
the contrary, this principle insures that the most diverse
and opposing opinions will be expressed, many of which
may be even highly offensive to those officials who thus pro-
tect the rights of others to free speech. If there is to be
free speech, it must be free for speech that we abhor and
hate as well as for speech that we find tolerable or con-
genial.
In broadcasting it is required that controverted or con-
troversial matters be subject to fair and adequate oppor-
tunities for reply by those of differing viewpoints. The
details of this doctrine are discussed in other Commission
statements and are not in issue here. In this case it is
plain that the licensee has offered and has affirmed his
intention to continue to offer fair and reasonable oppor-
tunity for the expression of conflicting and opposing view-
points to those of the broadcasts complained of. This is
all that the law requires. We cannot make the right to a
license renewal dependent on our judgment as to whether
the assailed broadcasts were in themselves false and de-
famatory or not. Near v. Minnesota, 283 US 697 (1931).
We do not hold that these broadcasts, or any similar broad-
casts, were in the public interest, but rather that it is in
the public interest to have free speech on all subjects on
licensed broadcast facilities provided only that all view-
points are afforded a fair and equal opportunity for ex-
pression.
Action is being taken by a letter addressed to KTYM, a
copy of which is attached.
FeperaL Communications Commission*®
Ben F. Wariz
Adopted: June 17, 1966 Secretary
Released: June 17, 1966
* See attached statement of Commissioner Cox.
17a
StaTEMENT Or ComMIssIoNER KENNETH A. Cox
Dissentinc To THe Grant Or RENEwaL WirHout HEARING
The majority’s decision to grant a renewal of license to
station KTYM on the record before us, and without hear-
ing, is to me incredible.’ The station has broadcast, without
inquiry into its truthfulness, material which is patently
defamatory and apparently composed of deliberate un-
truths. It proposes to continue this practice in a new li-
cense period. The Commission does not find that such
broadcasts are consistent with operation in the public in-
terest. It does not find such material is protected by the
Constitution. It does not hold that a responsible broad-
caster, faithful to his public trust, could carry such material
without even checking its factual foundations. But it holds,
contrary to every relevant precedent of the courts and the
Commission itself, that it is no proper concern of the Com-
mission whether the broadcasts were or were not consistent
with the public interest. It holds, in short, that it is no
proper concern of the Commission whether the station op-
erates in the public interest or not.
I think it clear that the licensee of station KTYM has
failed to exercise even the beginning of proper licensee re-
sponsibility for the use of his station, and that he has broad-
cast, with reckless disregard of its truth or falsity, viciously
defamatory matter which is not protected against Com-
mission concern by the First Amendment. Because the
questions presented are so important to the administration
1] agree that KTYM’s presentation of the Richard Cotten pro-
gram broadcast October 7, 1964, contained a personal attack on the
ADL and on its General Counsel, Arnold Forster. The Commis-
sion’s letter to the liceusee correctly points out the station’s failure
to send them a transcript of the attack with an offer of time to
respond, as required by the Commission’s Fairness Doctrine. We
have previously made clear that a licensee cannot properly sit back
and wait for complaint waere he has broadcast a personal attack.
I would therefore also censure the station for this failure to dis-
charge its responsibilities as a broadcast licensee.
LAP RC RIE ETE Th Naas stam 6
18a
of the Communications Act, I feel it is necessary that I
set forth my views in some detail. However, to reach the
serious questions which the majority ignores, it is first
necessary to clear away any misconception as to our duty.
In an unbroken line of decisions, this Commission and the
courts of the United States have enunciated the Commis-
sion’s authority and, indeed, its duty to deny a renewal of
license where the station’s program service has not been
in the public interest. Where, as here, the material is
maliciously harmful, and is so lacking in any possible
social value as to be beyond the protection of the Con-
stitution, the Commission’s duty is clear. Such action by
the Commission is not forbidden prior censorship, and is
not in contravention of any constitutional right.
Over a period of almost 35 years the courts have agreed
that program service is an essential part of operation in the
public interest. Thus, under the Radio Act of 1927 with
exactly the same standards as the present Communications
Act, the Federal Radio Commission was sustained in
Trintty Methodist Church, South v. Federal Radio Commis-
ston, 61 App. D.C. 311, 62 F’. 2d 850, cert. den. 284 US. 685,
288 US. 599, decided in 1932, when it denied a renewal of
license because the licensee had, inter alia, ‘‘abused [the li-
cense} to broadcast defamatory and untrue matter.’? The
court was at pains to point out that Near v. Minnesota, 283
US. 697, which prohibited prior censorship by government,
did not operate as a bar to denial of renewal of a license
based on the licensee’s past conduct. See also KFKB
Broadcasting Ass’n. v. Federal Radio Commission, 60 App.
D.C. 79, 47 F. 2d 670.
In 1952, the Commission was again sustained in refusing
to grant an initial license to one who made defamatory at-
tacks. Independent Broadcasting Co. v. Federal Com-
munications Commission, 89 U.S. App. D.C. 396, 193 F. 2d
900, cert. den. 344 U.S. 837. In 1964, the Commission was
sustained in its denial of renewal based upon the broadcast
19a
of deceptive ‘‘treasure hunts.’? KWK Radio, Inc. v. Fed-
eral Communications Commission, 119 U.S. App. D.C. 144,
337 F. 2d 540, cert. den., 380 U.S. 910. The year before it
had been sustained in a denial of a renewal based in large
part upon similar programming excesses. Immaculate
Conception Church v. Federal Communications Commts-
ston, 116 U.S. App. D.C. 73, 320 F. 2d 795, cert. den. 375
U.S. 904. And should the Commission have to be reminded
that as recently as March 25, 1966, the Court of Appeals
directed it to hold a hearing on a renewal involving com-
plaints of improper discriminatory programming (going
beyond the mere failure to put on both sides of controversial
issues)? Office of Communication of the United Church of
Christ v. Federal Communications Commission, —— U.S.
App. D.C. " F, 2d ——, No. 19,409. The majority
does not even mention these cases when it tells us that the
Commission cannot determine whether a station’s program
service has been, or will be, consistent with the public in-
terest. It has simply thrown out the statutory standard
which Congress has commanded us to apply.
The Commission several times states that it is not holding
that these broadcasts were in the public interest. The stat-
ute imposes a duty upon the licensee to operate in the public
interest and a duty upon the Commission to grant a re-
newal of license only if it finds that operation is in the
public interest. See Sections 307(a), (d). What became of
these duties? The reason given by the majority for
sloughing aside its duty—the desire ‘‘. . . to have free
speech on all subjects . . .”’—ignores the vital consideration
that there is no public interest in a pattern of calculated,
reckless falsehoods concerning individuals or groups—in
wantonly ruining lives and reputations. The Supreme
Court in recent cases* has made clear that such speech has
no Constitutional protection and may properly be the sub-
2See particularly Garrison v. Louisiana, 379 U.S. 64, discussed
within.
REPO DIO Er
Fad. seam Lp cts omescittaies.M
20a
ject of damages, actual and punitive, in State courts.
There is thus no basis for the majority’s view that First
Amendment considerations render it, the Federal agency
charged with seeing to it that radio stations operate in the
public interest, helpless to act.
With that out of the way, let me turn to the issues in the
case, first giving the necessary background.
1. Background
This matter came to our attention through a complaint of
October 25, 1965 filed by the Pacific Southwest Regional
Office of the Anti-Defamation League of B’nai B’rith
(ADL), which claimed there was a serious question whether
the license of standard broadcast station KTYM, Ingle-
wood, California, should be renewed. The complaint al-
leged in substance that station KTYM has fallen short of
its responsibility as a licensee by presenting programs in a
recorded series entitled ‘“Richard Cotten’s Conservative
Viewpoint’? which contained intemperate and false attacks
on the Jewish community.
The Commission requested the license’s comments, direct-
ing particular attention to the statement that Mr. A. J.
Williams, President and sole owner of the licensee, had
stated that he had no power to censor any broadcast. The
response of station KTYM, filed on December 3, 1965, as-
serted that any controversial program of a political nature
is bound to displease some people; that the Cotten broad-
casts had been almost unanimously supported in letters re-
ceived by KTYM, which indicated that they served a public
need; that the Anti-Defamation League had been offered
free time to answer the Cotten broadcasts—without accept-
ance by that organization; and that in view of the great
importance of freedom of speech, the licensee would exer-
cise its right to reject programs of the nature involved
here with great restraint, and not at the ‘‘prodding of a
group of paid professionals whose viewpoint and interests
21a
are specific to its [i.e. the ADIL’s} own personal self-in-
terest... .”**
On January 13, 1966, the ADL filed a response, in which
it stated the essence of its complaint to be ‘‘that by per-
mitting its facilities to be used for the dissemination of
several blatantly anti-Semitic broadcasts, the said licensee
had caused serious question to be raised as to the pro-
priety of renewing its license. The complaint charged
that the licensee had allowed one Richard Cotten to make
a calculated appeal to anti-Semitic prejudice by attempt-
ing falsely to equate Communism and Judaism.’’
Finally, the licensee filed a further response on February
7, 1966. ‘This response reiterated that the ADL could have
answered the Cotten broadcasts on free time offered by
the station, and that this is the fair solution where people
have conflicting viewpoints. It stated that the licensee
would not set himself up as a judge of the programs be-
cause he could not accept the Anti-Defamation League’s
credentials against those of Cotten to censor Cotten, and
that “when a commentator on KTYM spends his full time
and talent to prepare a 15-minute broadcast per day (on
25-plus stations) that commentator musi be reasonable and
practical. In two years of broadcasting and of uttering
lies and libel, he would have long since been discredited.”’
The response also urged that Cotten could be stopped in
court if he deliberately lied, and that the licensee cannot
make such judgments, which should be left to public
opinion.
5 Pages 24 through 29 of the KTYM response, which represent
the principal statement of Mr. Williams’ views on his responsibility
for material he broadcasts, are appended hereto as Appendix A,
exclusive of two exhibits therein referred to which show that KTYM
has carried spot announcements for The United Jewish Welfare
Organization, and that the KTYM contract form reserves to the
station the right to cancel any contract for the broadcast of matter
over its facilities. Other statements by Mr. Williams on this cen-
tral issue will be referred to later.
ee eee
22a
I have set forth above the essentials of the dispute, and
will develop certain key facts at greater length in the
discussion which follows. I am also attaching as Appen-
dix B hereto copies of Richard Cotten’s broadcasts on
KTYM of October 7, 1964 and January 6, 7, and 8, 1965.*
2. The licensee’s failure to exercise responsibility as to a
defamatory series of broadcasts based on calculated
falsehood or reckless disregard of the truth
In my view, the essential allegations of the ADL, corrob-
orated as they are by KTYM, make it impossible for the
Commission to find at this time that the public interest
would be served by the grant of a renewal of license to
KTYM. The facts before us, which ought to be the sub-
ject of a full public hearing, demonstrate that the owner
of KTYM has failed to exercise the basic responsibility of
a licensee for material broadcast over his station by pre-
senting, without reasonable investigation, material which
defames a religious group and as to which there is a
serious question whether it is based on calculated falsehood
or reckless disregard of the truth.
Two things must first be made absolutely clear. One
is that we are concerned here with a series of programs
whose general character was known to the licensee. We
are not dealing with an isolated program; with a debate,
where the licensee may not know in advance what the par-
ticipants will say; or with a broadcast by a candidate for
public office, the only class of program as to which Con-
gress withheld from the licensee his normal censorship
powers. The specific programs of which complaint was
made were identified and called directly to the attention
of Mr. Williams. As to at least one of them—the program
of October 7, 1964, which was the basis for ADL’s original
*In addition, ADL complained, at various times, of programs
broadcast on May 7, 1964, June 1, 1965 (first mistakenly identified
as presented on May 17 and 18, 1965), and November 26, 1965,
alleging that all of these contained anti-Semitic matter.
23a
complaint to the station—he says that he had the program
auditioned before it was aired and listened to it on the day
it was broadcast.®
The other is that the broadcasts here at issue (i) are
defamatory, in that they unquestionably attempt to tie
Jews and Judaism to Communism, and thus to attack the
reputations and the place in society of millions of Ameri-
cans, and (ii) on the record before us, are based on cal-
culated falsehood or reckless disregard for the truth. A
consistent theme of the four broadcasts, whose scripts are
appended hereto as Appendix B, is that Jews are pro-
Communist. Thus, they repeatedly utilize quotations by
Jews, whose religion is particularly pointed out by Mr.
Cotten, and who apparently state, ‘‘from the horses mouth
no less’? as the January 6, 1965 broadcast puts it, that
Judaism is the same as Marxism or Socialism, and that
anti-Communism is the same as anti-Semitism. The
quotations are from two publications of the early 1940s,
Jewish Voice and Jewish Life; from Rabbi Stephen Wise,
who died in 1949; and from a book by the poet Israel Zang-
will about the London ghetto, written in the 1890s.° This
material is described by Mr. Cotten in the broadcasts as
extremely significant, and is used to substantiate his ap-
parent thesis that it is an inherent kinship of Judaism
and Communism which explains the attacks by such or-
5 Response filed February 7, 1966, p. 18.
®The October 7, 1964 broadcast also quotes from a letter from
Joseph P. Kamp ‘‘to the United States government’’ written some
time before October 20, 1951 which stated with respect to Arnold
Forster, General Counsel of the ADL, that, ‘‘If you can get Presi-
dent Truman to let you look at the FBI files, you will discover that
Forster’s right name is Fastenburg and that he was a member of
the Communist spy ring.”’
ADL says the Forster spy charge is wholly false, and has sub-
mitted an affidavit by Mr. Forster categorically denying that he
was a member of a Communist spy ring, or that he has ever been
a Communist, a member of the Communist Party cr a Communist
sympathizer.
esr necnarRC one OREN:
pT i Ae ee ee
24a
ganizations as the ADL against groups which Mr. Cotten
believes are dedicated only to the fight against Communism
and Socialism (deemed by him to be the same, e.g., in the
broadcast of January 6, 1965, he said, after again quoting
from Jewish Voice and Jewish Life, ‘You see, my friends,
we know that Communism and socialism are one.’’). The
ADL claims that Mr. Cotten’s attempt to link Communism
with Jews by means of such material is calculated false-
hood because. the quotations are either untrue (e.g., there
is no substantiation for the Rabbi Wise quotation), or
dishonestly used (e.g., the statements of a character in
the Zangwill book are misleadingly imputed to Zangwill
himself, and Jewish Voice and Jewish Life were Communist
publications not shown to be representative of Jewish
opinion).
What is the licensee’s responsibility in these circum-
stances? A broadcast licensee’s responsibility for all
matter carried on his station, other than broadcasts by
political candidates, is clear.?’ But no one would argue that
" Report on Chain Broadcasting (May 2, 1941) p. 66:
“‘The licensee is obliged to reserve to himself the final decision
as to what programs will best serve the public interest. We
conclude that a licensee is not fulfilling his obligations to op-
erate in the public interest, and is not operating in accordance
with the express requirements of the Communications Act, if
he agrees to accept programs on any basis other than his own
reasonable decision that the programs are satisfactory.’’
Regents of New Mexico v. Albuquerque Broadcasting Co., 158 F.
2d 900, 906 (C.A. 10, 1947) :
“*[I]t is the right and non-delegable duty of the [licensee],
acting reasonably, to determine whether a program offered by
[an outside party] is in the public interest... .””
Report and Statement of Policy Re: Com-nission En Banc Pro-
gramming Inquiry, 20 Pike & Fischer, Radio Regulation 1901,
1912-13 (1960), ‘*Broadcasting licensees must assume responsibility
for all material which is broadcast through their facilities. . . .’’
Only with respect to broadcasts by candidates for political office
25a
he must pre-screen or pre-audition all material carried,
nor would I suggest that he must examine the source for
every statement made on his station before permitting it
to be broadcast. This is not feasible, for example, with
respect t> news items coming from reputable news serv-
ices, or in the case of a debate or panel show. There are
a host of situations where the licensee presents spokesmen
whose conflicting views on public issues can and should
properly be left to public scrutiny and resolution, so long
as both sides are heard. To impose a mo. > stringent re-
quirement of a ; rior check on the accuracy of all state-
ments in these situations, which of course do not exhaust
the list, would inhibit the free dissemination and discus-
sion of news and ideas that is the underlying objective of
the First Amendment and the public interest standard of
the Communications Act.
Thus, I fully agree with the majority that to ‘require
every licensee to defend his decision to present any con-
troversial program that has been complained of in a li-
cense renewal hearing would . . . operate to deprive the
public of the opportunity to hear unpopular or unorthodox
views’’. My disagreement is that the majority does not
recognize the distinction between this general principle
did Congress relieve the licensee of this responsibility by stripping
him of the power to censor. Section 315 of the Communications
Act, 47 U.S.C. 315; Farmers Union v. WDAY, 360 U.S. 525 (1959).
Furthermore, Section 3(h) of the Communications Act (47 U.S.C.
3(h)) expressly provides that a broadcast station is not a common
carrier. This freedom from a carrier’s obligation to transmit every-
thing tendered to him necessarily imposes on the broadcaster re-
sponsibility for choosing among the various programs offered to
him. See also Churchill Tabernacle v. Federal Communications
Commission, 81 U.S. App. D.C. 411, 160 F. 2d 244 (1947) ; Simmons
v. Federal Communications Commission, 83 U.S. App. D.C. 262,
169 F. 2d 670 (1948), cert. den. 335 U.S. 846; McIntire v. Wm.
Penn Broadcasting Co., 151 F. 24 597, 600 (C.A. 3, 1945), cert.
den, 327 U.S. 779 (‘‘. . . Congress has confided the selection of
program material to be broadcast to the taste and discrimination
of the broadcasting stations’’).
26a
and what the public interest requires, and the Constitution
permits, in the case of calculated or reckless falsehoods
concerning individuals or groups. Defamatory material,
based on calculated falsehood or reckless disregard of the
truth, stands on an entirely: different footing with respect
to the First Amendment and the public interest. Such
materia! serves no public good, can ruin reputations and
lives, and is therefore peculiarly abhorrent. It has no
projer place in the operations of a public trustee. There-
fore, the public interest does require that where there
is a pattern of broadcasts defaming individuals and groups,
based on use of source material that may be deliberately
false or embody a reckless disregard of the truth—the
licensee must make the judgment that the material is
within reasonable bounds of accuracy and in the public
interest, based upon his own study of the material sought
to be broadcast and of such other material as may be
necessary to make 2 reasoned judgment. If the material
is based upon calculated falsehood or reckless disregard
of the truth, it cannot properly be presented, consistent
with the pubiic interest. Indeed, I cannot conceive how
anyone can argue that a pattern of deliberately false pro-
gramming, designed to defame individuals or religious or
racial groups, can be said to serve the ‘‘public interest in
the larger and more effective use of radio’’ (Section 303(¢)
of the Act).
The Supreme Court has made clear that calculated or
reckless falsehoods concerning individuals or religious or
other groups have no constitutional protection. In Gar-
rison v. Louisiana, 379 U.S. 64, a case involving the alleged
defamation of public officials, an area where the Court has
been most careful to preserve the freejom to criticize gov-
ernment, the Court stated at p. 75:
The use of calculated falsehood, however, would put
a different cast on the constitutional question. Al-
though honest utterance, even if inaccurate, may fur-
ther the fruitful exercise of the right of free speech,
27a
it does not follow that the lie, knowingly and deliber-
ately published about a public official, should enjoy a
like immunity. At the time the First Amendment was
adopted, as today, there were those unscrupulous
enough and skillful enough to use the deliberate or
reckless falsehood as an effective political tool to ua-
seat the public servant or evea topple an adminisira-
tion. Cf. Riesman, Democracy and Defamation: Fair
Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088-
1111 (1942). That speech is used as a tool for political
ends does not automatically bring it under the protec-
tive mantle of the Constitution. For the use of the
known lie as a tool is at once at odds with the premises
of democratic government and with the orderly man-
ner in which economic, social, or political change is to
be effected. Calculated falsehood falls into that class
of utterances which ‘‘are no essential part of any ex-
position of ideas, and are of such slight social value
as a step to truth that any benefit that may be de-
rived from them is clearly outweighed by the social
interest in order and morality. ...’? Chaplimsky v.
New Hampshire, 315 U.S. 568, 572. Hence the know-
ingly false statement and the false statement made
with reckless disregard of the truth, do not enjoy
constitutional prote«*ion.
In addition to this clear statement, it is relevant to note
the the Supreme Court in 1952 sustained the validity of a
state statute making it a crime to distribute a publica-
tion which ‘‘portrays depravity, criminality, unchastity, or
lack of virtue of a class of citizens, of any race, color,
creed or religion’? and which ‘‘exposes the citizens of any
race, eclor, creed or religion to contempt, derision, or
obloquy or which is productive of breach of the peace or
riots...’ Beauharnais v. Illinois, 343 U.S. 250.
Since the material here broadcast by KTYM over a
period of several months was patently defamatory, Mr.
Williams had the duty on his own initiative to inquire into
FETT DIELS LSE. EIR
POSTE PAROLE SIT EA AT'S
28a
the truthfulness of the source material. He could have
asked the commentator for his sources and takeu other
reasonable steps to check the accuracy of asserted bases
for the defamatory statements. Further, even assuming a
situation where there was justification for an initial failure
to inquire, there is, I believe, an absolute duty to make
inquiry with respect to future material of the same nature,
and from the same source, where the licensee is given
notice by other parties that the material may not have
a truthful base.
But the record before us demonstrates that this licensee
did not inyuire ‘inte the validity of the material before it
was broadcast, and has no intention of doing so in the
future. The majority does not hold to the contrary. In
short, the licensee informs the Commission that he ¥ill
continue to follow a pattern of operation whereby defama-
tory broadcasts of this nature may, or will, be presented
and that he will not concern himself with the truth or
falsity of the source material used for the defamatory
purpose—and the Commission responds by finding that
sr.ch a pattern of operation will serve the public interest,
convenience and necessity.
Let me make clear precisely what the Commission is here
authorizing. Suppose that Mr. X approaches a station li-
censee in a small town to seek time for a series of broad-
casts, explaining that he believes Mr. Y is ruining the town
by maintaining brothels and bribing police officers, and he
wants to give the details on the radio. The majority has
told the licensee that it need be of no concern to him
whether Mr. X can corroborate these very serious
charges—that without making the slightest inquiry in this
respect, he may present Mr. X, and simply notify Mr. Y of
his opportunity to respond. Further, since the licensee
®T have set forth in Appendix C what the record shows in this
respect, together with the statements of the licensee on this question
and my comments upon them.
29a
need not make any inquiry, it is presumably irrelevant
under the majority’s view what Mr. X’s response might be
to any inquiry about corroboration. Thus, the licensee
could present the program even though Mr. X responded
that he had no corroboration and urged instead that the
program would be popular, that Mr. X has a right of free
speech, that Mr. X had said similar things before without
being sued, and that the licensee should let Mr. Y answer
instead of censoring Mr. X. Further, even where the li-
censee is told of very subtantial questions concerning the
truth of the charges, he can continue to present such pro-
gramming without making the slightest inquiry. I simply
do not see how anyone can seriously contend that this is
responsible licensee conduct, or that such a pattern of
operation is in the public interest.
Further, the majority decision does not advance the
general public’s right of free speech. Every licensee is in
fact a censor with the power to deny others the use of the
airwaves to express their views; only an unlimited supply
of frequencies or of time could make it possible for every-
one to have his say—in effect making broadcasters com-
mon carriers. The Commission’s decision does not change
this, and it does not expand or preserve anyone’s access
to the airwaves. |
What the Commission’s action dues do is strip the pres-
ent system of any rational foundation by authorizing the
licensee to deny or grant the right to speak in these cir-
cumstances at his whim. If the licensee need not, but may,
examine and judge what defamatory material he carries,
he may say no to a Mr. X one day, and yes to another Mr.
X the next day. This furthers no one’s free speech. More-
over, it seems to me intolerable, for it leaves no standard
to gauge the licensee’s execution of his trusteeship. No
licensee can possibly (or, of course, should) say yes to
every Mr. X without checking Mr. X’s material.
Even KTYM does not quite contend that that is its
policy. Then on what basis does KTYM decide whether
Pr ENN 4
30a
to check first, or to permit Mr. X to go ahead, truthful or
not, and let Mr. Y answer if he can? The only correct ap-
proach is for the licensee to check such material in every
situation before he uses it, or else not permit it to be broad-
cast. The alternatives are either mindless, arbitrary de-
cisions as to who shall speak and what the public shall
hear, or else dishonest ones dependent upon the licensee’s
personal views.
Finally, I shall comment briefly with the licensee’s de-
fenses.®° The licensee’s main standard of decision is that
his responsibility ends with affording time to one who dis-
agrees with matter he has presented. In effect, the li-
® Since Section 315 of the Act is inapplicable because no appear-
ance of a candidate for public office was involved, the alleged
political aura of the broadcasts did not relieve the licensee of his
responsibility. Nor did the receipt of letters indicating that many
listeners liked the programs excuse his failure to make a judg-
ment—there is probably a substantial audience for obscene pro-
gramming. The suggestion that Mr. Cotten must be accurate and
responsible because he had not been ‘‘stopped”’ in court is, in the
circumstances, clearly insubstantial in the context of the concept
of licensee responsibility. Neither is it reasonabl» to assume, as
Mr. Williams does (Response of December 3, 1965, p. 5; Response
filed February 7, 1966, p. 54), that one who is slandered or libeled
always sues. In fact, this remedy affords very little protection in
many situations—a fact known to all too many polemicists. In
any event, the licensee’s special statutory responsibility to operate
in the public interest in the broadcast field is not met by reference
to private law remedies. Nor could the station disclaim responsi-
bility by suggesting that Cotten has a constitutional right to use
KTYM, no matter what he says. No right of Cotten’s is abridged
by the exercise of an informed judgment by the station not to afford
him time. As the Court said in McIntire v. Wm. Penn Broadcast-
ing Co., 151 F. 2d at 600-601, ‘‘True, if a man is to speak or
preach he must have some place from which to do it. This does
not mean, however, that he may seize a particular radio station
for his forum.’’ No one has a right to time for the presentation
of his views over a broadcast station unless (i) he is a candidate
for public office whose opponent has been permitted to use the
station, or (ii) he has been personally attacked over the station.
3la
censee is claiming the right to stand aside—to present a
series of programs which, for all he knows, irresponsibly
purport to link a religious group to Communism and an
individual to a Communist spy ring, and to do so without
bringing to bear his own judgment, on the ground that if
complain* is made, he will afford time to answer. I do
not believe a licensee can force upon an individual or a
group the o’ ligation to respond to an attack which, if he
had discharged his responsibilities, would never have been
broadcast. This position misconceives the Congressional
scheme and ignores the public interest. In light of the
principles set forth above, and the nature of the material,
what was required here was the licensee’s own judgment
that the series of broadcasts were not based on inaccurate
or misleading source material and that they constituted
programming ‘‘in the public interest.’’ (Regents of New
Mexico v. Albuquerque Broadcasting Co., supra.) To de-
termine this may be a burden, but if so, it is the burden
accepted by a broadcast licensee wien he accepts his public
trust.
A licensee may not accept the great power of choice his
license confers upon him and simultaneously deny it any
meaning. Every licensee, Mr. Williams included, accepts
some material and rejects other. When a program is
carried, a choice has been made just as surely as if the
program had been rejected. When the material is of the
sort we are dealing with here, the requirement that the
choice be the licensee’s, and that it rest upon his own in-
formed judgment, is the necessary heart of a licensing
system under which a Federal agency places in a perilously
few hands the tremendous power to determine who shall
speak on radio and television and who shall not.
3. The use of KTYM to broadcast malicious defamation
The licensee therefore had a duty in these circumstances
to make a reasonable effort to determine the truth or falsity
of the source material and whether presentation of the pro-
ENE B00 So RP BOSE
OLA LID PL LOE LIE, LE IOSD
a Teel
POE IE POOLE LO GLO LL AGE
LM AIEEE LIE COLI EI EF A
OK ND Ce EY
32a
grams was in the public interest. If, upon the exercise of
his responsibility, he found that the programs were based
on the use of calculated or reckless falsehoods, they could
not be presented, consistent with his statutory duty to
operate in the public interest. It is, I think, axiomatic
that a pattern of broadcasts of calculated or reckless false-
hoods concerning individuals or groups is not in the public
interest.
Since the licensee here did not exercise his responsibility,
and has indicated that he would not do so in the future,
the threshold and critical issue in this case is the failure
of the licensee of KTYM to exercise proper responsibility
for the use of his station. Accordingly, it is not necessary
to reach the question whether, had he examined into the
truthfulness of the defamatory material being broadcast
and determined that it should be presented, the resulting
pattern of operation would be censistent with the public
interest. The majority, however, has ignored the question
of licensee responsibility and has simply found that the
broadcasts in question can be presented to promote “. ..
free speech on all subjects ...’? This holding cannot be
made on the record before us or in light of pertinent public
interest and Constitutional considerations.
While the matter can only be resolved by hearing, the
record before us, at the very least, raises substantial ques-
tions whether these broadcasts do not defame an individual
and a religious group through the use of deliberate lies or
reckless disregard of the truth or falsity of the statements
made. Granted that the licensee has great leeway to make
reasonable judgments in this area, we cannot say, on the
material before us, that a pritern of broadcasts of this
nature could reasonably be presented in the public interest.
I believe it important to go over some pertinent facts as
to the present record, for that record squarely presents
the question of whether the licensee of KTYM proposes to
continue a pattern of broadcasts of falsehoods which are
33a
either deliberate or reckless against individuals or religious
groups. Thus, he has now received from Mr. Coiten ir
January of this year a letter concerning the Rabbi Wisé
quotation, in which Cotten, while giving other reasons for
his belief that Rabbi Wise was a Socialist, fails to give any
purported source for the statement attributed to Rabbi
Wise in the broadcasts. This statement therefore appears
to have been made up out of the whole cloth.
Mr. Cotten also deceived his audiences in his use of the
Zangwill book, by palming off the statements of a character
in the book as the direct statements of Zangwill himself.
This was done on the January 6, 1965 broadcast in two
ways. It was done first by a deceptive reading of the quo-
tations from “Children of the Ghetto.’’ Cotten first de-
scribed Zangwill as a poet and then read what ‘‘the poet’’
had said, giving the impression of direct exposition ot
views by Zangwill. The truth is that ‘‘the poet’? who made
the statements was a fictional character called ‘‘the poct’’
in the novel, and, indeed, a character who, I am told, is
treated contemptuously by Zangwill. However, since the
broadcast mentioned no poet other than Zangwill, no KTYM
listener was likely to realize this. The same erroneous
impression was given later in the same broadcast, when
Cotten told his audience to remember ‘‘the thinking indi-
cated by Israel Zangwill, Socia*ism is Judaism and Judaism
is Socialism, and a bit further, ‘My brothers, how can we
keep Judaism in a land where there is no Sociaiism?’ ”’
This immediately follows his statement that ‘‘Communism
and socialism are one.” The next day, Cotten s:milarly mis-
used the same material, stating: ‘“We quoted the famous
jewish poet, Israel Zangwill who seemingly revealed that
he deemed it imposs.ble to ‘keep Judaism’ in a land where
there was no ‘socialism’ !! Now personally I believe this
is pretty near the ‘root of the matter.’ ’’
The use of the quotations from Jewish Voice ane Jewish
Life, whose significance to his theme Cotten strongly em-
phasized, also clearly raises a question of good faith. The
34a
ADL claims that these publications, probably long since
defunct, were Communist publications whose views were not
representative of Jews generally. That this is so is appar-
ently recognized even by Mr. Williams himself. In a letter
of January 18, 1965 to Mr. Cotten, after the broadcasts in
question, he indicated that he had mentioned the ADL com-
plaint to Cotten three days earlier, and again mentioned to
Cotten the ADL complaint and ‘‘the statement that a quo-
tation from the Jewish World’ (a Communist publication
which they abhor), taken by itself on a later broadcast,
might lead the average listener into thinking it is repre-
sentative of Jews in general.’”? (Exh. 6, KTYM reply of
December 3, 1965). ‘There is no evidence of any reply, or
that Mr. Williams pursued the matter further.
In the circumstances, it is unreasonable to find that no
substantial issue is raised as to whether a pattern of op-
eration of this nature is consistent with the public interest.
The deliberate attempt has been made to defame an entire
religious group through the use of material which is either
patently unrepresentative, deliberately distorted, or, on the
record before us, simply nonexistent. I have always be-
lieved in the fullest expression of ideas, controversial or
otherwise, on and off the airwaves, and have never ap-
proved of Commission action on the basis that I found
views disagreeable or that they were offensive to some
listeners. What I am concerned about here is the system-
atic use of calculated lies broadcast to large audiences to
defame an entire religious group.
No decision by any court that I know of holds that the
Commission is to find such use of radio in the public inter-
est, or beyond our reach on Constitutional grounds. No
10 Mr. Williams did not even give the names of the publications
correctly. However, Mr. Cotten presumably knew to what he was
referring.
35a
reasonably relevant holding commands our inaction." I
-
" The Editorializing Report, 13 F.C.C. 1246, relied upon by the
majority, does not equate deliberate defainatory falsehood with
controversial discussion. In fact, Paragraph 17 reads as follows:
It must be recognized, however, that the licensee’s oppor-
tunity to express his own views as part of a general presenta-
tion of varying opinions on particular controversial issues,
does not justify or empower any licensee to exercise his author-
ity over the selection of program material to distort or sup-
press the basic factual information upon which any truly fair
and free discussion of public issues must necessarily depend.
The basis for any fair consideration of public issues, and par-
ticularly those of a controversial nature, is the presentation
of news and information concerning the basic facts of the con-
troversy in as complete and impartial a manner as possible. A
licensee wouid be abusing his position as public trustee of
these important means of mass communication were he to with-
hold from expression over his facilities relevant news or facts
concerning a controversy or to slant or distort the presentation
of such news. No discussion of the issues involved in any
controversy can be fair or in the public interest where such
discussion must take place in a climate of false or misleading
information concerning the basic facts of the controversy.
In Pacifica Foundation, 36 F.C.C. 147, also relied upon, there was
no issue of deliberate or reckless disregard of the truth. Further-
more, that decision is contrary to the majority’s position in this
case, since in Pacifica the Commission emphasized the requirement
of licensee responsibility for the program content there in question.
Other relevant Supreme Court decisions are similarly consistent
with the views I have expressed. Terminiello v. Chicago, 337 U.S.
1, decided before Beauharnais, holds only that a city may not
broadly make speech a crime merely because it ‘‘stirs the public
to anger, invites dispute, brings about a condition of unrest, or
creates a disturbanee.”’ And New York Times Co. v. Sullivan, 376
U.S. 254, does not immunize even criticism of public officials
where a defamatory falsehood is made with knowledge of its falsity
or reckless disregard of whether it is true or false. There is at
the very least, a substantial question here, needing resolution in a
hearing, of whether the licensee of KTYM has not bronght him-
self directly within this standard. See also, Trinity, Methodist
Church, South v. Federal Radio Commission, 61 App. D.C. 311,
62 F. 2d 850, cert. den. 284 U.S. 685, 288 U.S. 599; Independent,
Broadcasting Co. v. Federal Communications Commission, 89 U.S.
App. D.C. 396, 193 F. 2d 900, cert. den. 344 U.S. 837. ;
P48 RT IGE Phan ae ete
a. tn ee al
36a
see no social vaiue in deliberate defamation of a religious
group, and the Supreme Court has already told us in Gar-
rison v. Louisiana, supra, that the Constitution does not
protect it. But the Commission majority finds it consistent
with the public interest.
I wish to make it clear that we are not concerned here
with isolated good-faith mistakes in judgment, for which
I would not urge denial of renewal, but with a persistent
refusal to discharge the basic responsibility of a licensee
and the knowing continuation of programming based on
falsehood. Nor are we concerned with the entirely dif-
ferent situation of a licensee who presents the views of
the far left or far right as part of a documentary or simi-
lar program dealing with the role of organizations and
individuals espousing such views. Clearly such a program
would not be in the same category as the series of broad-
casts by Mr. Cotten here in question. Finally, I am not
saying that none of Mr. Cotten’s programs should be car-
ried by broadcast stations. I have confined myself to
particular elements in the specific broadcasts about which
complaint has been made. The ADL specifically states
that it raises no question as to Mr. Cotten’s broadcast
views on a variety of other issues. My opinion is limited
to the facts of this case, and it would be unwise to specu-
late as to what might be sound policy in other situations.
I have limited my holding to the facts of this case, and
so presumably has the majority. But even ag so limited,
let no one be deceived as to the importance of the action
taken by the majority. It is, in the circumstances, a major
step away from the concept of licensee responsibility so
centrel to the scheme of the Act. In light of the history
of the world in our century, these programs stand as a
bald attack upon the lives, the fortunes and the sacred
honor of millions of our fellow countrymen. The Com-
munications Act does not permit a grant without hearing
when substantial public interest questions are raised. I
dissent from the grant of a renewal of license to Station
KTYM and vote to set the renewal application for hearing.
37a
APPENDIX A TO DISSENTING STATEMENT OF
COMMISSIONER COX
Tue ANSWER To THE CoMMISSION’s Question ABout
KTYM’s Power To Censor
KTYM is gratified that it has the opportunity to express
its feelings in this regard. KTYM in its approach to
censorship recognizes and interprets five separate guide-
lines.
(1) The First Amendment to the Constitution: ‘‘Congress
shall make no law respecting an establishment of
religion, or prohibit the free exercise thereof, or abridg-
ing the freedom of speech, or of the press; or the right
of the people peaceably to assemble.’’
KTYM recognizes this law as one of the keystones of
our way of life, and reads into the first amendment, into
especially that portion—‘, . . Congress shall make no
law .... abridging the freedom of speech. . . .”? the in-
terpretation that any creature of Congress, which makes
laws, cannot make any law which will abridge freedom
of speech. On a personal level, KTYM therefore treats
the right, which KTYM has as an individual, much in
the light of the supreme law of the land. KTYM as a
licensee recognizes that it has a right to accept or reject
programs, but KTYM exercises that right with great re-
straint, and certainly does not intend to bow to the prod-
ding of a group of paid professionals whose viewpoint and
interests are specific to its own personal self-interest,
regardless how magnanimously it announces its objectives.
(2) The Statement of Commissioner Lovinger, of the Fed-
eral Communications Commission, who said in essence :
‘‘Freedom of speech docs not mean letting a man voice
only that with which we agree, but means letting him
voice that which is entirely loathesome to us se
PS EO ROLL
38a
Taking its enue from one of the heads of the Federal Com-
munications Commission, KTYM again chooses to exer-
cise its right to censorship with great restraint, and again,
certainly does not intend to bow to the prodding of a
group of paid »rofessionals whose viewpoint and interests
are specific to its own personal self-interest, regardless
of how magnanimously it announces its objectives.
(3) Section 315 of the Communications Act of 1934, Title
47, Ch. 5, U.S.C.A.: Which law states in part:
‘*such licensee shall have not [sic] power of censorship
over material broadcast under the provision of this
section.’’
This part of the Communications Act applies to programs
broadcasting on behalf of qualified candidates for public
office.
In cooperation with the intent of the law, KTYM will
consider (and especially around election time) certain
broadcasts to be ones ‘‘.. . on behalf of a qualified candi-
date ...’’ even when the name of the candidate is not
spelled out. There is obvious reason why the names of
the candidates are not spelled out when certain tax-free
foundations ‘‘support’’ a candidate. If the foundation
were to openly endorse a particular candidate, the founda-
tion would stand a chance to lose its tax-free status. KTYM
is not in the business of writing or interpreting Internal
Revenue Service precedent, but the management of KTYM
is not so naive as to recognize the presence of political
views or pressure when couched in the name of high-
sounding zealots.
KTYM has broadcast the voices of Mr. Eisenhower, Mr.
Kennedy, Mr. Johnson. Though KTYM obviously cannot
side with two divergent views at the same time, KTYM
39a
would silence neither. In good conscience, then KTYM
always thinks a long time before it censors an uncomforta-
ble view, and again, certainly does not intend to bew to
the prodding of a group of paid professionals whose view-
point and interests are, on occasions, unmistakably political,
though they are paraded under a neutral pious cloak,
(4) The pversonal feelings of the licensee with regard to
censorship.
The licensee was brought up in a home where Czechoslo-
vak was spoken, and has complete command of that lan-
guage. ‘Two years ago the licensee, while visiting com-
munist Czechoslovakia, was capabie of being assimilated
into the country as few other Americans have had the
opportunity. The communist way of life, at best, is quite
unpalatable. The lack of amenities are annoying, but
tolerable. But towering above all the other irritation
was the restriction placed on free speech. This was the
one facet of communist existence which was entirely and
utterly intolerable—to the natives and especially to the
licensee,
The privilege to speak freely is one of the sweetest gifts
of freedom. Though the privilege to speak freely has
built into it the possibility of much abuse, and may most
certainly breed inequities—on balance the benefits far out-
weigh the abuses and inequities,
The licensee would not enjoy living in a world proposed
by certain elements of our society, if he were not per-
mitted to voice an objection. Without doubt, the opposing
viewpoints must feel the same way. For this reason
KTYM treads very gingerly whenever censorship is con-
sidered, and to repeat, does not intend to respond to the
prodding of a group of paid professionals whose Viewpoint,
apparently is to silence the opposition, without making
40a
an attempt to reply to or to take a stand in the Courts
against ‘‘. .. defamatory and untrue attack on the Anti-
Defamation League and some of its principal officers and
OG s+ ss si
(5) The Fairness Doctrine:
Without being precisely iegal about it, there is one facet
of the Communications law which requires a licensee to
offer opportunity for an ‘‘injured’’ party to reply. As-
suming that the ‘‘injured’’ party chooses to reply, the
eensee has theoretical discretion to reject the broadcast.
But in its naked essence, the fairness doctrine requires
that an opposing view must be aired in some way—whether
the licensee likes it or not. This, then is forced censorship
in reverse. To this the licensee does not object, inasmuch
as he believes that both sides of a controversy should
and must be heard: ‘‘. ... regardless how loathesome
the opposing viewpoint. ....
But to determine what is in fact ‘‘an attack’’, the li-
censee is at a loss. KTYM considers it patently unfair
to ask any man who is not a member of a particular or-
ganization which may be dedicated to fostering its own
particular brand of prejudices as against the prejudices
of other people and organizations to develop the same
sensitivity to ‘‘criticism’’ of the precepts of the offended
organization, as would the members of that offended
organization.
Protestants do not respond to the same remarks as
Catholics. Democrats do not object to Mr. Goldwater
being branded ‘‘trigger-happy’’. Republicans do not ob-
ject to Mr. Johnson being called an ‘‘arm-twister’’. Each
individual and each organization has its own sensitivities,
and these are tied up with the basic fears, insecurities, and
bias of the individuals making up the group. Where in
the United States an individual might shrug off the criti-
sate
4la
cism of his neighbors, the individual under different con-
ditions in a foreign country may be worried, apprehensive,
or even frightened by the same criticism when he is in
the minority. Where in the United States he may be
mildly irritated, under other circumstances he might be
violently afraid, Thus, being ‘‘attacked”’ is a subjective
thing. Consensus on what constitutes attack is a myth.
There ore as many shades of opinion as there are people.
Seek to make your viewpoint or sensitivity preeminent
over your fellows; and you are in danger of his doing
the same thing. Feel that your opinion is more holy; and
our opponent may succeed in forcing his brand of holiness
upon you.
In view of the foregoing, the writer, as licensee of KTYM
feels an august and awesome duty to be discharged, when-
ever he has to solemnly say to an individual: **You can-
not go on the air’’. See bottom of KTYM contract, E.r-
hibit No, 19. See also Affidavit for United Jewish Welfare
broadeasts on KTYM. Exhibit No. 20.
ALBERT JOHN WruiaMs
for
Trans-America Broadcast
Corp.
KTYM-AM—Inglewood,
Calif,
MONS OER GOL OLD LS RT EY OEE IE CED LE NET oP EAR Ey
42a
APPENDIX B TO DISSENTING STATEMENT OF
COMMISSIONER COX
Transcript of Richard Cotten Broadcast
KTYM—October 7, 1964
(Music—America the Beautiful)
This is Richard Cotten, spokesman for the Committee of
Christian Laymen of Kern County, California and wholly
dedicated to exposing Socialism, CommUNism, one-world-
ism and any other form of totalitarianism that is under-
mining our way of life. We are for individual responsi-
bility, for a return to constitutional government, for less
centralization of power, for states’ rights and we are for
exposing the Federal Reserve. We are for the sovereignty
of the United States of America and are unalterably op-
posed to any plan to surrender our God-given Republic to
any form of totalitarian rule. Now, won’t you juin us and
take one more lock at the ever-increasing evidence that we
are indeed being surrendered to a one-world government.
(Music ends)
Our previous program dealt in detail with the newly or-
ganized Council for Civil Responsibility and their intent
to do great harm to the ultra Conservative. Today, I will
mention another group. It will be B’nai B’rith’s Anti-
Defamation League. I will be treading on forbidden terri-
tory. By some unwritten rule, it is not considered the
thing to do to criticize this organization or indeed to criti-
cize anything having to do with the Jew. May I make my-
self clear? Even as the National Council of Churches does
not speak for all Christians, so also, the Anti-Defamation
League does not speak for all Jews. I’m about to draw
upon an extensive article in the Fresno Bee, Saturday,
September 19, wherein the Anti-Defamation League is or-
ganizing a campaign to expose the same groups that we
outlined yesterday in our program relative to the so-called
Council for Civil Responsibility. Surely, one should have
43a
a right to defend oneself. The close of the article, in speak-
ing of the Anti-Defamation League, states as follows:
‘‘The Anti-Defamation League, founded in 1913, is a
Jewish organization formed specifically to combat anti-
Semitism and to quote ‘secure justice and fair treat-
ment for all citizens.’ ” unquote.
I am well aware this sounds reasonable, but may I add
two quotes. The New York publication, Jewish Voice, J uly
and August of 1941, page 23, states as follows: ‘Anti-
Communism is anti-Semitism.’’? Another quote, this from
the publication Jewish Life, also New York, ‘“‘Seratch a
professional anti-Communist and you will find an anti-
Semite.”” Now, I have probably uever brought you any
single message more important than the preceding. ‘‘ Anti-
Communism is anti-Semitism,” and ‘Scratch a profes-
sional anti-Communist and you will find an anti-Semite.”’
Where do we go from here? Do we bow our necks because
of the smear or do we do the best we can to expose those
who would subvert our Constitution, our way of life and
trust the facts can stand on their own two feet? I know
not what course you choose to follow, but for me, I choose
the latter. If Dan Smoot, and the Church League of
America and the Conservative Society of America and
similar groups are-to be considered Radical Right by the
ADI, then surely the voice of the right should be free to
speak for itself.
Let’s get back to my newspaper article. We learn that
the ADL considers the Radical Right a growing threat to
democracy and the nation. Good. We don’t live in a
democracy, and finally, some of us are finding it out. Next,
Dore Schary, I guess it is, producer and playwright, who
is the League’s National Chairman, said the ‘Radical
Right is a magnet for bigots, rejects the traditional toler-
ance of our two-party system and tends to see history as
a conspiracy of evil and faithless men,’’ and I say, ‘So be
it.’ Yes, there is a conspiracy and it is as old as time, and
44a
it is openly and avowedly anti-Christian. As for the two-
party system, the conservative is fighting for nothing more
than a return to constitutional government, a government
of law. As for the magnet for bigots, what is his definition
of a bigot? Is it a person with racial pride and integrity?
And it is not by chance that the word bigot rhymes with
maggot, and it is intended to leave an unpleasant conno-
tation.
The article then advises that a document that has been
in preparation for four years and should not be considered
an attack on the Republican Party or its presidential candi-
date is about to be published. The report, entitled ‘‘Dan-
ger on the Right,’’ was written by a man who Mr. Schary
called Arnold Forster, who happens to be the ADL’s legal
counsel,
_ Now, in the Congressional Record, on the date « * October
20th, of °51, in an article relating to how ‘Communist
spies misuse committees of Congress,’’ Representative
Clare Hoffman of Michigan in the House of Representa-
tives denounced a plot to suppress campaign against Com-
munism. He read sworn charges and promised to fight
un-American treatment of Joseph P. Kamp in the inter-
est of justice and fair play. And he told how the Red
smear influenced the jury. A part of the sworn testimony
to which this refers was a letter from Mr. Kamp to the
United States government wherein he outlined specific
charges. I will read three paragraphs verbatim.
‘Three months ago the Anti-Defamation League of
B’nai B’rith issued its annual report in the form of a
smear book which made violent and vicious false at-
tack against the leading movements fighting Commu-
nism in the United States. The book, ‘A Measure of
Freedom,’ was plugged day after day by Walter
Winchell.
“The author of the book and the chief director of
ADL is a man who calls himself Arnold Forster. If you
45a
can get President Truman to let you look at the FBI
files, you will discover that Forster’s right name is
Fastenburg and that he was a member of the Commu-
nist spy ring.’’
Now that seems to me to be highly relevant. If the alle-
gation is correet, one should be so advised as he pursues
the ADL’s new volume. The book that Mr. Kamp alludes
to is quite a book. It is interesting to find the organiza-
tions that they consider as anti-Semitic. It includes Upton
Close and Merwin K. Hart of the National Economic Coun-
cil. It includes an endless listing of organizations which
include in their titles the word ‘‘Christian.”? As you know, .
we include both the publications, ‘‘Closer Up,’’ which is
the outgrowth of Upton Close’s work, and the National
Economie Council Newsletter on our list of vital publica-
tions.
Merwin K. Hart passed away just a few months ago, uni-
versally loved and respected in knowledgeable conservative
circles. It is disturbing to find patriots labelled in this
fashion. If your library has the volume, A Measure of
Freedom, I would commend it to your persua} (sic). It
will serve as an excellent background for the pending
‘‘Danger on the Right’? written by the same author.
So now comes the problem. I want you to learn a great
deal in this area, and radio has its limitations. However,
politics are in the air and I believe I have a solution. First
of all, you should know more about Joseph P. Kamp and
his trials and tribulations. He went to jail for you. Yes,
he did. Pressured by infiltrated congressional committees,
he refused to reveal the names of his supporters. He was
jailed for contempt, and the ADL took the credit.
All right. That’s history, but if he was wrong, you
should know it, and if he was a hero, he’s entitled to recog-
nition, and T think we’ll let you be the judge.
Recently the organization that published Mr. Kamp’s
booklets came out with one that is very revealing. It is
46a
entitled ‘‘Why Goldwater Must Be Destroyed’’ and it will
make ‘‘Choice Not An Echo’’ look like a middle-of-the-
roader. The pamphlet gets to the root of the problem.
You are going to be besieged with ‘‘ Danger on the Right.’’
Possibly this will give you some helpful answers. It is
said, ‘‘A word to the wise is sufficient.’? I assure you this
is powerful ammunition, and if you get this booklet, it will
include a little list of other booklets available. One of
these, ‘‘The Bigots Behind The Swastika Spree,’’ is abso-
lutely a classic.
Now, the ADL or Anti-Defamation League does not like
Joseph Kamp, and, in fac., they call him a jail bird, but
you be the judge. Send for this booklet; we will get it for
you to see.
Now, what I’ve just done is this: I will be labelled an
anti-Semite for having mentioned the ADL and especially
for having something good to say about Joseph P. Kamp
and his material. So be it. The bugaboo of not being able
to comment upon smears by Jewish organizations simply is
getting old fashioned. And when the ADL openly attacks
the conservative movement, it is high time you were given
enough information as to make an intelligent decision. I
might mention another excellent pamphlet distributed by
the same organization. ‘‘Catholics, Communism and The
Commonweal’’ has a wealth of information.
For those who would like to criticize things Catholic,
this will show Communistic control over one of their publi-
cations. And adversely, it will show the Christian devo-
tion and loyal patriotism of the author, an Irish Catholic
named Brophy.
Anyhow, let’s show a little courage. Joseph Kamp’s
writings fill a needed niche, and he knows a lot about those
who must destroy Goldwater. No matter what other books
you have read on the political picture, until you read this
pamphlet, you have not a rounded picture, in fact have
been kept in almost total ignorance. I would also com-
mend to your reading the entire eight page article from the
47a
Congressional Record. I am not in a position to repro-
duce it at this moment, but copies of our broadcast will
give sufficient information for identification.
Now, let’s go back over this slowly. ‘‘Anti-Communism
is anti-Semitism.’’ So spoke the Jewish publication,
Jewish Voice, and ‘“Seratch a professional anti-Commu-
nist and you will find an anti-Semite.’’ Thus spoke the
Jewish Life, also a New York Jewish publication.
My friends, what does this tell you? It is very simple.
Simply that the smear word “fanti-Semite’’ is the means
of destroying any right wing movement. It has always
been thus and always will be. Peing fully informed is your
only protection. Some time ago, I did a program entitled
“Anti-Semitism” and if you send for this broadcast, we
will include that documentation. In it I endeavor to make
it clear that it is not I who interject the Jewish issue but
an organization, in this instance, the ADL attacks the
Conservative movement and I am suppcsed to be immobil-
ized by fear. I simply won’t have it.
It was the eminent authority, Rabbi Stephen Wise,
founder of the political, political powerful—excuse me—
of the powerful political American Jewish Congress in 1935,
who said “Some call it Marxism but I call it Judaism.”
Now, it’s a free country. Or, at least, it has been. But if I
am going to fight Marxism and some deem that to be an
attack upon Judaism, then it is obvious that I will end up
smeared with anti-Semitism. Were there time, I could
give you some pretty remarkable for instanees, but I
simply do not have time right now.
If you will please stay with us, I will be back after one
minute with our announcer.
(Announcer—not identified )
You are listening to a miracle, the miracle of the Ameri-
can way of life. The very fact that Richard B. Cotten is
heard on this station is an evidence that there still is some
freedom left in the United States. How long this freedom
will remain is in real question now. If the current trend
48a
continues, Richard B. Cotten and all those who would bring
you little known facts regarding the conspiracy and action
within our shores will be silenced. You will hear only
those things your leaders, Quote—Unquote, want you to
hear. The encouraging thing is that you still can control
this situation. But the time is late and frankly, Mr. Cotten
needs to hear from you in a financial way right now. We
do not apologize for this request because your sacrificial
gifts are the only means we have of staying on this sta-
tion. We need a number of very generous investors. But
if you can only give very iittle, please do what you can.
The smallest gift, when multiplied by the thousands of
listeners to this broadcast, can accomplish great things.
The important thing is not to wait. Do it right now. Next
week, next month, next year may be too late. Address
that investment to: Richard B. Cotten or Conservative
Viewpoint, Post Office Box 1976, Bakersfield, California.
(Richard Cotten) Now, if you will send for the booklet,
‘Goldwater Must Be Destroyed,’’ which will expose who’s
promoting and what’s behind the conspiracy to get Gold-
water and to discredit the conservatives, you will have a
lot of light shed in many dark places. Sixty-two pages of
pure dynamite and I believe that you’ll agree that treason
is the reason.
This is our broacast +220 or part two of ‘‘The Smear”?
and we will include our broadcast ‘Anti-Semitism.”’
Make no mistake about it. In this land of the free, each
man is entitled to his religious convictions, but let’s curb
the tendency to defame another man’s character. Let the
record speak for itself. It is certainly interesting.
Program 220, Post Office Box 1976, Bakersfield, Cali-
fornia. We need your contributions to continue to pur-
chase radio time. Will you make this part of your tithes
and offerings.
Until tomorrow, this is Richard Cotten reminding you as
always—freedom is not free, free men are not equal and
equal men are not free. God bless you.
49a
Ricuarp Corren’s
CONSERVATIVE VIEWPOINT
Post Office Box 1976
Bakersfield, California
“Freedom is not free, free men are not equal,
and equal men are not free’? ! !
Presenting:
WHo or Wuat Dozs
THe A.D. L. Represent?
Vol. 3, Nos. 5, 6 & 7
January 6,7 & 8, 1965
IN TIMES OF NATIONAL EMERGENCY, SILENCE ISN’T GOLDEN,
IT’s YELLOW !
‘So because thou art neither cold nor hot,
I will spue thee out of my mouth’’ (Rev. 3:16)
Some little time ago I brought you a program entitled
‘‘Anti-Semitism’”’. At a later date I brought a three day
program which I entitled ‘‘The Smear’’. Both dealt with
what is basically the same problem. The effort on the part
of some groups or organizations to discredit the American
who endeavors to defend ‘our way of life’’ and believes
that this is a Christian Constitutional Republic. Now the
fight is well out in the open.
A few words are necessary before I get involved in the
subject. It has been said, ‘‘none but a Jew dare criticize a
Jew’’, I personally don’t believe it. But irrespective, what
[ am about to deal with is an ORGANIZATION, or rather
in this instance, TWO ORGANIZATIONS, both of whom
claim to speak for the Jewish People. I don’t believe they
necessarily do. There is a parallel in the work of the NA-
TIONAL COUNCIL OF CHURCHES, a socialistically
minded organization if I ever saw one, who masquerade as
the VOICE OF AMERICAN PROTESTANTISM. Just as
Ea ERIE Che
i |
50a
this organization in no wise reflect the opinion of the funda-
mental, bible believing, God fearing, patriotic Christian, so
too I hope to find, so too do these two organizations I am
about to mention do not reflect the opinion of all the Jewish
community. Far from it. But a very real problem exists,
and we are about to speak on one or more facets of it.
Also before I get well started, let it be said that all of the
principal Conservative Organizations in America, are find-
ing themselves under attack by the ANTI DEFAMATION
LEAGUE and its agents. It is both ‘‘unChristian’’ and
immoral to expect the right wing not to explain its position.
To my knowledge the position of the ADL is now being
challenged by something like a bakers dozen of the con-
servative organizations. I will be bringing you quotes from
COUNTERATTACOK which is a very valuable publication
put out by a group headed by ex-F'BI men who plan to see
us continue under a ‘‘Republican’’ form of government.
Dr. McIntire is carrying on what threatens to become a
running battle. The COUNCILOR had taken a mighty
swing as has the CHURCH LEAGUE OF AMERICA.
The FREEDOM PRESS, THE PAUL REVERE YEO-
MAN ASSOCIATES, THE CANADIAN INTELLI-
GENCE SERVICE, JOSEPH P. KAMPE’S HEAD-
LINE PAMPHLETS and many others are realizing this
information must be gotten to the public. I say good and
more power to them. Mind you, this is not a ‘‘re-
ligious’’? issue!! It is the ADIL (the anti-defamation
league) who would have you think so. Frankly, as I hope
to develop, it is a matter of the objectives of the organiza-
tion. So, from this point on, what I have to say will be,
as the saying goes, nothing but solid documentation. Wish
me well, there is no point in the entire battie for the Re-
public more in need of clarification.
The immediate reason for this program, which I do in an
effort to show that we must resist all efforts toward
‘‘world government’’, centered in a news clipping some
5la
two or three weeks ago: I quote, ‘ (headline) JEWISH
CONGRESS PLANS TO FIGHT ‘radical right’’, then
the article, UP Wire Service, dateline Chicago: ‘The
American Jewish Congress, (AJ C) has started a nation-
wide campaign to counter what it calls programs of “smear
and intimidation’ sponsored by extremist groups. C.
Irving Dwork, national secretary of the congress, told the
organization’s National Governing Council Sunday that
right wing activities have increased since election day.
Dwork said the American Jewish Congress campaign
would directly attempt to discourage contr‘butions to ultra-
rightists groups from corporations, foundations and
wealthy individuals.’’ Unquote, end of article, now isn’t
that something. That’s really bringing it right out in the
open!! A group that purposes to represent a large seg-
ment of American Jewry plans to try to cut off the money
to ‘‘ultra right’’ groups, by directly approaching corpora-
tions, foundations, and wealthy individuals!! Mind you,
it isn’t anything about communism that they want cut off,
just the ‘‘ultra rightist’? organizations. Well, it should be
allowed that the ‘‘ultra rightist’? make a reply to their
‘smear and intimidation’’ accusation.
Let’s go back a few weeks, last September was the date
for the ANTI DEFAMATION LEAGUE declaring war on
the Radical Right and coutending that it was a THREAT
TO THE UNITED STATES OF AMERICA! This report
included such groups as the Christian anti-Communism
Crusade, the national Education Program, Facts forum
and the Dan Smoot Report, the Church League of America
and the Conservative Society of America. It describes as
extreme conservatives the Americans for Constitutional
Action, the Young Americans for Freedom and the maga-
zine, the National Review among others. This too is de-
serving of an answer.
My friends, what these organizations have in common
is an all out commitment toward the preservation of the
Republic, the United States of America. What they all
wha ANG shee: 4
52a
have in common is a firm resolve to expose SOCIALISM
as a threat to our national survival. Now if this conten-
tion is correct, how long is America going to stand for an
organization which labels patriots as anti-semites and
bigots for trying to preserve ‘‘our way of life’’ which is, of
course, Freedom under God, States Rights, individual re-
sponsibility, and a Republican form of Government!! So
now as the saying goes, from the horses mouth no less, let
us see if this isn’t the heart of the matter.
Probably as kind a starting place as any would be to
quote from the writings of the Jewish Poet and leader,
Israel Zangwill, wherein he was addressing the ‘‘Children
of the Ghetto’’ as the volume was called, or the English
Jewish community back at the turn of the century. Mind
you, Zangwill is not only a leader but is also known for
his early support of the Zionist movement. (He later sep-
arated from them when they insisted upon a return to
Jerusalem rather than an other area that Zangwill deemed
suitable.) Listen closely to the by-play as he, the poet,
addresses victims of a “sweater factory’’ where undoubt-
edly there were existent sweat shop conditions: ‘‘ Brethren
in exile,’’ said the poet. ‘‘The hour has come for laying
the sweater low. Singly we are sand-grains, together we
are the simoom Our great teacher, Moses, was the first,
Socialist. The legislation of the Old Testament—the land
laws, the jnbilee regulations, the tender care for the poor,
the subordination of the rights of property to the interests
of the working men—all this is pure Socialism!’’
The poet paused for the cheers which came in a mighty
volume. Few of those present knew what Socialism was,
but all knew the word as a shibboleth of salvation from
sweaters. Socialism meant shorter hours and higher wages
and was obtainable by marching with banners and brass
bands—what aeed to inquire further?
‘In short’’, pursued the poet, “Socialism is Judaism and
Judaism is Socialism, and Karl Marx and Lassalle, the
53a
founders of Socialism, were Jews. Judaism does not
bother with the next world. It says, Hat, drink and be
satisfied and thank the Lord, thy God who brought thee
out of Egypt from the land of bondage.’? But we have
nothing to drink, we have nothing to be satisfied with, we
are still in the land of bondage.’’ (Cheers.) ‘*My brothers,
how can we keep Judaism in a land where there is no
Socialism? We must become better Jews, we must bring
on Socialism for the period of Socialism on earth and of
peace and plenty and brotherly love is what all our prophets
and great teachers meant by Messiah-times.”?
Now there is a great deal more in this very readable
little volume but basically I think that tells the story. ‘‘My
brothers, how can we keep Judaism in a land where there
is no Socialism? ‘“We must become better Jews, we must
bring on Socialism’’, My friends, I wonder if the Ameri-
can Jewish Congress, and the ANTI DEFAMATION
LEAGUE OF AMERICA would be so kind as to openly
allow that their grievance with the “ radical right’? is that
it is blocking any and all efforts by any group or organiza-
tion, to ‘‘bring on socialism?”? No matter how thin you
slice it, only in this explanation can you find the answer to
why these organizations are death of ‘‘conservatives’”’ but
don’t waste any time fighting communism.!!! It was of
course the eminent authority, Rabbi Stephen Wise who is
quoted as having said, ‘‘some call it martism, I call it
Judaism.”’
Let’s take a moment and take inventory and see just
where we are, we who term ourselves ‘*conservatives’’ in
America.
First, last and always, we believe in ‘*Freedom of
Speech”’ in America. We do not believe any organization
has a right to advocate the overthrow of the government.
And the government is a Constitutional Republic, each of
the several states being guaranteed a ‘*Republican Form of
Government.”’
54a
Now religiously speaking, there should be room for all
beliefs in America. But the end result should be obvious
to the most unthinking persons, if one organization is going
to take political action, as in the case of the AMERICAN
JEWISH CONGRESS AND THE ANTI DEFAMATION
LEAGUE OF AMERICA, and another group refuse to
‘‘mix in politics’? as does the fundamental Christian church
in America. It would be interesting to study the develop-
ment of that particular suicidal doctrine.
I have been studying an amazing little booklet. It is en-
titled ‘‘I Testify’’ and the author is Robert Edward Ed-
mondson, now deceased, but in his day a very capable news-
paperman. In his day he had quite a run in with the Ameri-
can Jewish Congress and was even held for trial by the then
mayor of New York, LaGuardia. The mayor resisted all
efforts to bring the case to fair trial and when it proved
that the advantage would rest with Mr. Edmondson, it was
dismissed following a petition by the American Jewish
Congress, back in April of 1958 so we now see history
somewhat repeating itself. Edmondson made it abun-
dantly clear in all his writings that he was in no wise at-
tacking the Jewish community, certainly did not consider
their religious beliefs to be pertitent to the case, but that
he did endeavor to expose what he deemed to be an inter-
national conspiracy which appeared to have a great many
Jewish adherents.. And suddenly, as he fought to expose
‘‘Socialism, Communism, one worldism,’’ he found his
meager resources pitted against the American Jewish Con-
gress and it’s limitless ‘‘power of the purses’’. His con-
tention was that under FALSE JEWISH LEADERSHIP,
the downfall of the nation was being engineered. His
documentation would appear irrefutable, certainly as we see
our nation bled white to create the new nation of Israel
and the land stolen from the Arabs who had occupied for
literally thousands of years, it is difficult to see how our
national and internation policies can long endure. Cer-
tainly we are not working toward keeping our “sover-
55a
eignty’’, but rather toward « ‘‘One world’ ’, Socialistic,
government. Mind you, there is no law in the land against
a citizen of the Republic desiring that end, there is some-
thing inconsistent however with taking public office, swear-
ing to uphold the constitution, and then working to so-
cialize the government. Zionism is a political move, not a
religious one. But it was Ben Gurion, premier of Israel
who boldly told us, as published in the Look magazine,
‘‘within 25 years he looks for the supreme court of all man-
kind’’, to be in Israel, with all other governments subserv-
ient. He can dream, so can I, of a free America, the land
of our forefathers, preserved as a heritage, for my chil-
dren. America has always welcomed ‘‘oppressed minori-
ties’’ to her shores but not for the purpose of altering our
form of government. The entire concept of a separate
nationality is alien to the American idea. Needless to say
there are a great many Jews who would dearly love to
have the ADL, and the AJC, stop trying to protect them.
The dual citizenship claimed for the adherents of the
pharisaic teachings as laid down in the Talmud, is unques-
tionably very trying.
May I include two quotes that I always found intriguing:
The New York Publication, Jewish Voice, July, August
issue, 1941, page 23: I quote, Anti-Communism is anti-
semitism. And this jewel, from the Jewish Life, also New
York: Scratch a professional anti-communist and you will
Srd an anti-semite. Unquote. May I suggest you bear
this in mind as you read of the ADL and the AJC declaring
war on the so-called “radical right’? which is, after all, try-
ing to defend America from communism. You see, my
friends, we know that Communism and socialism are one.
Last that you remember also the thinking indicated by
Israel Zangwill, Socialism is Judaism and J udaism is
Socialism, and a bit further, “My brothers, how can we keep
Judaism in a land where there is no Socialism?” Unquote,
well I may not have an answer to that one, but I do believe
it behooves each and every citizen of the republic, regardless
of racial, ethics, or religious background, to defend the
56a
republic against those who would try to subvert it te some
form of Godless, Socialistic, One world government. I can
do no less, and stand before God as I understand His pur-
pose in my life, my allegiance to The Republic demands
everything i have. It’s a fine Republic, its been more than
generous to all ‘‘alicn minorities’. It is to be regretted
if the presumed leadership of such a minority declares
war on those who fight to preserve our rich heritage.
Tomorrow we will continue to reveal a pattern of control
between this concept and the One World organizations, the
sooner you write for it the sooner you will have it and »e-
fore I am through, there should be some fairly revealing
quotations. Oh yes, T am net an ‘‘anti-semite’’, and if any-
one tells you that I am, tell them their mistaken. But you
can tell them this, I am a Christian, Constitutional, Con-
servative. Maybe they’ll be honest enough to answer, well,
that’s the same thing! Then indeed you could say, ‘‘well
that’s mighty, mighty interesting!!
Until tomorrow, our post office box is Box 1976, Bakers-
field, California, program #5, and this is Richard Cotten
reminding you as always, freedom is not free, free men
are not equal, and equal men are not free plus, it seems
fitting, THIS IS A REPUBLIC, NOT A DEMOCRACY,
LET'S keep it that way!! God bless you.
January 7 & 8, 1965
In starting this series of talks | stressed that it is only
after both the Anti Defamation League of Bnai Brith and
the American Jewish Congress have publically determined
to destroy the so-called ‘‘radical right’’ that it was deemed
wise to try to rationalize their objectives. The age-old
‘*smear of ‘‘anti-semitism’’ is supposed to have sufficient
power to prevent our retaliation. Thus far I have been as
objective as possible, trying to ferret out the explanation
as to why these two monstrously powerful organizations
that purport to speak for American Jewery, are death on
the “Right wing’’ and soft on communism. Yesterday’s
program endeavored to shed some light on what appears
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to be the only logical conclusion. We quoted the famous
jewish poet, Israel Zangwill who seemingly revealed that he
deemed it impossible to ‘‘keep Judaism’ in a land where
there was 10 ‘‘socialism’’!! Now personally I believe this
is pretty near the ‘‘root of the matter’’, Copies of the
broadcast are available and if either the ADL or the AJC
wish to challenge the massive evidence indicating that they
wish to create ‘‘socialism’?’ I will give their rebuttal publi-
cation and then proceed to further document what appear
to me to be the facts in the case, namely that these or-
ganizations see the ‘right wing’? standing in the way of
their plans to bring us under a One-world socialistic Gov-
ernment. Mind you, under our present laws this is a legiti-
mate objective if they wish to pursue it. But similarily it
must be presumed that I have not only the right but the
moral obligation to expose the pitfalls of “socialism”? and
try to reveal what to me is a diabolic pattern.
Today and tomorrow I intend carefully documenting,
from the words of eminent men within our government, the
fact that indeed there is such a power bent upon the de-
struction of our two party system. Now as I do this let
it be known that not less than twelve ‘‘conservative or-
ganizations’’ are each, in their own way, trying to educate
the American public to the workings of the Anti Defamation
League in America. To name a few (who deem it high
time for a frontal attack upon this organization) we find
Church League of America with Major Bundy, the Twen-
tieth Century Reformation hour with Dr. Carl McIntire,
The publication COUNTERATTACK published by some
pretty wonderful ex-FBI men, THE COUNCILOR edited
by Ned Touchstone, THE HERALD OF FREEDOM edited
by Frank Capeil, and other competent, Constitutionalists,
who are determined to preserve as a Republic, the United
States of America. Also as many of you know, it was the
infamous smear book entitled DANGERS ON THE RIGHT
written for the anti-defamation league, that brought this
matter to the entire “right wing’s” attention. I had been
exposed to the same author, a man who now ealls himself
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Arnold Forster wherein the same anti defamation league
had used him to smear patriots back in 1950 in a volume en-
titled ‘‘A MEASURE OF FREEDOM’. If the ADL is
supposed to be the friend of the jewish community, I can
only say, ‘‘who needs enemies?’’ Of course there is a very
complex answer.
Now then, listen carefully to the words of Senator Wil-
liam E. Jenner of Indiana, addressing the Senate on Feb-
ruary 23, 1954: (oh, how I wish we had some of his kind
around right now) I quote:
‘‘We have a well organized political action group in the
country, determined to destroy our constitution and estab-
lish a one party state. This political action group has its
own political support organizations, its own pressure
groups, its own vested interest, its foothold within our gov-
ernment, and its own propaganda apparatus.’’ Unquote and
now let’s get down to the subject. I may have to take the
rest of this day’s broadcast to qualify my ‘‘witness’’ but if
so, it’ll be worth it, because in my opinion none have done a
better job of describing the working of the ADL and the
AJC than did founder of the California Senate Fact Find-
ing Committee on Un-American Activities, in California,
Senator Jack B. Tenney. Oh, he paid the price alright,
powerful forces finally defeated him, but he is now en-
gaged in a highly successfui law practice in Southern Cali-
fornia. While he was in Sacramento, the ‘‘Tenney Com-
mittee’? had the respect of law enforcement throughout
the nation.
Now, if I seem ponderous please bear with me for a
moment, it is presumably impossible to criticize this or-
ganization and continue on the air, I intend proving other-
wise but I do want to make very clear, my position.
First item: Both the Anti Defamation League and the
American Jewish Congress have publicaliy and taken on
the ‘‘right wing’’ which they contend is a threat to the
United States of America. This unquestionably deserves
an answer.
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2nd item: Before someone starts calling me an ‘‘anti-
semite’’ (a smear term if I ever heard one) let it be said
that neither the ADL nor the AJC necessarily speak for all
of ‘‘Jewery’’ any more than the National Council of
Churches speaks for all of protestantism.
3rd item: I shall proceed, as the fellow said when
asked how a porcupine makes love, very, very, carefully.
Let it be said that I will bring you the written expression
of Senator Jack B. Tenney rather than my own, and that
I will first fully qualify him as to his qualifications for ex-
pressing such an opinion. Now that is the American way
of doing things, no ‘‘smears”’, no labels, just facts, from the
best possible authority.
Senator Tenney wrote several books which an obedient
organization has caused to disappear from your library
shelves if indeed, they ever had the courage to purchase
them in the first place. Three of these books were re-
printed under one cover, called the TENNEY REPORTS
ON WORLD ZIONISM. One book therein is entitled
‘‘Zion‘s Fifth Column’, another is ‘Zionist Network’?
with an introduction by Franklin Hichborn who in turn
wrote wonderfully well on how ‘‘minorities control the ma-
jorities in congress’’, and the third book, ‘‘Zion’s Trojan
Horse’’ with an introduction by Col. John Beaty. The
latter gentleman has several distinctions. One is that he
authored the book, TRON CURTAIN OVER AMERICA
and thereby won the everlasting hatred of the ADL, the
other being that posthumously the Sovereign State of
Texas by official action caused to be read into the record, a
very worthy commendation. May I say that no less digni-
taries than General Stratemeyer, Genera] Almond, Ad-
miral Crommelin, and General Del Valle recommend his
book most highly. In addition, Senator William A. Langer,
Chairman of the J udiciary Committee expressed the opin- ,
ion that, quote, ‘‘ I think it ought to be compulsory read-
ing in every public school in America.’? Unquote, referring
to the book IRON CURTAIN OVER AMERICA, by the
A ee
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author, John Beaty who is about tc bring you his opinion
of the writings by Senator Jack B. Tenney that I want to
share with you. If this sounds round about, there is a
reason. Listen now, to his opinion of Tenney’s writings:
‘‘Ten years of arduous work in the California Senate as
Chairman of the Committee on Un-American Activities has
given Senator Tenney a great body of information on vital
facts to which newspaper columnists and other political
writers, and even academic historians, have no means of
access. The reason is obvious. In his strategic position,
Senator Tenney not only had opportunities denied to others
for uncovering secret data; he even had the power to force
the disclosure of much information which would under no
circumstances have become known to a writer who was not
in a similar position of government authority.
‘‘Other authors have written books which purport to
cover the history of the past half eentury or to deal with the
foreign policy of the United States of America and yet,
from fear of an alien minority, make no reference what-
ever to Middle East, Israel, Jews, Judaism, Khazars, or
Zionism! These books name names but never the names of
such history-making Jews as, for example, the Rothschilds,
Chaim Weizman, Samuel Untermeyer, Stephen A. Wise,
and Louis D. Brandeis—much less the names of those
Jews prominent in more recent times in
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.