Petition for Writ of Certiorari — Yale Broadcasting Company v. Federal Communications Commission

INDEX

Page

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Constitutional and Statutory Provisions Involved .... 3

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Reasons for Granting the Writ .................... 12

APIA Re Ra aie mE REY ne 22

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CITATIONS

CASES:

Anti-Defamation League of B’Nai B’rith v. FCC, 403

F.2d 169 (D.C. Cir. 1968), cert. denied, 394 U.S.

RR rene eres perenenes ae 16

Brandenburg v. Ohio, 395 U.S. 444 (1969) ............ 13

Continental Oil Co. v. FPC, 285 F.2d 527 (5th Cir.

eh oe ses ogee oe ote 8 ok 20

Freedman v. Maryland, 380 U.S. 51 (1965) ........-. 21

Kingsley Int. Pictures Corp. v. Regents, 360 U.S. 684

ee od eg do coe ee ek ee ee 13

ii Index Continued

Page

Smith v. California, 361 U.S. 147 (1959) ......... 2, 10, 11,

3B 13, iy

Speiser v. Randall, 357 U.S. 513 (1958) ............. 9

United Gas Pipeline Co. v. FPC, 203 F.2d 78 (5th Cir,

| eA ere rer eer reer er, Ter rrr 0

United States v. Carolene Products Co., 304 U.S. 144

CE sak ca oa eek VO SAE A eae RA ekaane 99

Washington Post Co. v. Keogh, 365 F.2d 965 (D.C.

Cir. 1966), cert. denied, 385 U.S. 1001 (1967) .... 14

W.J. Dillner Transfer Co. v. McAndrew, 226 F. Supp.

860 (W.D. Pa. 1963), aff’d, 328 F.2d 601 (8rd Cir.

Bee CF CORUIND ova nda uc cece eereess saves 20

ConsTITUTION, STATUTES AND REGULATIONS:

United States Constitution:

SUID 5 v6 nc bus he webb Case Keane ness 3

Be Se ED ac won ts hoa e baa ose ee bee ener 18

Se Sr, BEAD SOPOE a v5 a daaeee es cucuceabyeures 2

Administrative Procedure Act, 5 U.S.C. 553 (1970),

OES bak bacteria bacencnshs ek secekesea eel 4,6, 11

Administrative Procedure Act, 5 U.S.C. 554 (e) (1970),

PE ann bap ke awe eeeee akan 2, 3, 9, 0, li

Communications Act of 1934, 47 U.S.C. 326 (1970) .. 6

est se Age e+: Peer Orr Try ry 3, 9,17

MISCELLANEOUS:

Administrative Procedures in Government Agencies,

Report of the Committee on Administrative Pro-

cedure, Sen. Doe. No. 8, 77th Cong., 1st Sess.

tReet a a eeremen pega ena ne rey Shem eae ones Use gM 21

H. Monaghan, First Amendment ‘‘Due Process,’’ 83

See. Ba: Se RE 6 vi 4s a haan a easseees 2?

Note, The First Amendment Overbreadth Doctrine, 83

ee OK errr erty re 12

Seeger, P., When the Mode of the Music Changes, 1

SUNN Soe cdi) Cane ead can caneescnteneaeurianes 15

Senate Judiciary Committee, Committee Print, Sen.

Doe. No. 248, 79th Cong., 2d Sess. (1946) ...... 20, 21

IN THE

Supreme Court of the United States

OctToBER TERM, 1972

No. 72-

YaLE BroapcasTinG Company, ET AL., Petitioners,

v.

FepeRAL COMMUNICATIONS COMMISSION and UNITED

States oF America, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

The petitioners Yale Broadeasting Company, et al.,

respectfully pray that a writ of certiorari issue to re-

view the judgment and opinion of the United States

Court of Appeals for the District of Columbia Circuit

in Yale Broadcasting Company v. FCC, No. 71-1780,

entered on January 5, 1973.

2

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix B

hereto), and the per curiam opinion of the full Court

denying rehearing en bane (Appendix A), have not

yet been officially reported. The three related opinions

of the Federal Communications Commission are re-

ported at 31 F.C.C. 2d 385 (1971) (Appendix ©), 31

F.C.C. 2d 377 (1971) (Appendix D), and 28 F.C.C, 2d

409 (1971) (Appendix E).

JURISDICTION

The judgment of the Court of Appeals for the Dis.

trict of Columbia Cireuit (Appendix B) was entered

on January 5, 1973. On April 6, 1973, the Chief Justice

extended the time within which to file a petition fora

writ of certiorari to and including May 4, 1975. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1) (1970).

QUESTIONS PRESENTED

1. Whether the Court of Appeals and the Federal

Communications Commission correctly held that the

First Amendment principle of Smith v. California, 361

U.S. 147 (1959), does not apply to the broadeast media,

so that, unlike booksellers and distributors of

‘‘printed”’ speech, radio and television stations can be

deprived of their licenses if they fail to ascertain, w-

derstand and ‘‘evaluate’’ the content of the recorded

song lyrics they play.

2. Whether an administrative agency, after issuing

policy statements that admittedly create confusion and

chill protected speech, can refuse to exercise its *‘sound

diseretion,’’ under Section 5(d) of the Administrative

Procedure Act[5 U.S.C. § 554(e)], to issue a declara-

3

tory judgment to radio and television broadeasters who

request guidance for complying with agency policy

without jeopardizing their licenses.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the Constitution of the

United States provides:

‘*Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably

to assemble, and to petition the Government for a

redress of grievances.”’

Section 5(d) of the Administrative Procedure Act,

5 U.S.C. §554(e) (1970), provides:

“The agency with like effect as in the case of

other orders, and in its sound discretion, may issue

a declaratory order to terminate a controversy or

remove uncertainty.”’

Section 1.2 of the Federal Communieations Commis-

sion’s Rules, 47 C.F.R. § 1.2 (1972), provides:

‘The Commission may, in accordance with See-

tion 5(d) of the Administrative Procedure Act, on

motion or on its own motion issue a declaratory

ruling terminating a controversy or removing un-

certainty.”

STATEMENT OF THE CASE

This case involves three orders of the Federal Com-

munications Commission which require radio and tele-

vision stations to ascertain the content and meaning

4

of all song lyrics they play, and make a “judgment”

concerning the wisdom of broadcasting songs with spe-

cific messages. Although the Commission’s opinions

were aimed primarily at veeord lyries with ‘language

tending to promote or glorify the use of illegal drugs”

(App. E, p. 39a), they were broad enough to regulate

the broadeast of all ‘‘recorded musical or spoken selee-

tions’? (App. KE, p. 39a).

The Commission’s first order was adopted by Public

Notice released sua sponte on Mareh 5, 1971." (See

Licensee Responsibility to Review Records Befor

Broadcast, App. FE, p. 39a). The notice prohibited

broadeast licensees from playing musical recordings

without making ‘‘reasonable”’ efforts to (1) listen to

each recorded song or otherwise ‘‘ascertain’’ the

‘‘meaning’? of its ‘‘words or lyries’’; (2) judge

whether individual songs tended to ‘‘promote or

glorify’ illegal drug usage; and (3) determine whether

broadeast of such lyrics served the public interest.

Failure to comply with such screening procedures

would jeopardize the station’s license and “raise

serious questions as to whether continued opera-

tion of the station is in the public interest.”’

Three of the six participating Commissioners stated

separately that the purpose of the Notice was to induce

licensees to ‘‘ecensor’’ or ‘‘eliminate’”’ the broadeast of

1The Commission did not utilize the rule making provisions

contained in Section 4 of the Administrative Procedure Act,

5 U.S.C. $553 (1970). The Notice therefore was issued without

formal notice. Interested parties had no opportunity to submit

advance comments for the record.

o

allegedly drug-oriented songs.” Many licensees ac-

cepted their statements as controlling.* Stations re-

moved many songs from the air.* Records were defaced

2 (Commissioner Robert Lee, joined by Commissioner Houser, ob-

served: “*T sincerely hope that the action of the Commission today

_. will discourage, if not eliminate, the playing of records which

tend to promote and/or glorify the use of illegal drugs’’ (App. E,

p. 40a). Commissioner Nicholas Johnson disserted, calling the

Notice an ‘‘unsuecessfully disguised effort’? to ‘‘censor song

Ivries."” IIe added: ‘‘Under the guise of assuring that licensees

know what lyrics are being aired on their stations, the FCC to-

day gives a loud and clear message: get those ‘drug lyrics’ off

the air. . . or you may have trouble at license renewal time’’

(App. E, p. 42a). Commissioner TI. Rex Lee concurred, stating

his regret that the Notice did not apply to all programming (App.

E, p. 40a). Commissioner Houser also concurred, warning that

the broadcast industry might be contributing ‘‘to the drug prob-

lem"? (App. E, p. 41a).

3 Several licensees in a Virginia survey described their reactions :

“Tf there is a mention of drugs in a record, it is off beeause of

this ruling—any drug lyrics and it goes... . [I]f it’s not clear,

or it’s marginal, then we've got to protect ourselves and we won't

play the song’ (JA. 164). (*TLAL? references are to the Joint Ap-

pendix filed with the Court of Appeals below. <A certified copy

has been lodged with the Clerk of this Court.) ‘‘[T]he FCC is

saving, ‘Even though this isn’t a regulation, vou had better watch

yourself, because we will ask vou questions about it [songs with

drug references] next time your license comes up for renewal’ **

(J.A. 166-67). ‘*[W]hy hassle it—other songs are available and

we will make the same money without playing drug songs .

License renewal comes up in 1972, and everybody is holding their

breath’* (1.4. 167). Many similar reactions appear at oA. 158-78.

*Stations banned many well-known songs, including ‘‘ Puff the

Magie Dragon’? (Peter, Paul & Mary), ‘‘Luey in the Sky With

Diamonds** (Beatles), ‘‘With a Little Tlelp From My Friends’’

(Beatles), ‘‘Mr. Tambourine Man” (Bob Dylan), and ‘‘ White

Rabbit’ (Jefferson Airplane) (J.A. 169-76). One licensee banned

all Bob Dylan records beeause it ‘could not interpret the lyries’’

(TA. 148). Records thought to be drug-related were put on

“Do Not Play”? lists (J.A. 87-88, 147-48).

6

to prevent accidental broadeast (J.A. 195%). “Do

Not Play”’ lists of forbidden songs were circulated

through stations (J.A. 87-88, 147-48). Announeers

were fired for playing songs with suspected drug con-

notations, or for failing to pre-screen their selections

(J.A. 88-89, 148).

Petitioners herein asked the Commission to recon-

sider and withdraw its Notice on constitutional and

statutory grounds.’ Petitioners, who represent various

interests, are the college radio stations of Yale Uni-

versity and the University of the Pacifie (Cali-

fornia), a national drug abuse council, three an-

nouncers fired by management for playing records

deemed banned by the Commission, several an-

nouncers who felt intimidated in their selection of

records, and various listeners of stations that had re-

moved specifie records from the air.°

The Commission denied the petitions for reconsider-

ation on April 16, 1971 (App. D, p. 38a). While it

addressed the issues raised in ‘‘greater detail,’’ its

face y A.’’ refers to the Joint Appendix in the Court below which

the parties have lodged with the Clerk of this Court.

5 Petitioners argued, infer alia, that the Commission had im-

permissibly induced broadcast licensees to self-censor protected

speech, had subjected the broadcast of protected songs to uncon-

stitutional ‘‘ prior restraints,’’ had violated the no-censorship ban

in Section 326 of the Communications Act, 47 U.S.C. § 326 (1970),

and had acted without the notice and procedural safeguards for

rulemaking under the Administrative Procedure Act, 5 U.S.C.

§ 553 (1970). (See J.A. 22-67)

® Petitioners are Yale Broadcasting Company (WYBC-FM.

New Haven, Conn.), University of the Pacifie (KUOP-FM, Stock-

ton, Calif.), National Co-ordinating Council on Drug Abuse, Inc.,

Steve Leon, John Gorman and Kenneth Currier (discharged an-

nouncers), Charles Laquidara, Stuart Jackson and James Irwin

(announcers and station managers), and Mark Gorbulew and

Sara Vass (Washington, D.C., residents and listeners).

7

opinion and order ‘‘adhere[d] fully’? to the policy

stated in its first Notice:

‘**Whether a particular record depicts the dan-

vers of drug abuse, or, to the contrary, promotes

such illegal drug usage is a question for the judg-

ment of the licensee. The thrust of this Notice

is simply that the liceisee must make that judg-

ment and cannot properly follow a policy of play-

ing such records withsut someone in a responsible

position (i.e., a management level executive at

the station) knowing the content of the lyries’ ”’

(App. D, p. 38a; see App. FE, p. 39a).

The Commission also clarified its earlier Notice in

two respects.

First, it conceded that songs referring to drugs are

protected speech and immune from direct censorship

by the Commission (App. D, p. 34a).’ Stating that

a licensee is ‘*not a book store’? (App. D, p. 36a), how-

ever, the Commission reminded stations that they must

still know the ‘‘eontent’’ of the records they played.

Stations, in other words, might play any song they

wished. But they could lose their licenses if they did

so Without knowing the ‘‘meaning’’ of the lyries, and

without deciding whether those songs served the public

interest.

Second, the Commission stated that a licensee’s at-

tempts to acquire knowledge of a record’s content need

not be ‘‘extensive’’—merely ‘reasonable’? (App. D,

p. 36a). Licensees, the Commission suggested, could

acquire the requisite knowledge by pre-screening each

record hefore airplay, by instructing announcers to

—_—_.

‘Although Chairman Burch concurred in this conclusion, he

later indicated to Senator Nelson that he would ‘‘vote to take

the license away’’ from any station playing songs that promoted

the use of drugs.’’ (App. A, p. 5a).

8

bring records they had played ‘‘onee”’ to a ‘respon-

sible management official’? for final sereening, or by

sereening records named in listeners’ complaints (App.

D, pp. 35a-36a). Although individual records were not

banned, a licensee failing to make ‘‘reasonable”’ at-

tempts at learning their content would still lose its

license.®

Despite this second opinion, uncertainty remained

in the broadeast industry.” Petitioners accordingly re-

quested the Commission to reconsider and clarify its

opinion in certain respects, and withdraw it in others.

In addition, petitioner Yale Broadcasting Company

drafted compliance guidelines of its own in the form of

a proposed ‘Station Policy Concerning the Broadcast

of Musical Recordings’? (see App. C, p. 30a). Yale

asked the Commission to provide it with a declaratory

order stating whether its proposed ‘‘Policy’’ would

comply with the Commission’s song lyric procedures,

8 Commissioner Wells concurred in the Commission’s opinion,

but stated somewhat contradictorily that evaluating the content

of record lyries was ‘‘an impossible assignment’? (App. D, p. 38a).

Commissioner Bartley coneurred, but only to the extent that the

Commission’s opinion ‘‘return[ed] to the situation prior to re-

lease of the Publie Notice of March 5, 1971’? (App. D, p. 38a).

Commissioner Johnson again dissented.

® Several licensees remarked: ‘‘What they are saying and what

they mean are two different things—they meant to tell broad-

casters what not to play’’ (J.A. 338). ‘‘They say that they now

won’t take away your license, but also say don’t play pro-drug

records—it makes no sense at all. I’m going by the first one

[the Public Notice of March 5th]’’ (J.A. 339). ‘‘[T]he order

says you can’t be prosecuted for playing drug-oriented songs, but

yet you must know what you are playing. This requires me to

know the lyries of every song I play, which is absurd, because

you just can’t hear or understand some of the lyries of some songs

.... I feel the whole thing could turn into a witeh-hunt”’ (J.A

343). Further similar comments appear at J.A. 336-46.

9

or whether, if implemented, it would jeopardize

Yale’s license.” Yale’s ‘‘ Poliev’’ expressed awareness

of the drug problem, but preposed to deal with it in

public service and news programming. In this man-

ner, Yale hoped to retain its freedom to select rec-

ords for broadeast on the basis of their artistic

merit, and not the meanings of specific lyrics. Yale con-

tended that the uncertainty surrounding the Commis-

sion’s prior rulings should impel the Commission to

give it guidance by ruling on its proposed program-

ming ‘‘Policy.”’

The Commission denied all of petitioners’ requests

ina third opinion on August 18, 1971 (App. C, p. 27a).

It described its ascertainment policies as ‘‘amply clear”

and refused to clarify or withdraw its earlier opinions.

The Commission also refused to issue a declaratory

order on the validity of Yale’s proposed programming

“Policy,” finding it ‘‘abstract’’ and ‘‘not fleshed out

by the licensee’s actual operation.”’ ‘‘In this delicate

area,’’ the Commission concluded, ‘‘we think it prefer-

able to avoid unnecessary rulings’? (App. C, p. 28a).

Commissioner Johnson again dissented. He called

the Commission’s policies **so vague and overbroad as

to continue to be impermissible under the First Amend-

ment,’ and urged the Commiissien to ‘issue a clear and

unequivocal repudiation and withdrawal of our March

5 and April 16, 1971 Policy Statement’? (App. C,

pp. 28a, 30a). Only in this manner could the ‘‘chilling

“Yale Broadeasting Company invoked Section 5(d) of the

Administrative Procedure Act, 5 U.S.C. $554(e) (1970), and See-

tion 12 of the Commission's Rules, 47 C.F.R. $1.2 (1972), to

request the declaratory ruling. Section 1.2 of the Commission’s

Rules simply authorizes the Commission to issue declaratory rul-

ings in a manner consistent with Section 5(d) of the APA.

10

effect’’ on freedom of broadcast speech be partially re-

paired.”

On a petition for review to the Court of Appeals for

the District of Columbia Circuit, petitioners urged two

basie grounds for reversal. First, they argued that

this Court’s opinion in Smith vy. California, 361 US,

147 (1959), prevented the Commission from placing

on broadeast licensees the procedural burden of ex-

amining every record they played for content, meaning,

and merit. To do so would curtail the diversity and

quality of musical expression available to the public.

Second, petitioners argued that the Commission abused

its ‘‘sound diseretion’’ under Section 5(d) of the Ad-

ministrative Procedure Act, 5 U.S.C. 554(e) (1970),

by refusing to grant Yale Broadcasting Company’s re-

quest for a declaratory order. Without a declaratory

ruling, Yale would be forced either to abandon its

proposed ‘‘Policy’’ for broadcasting songs, to the detri-

11 Commissioner Johnson observed:

‘*? When the President of the company (or... the Chairman

of the FCC) shouts at us and tells us to stop what we’re doing

it takes an unusually strong (or foolish) person to go on speaking

or performing as before—however deeply he feels about it. No

matter how urgently we are subsequently assured that all is

forgiven and that we are encouraged to ‘speak our minds’ (or

... that the FCC doesn’t really mean to ban records) we have

already been psychologically inhibited. The First Amendment

damage has already been done.

‘*. .. Broadeasters—courageous and cowardly alike—are a pretty

skittish lot .... Having been told—very loudly and clearly—

that powerful people in Washington are interested in their records’

song lyrics, all too many will go out of their way to select lyrics

designed to please. At that point the government has succeeded

in its purpose; it is then safe to issue all the apologies and re-

scinding statements necessary to silence the erities’’ (App. C,

pp. 29a, 30a).

11

ments of its First Amendment rights, or proceed at its

peril and possibly risk its license at renewal time.”

The Court rejected both arguments in an opinion

noticeably hostile to contemporary popular songs.’

The Court dismissed Smith v. California, supra, by

stating that broadcasters needed to screen fewer ree-

ords than booksellers books, and that broadeasters

could not make judgments about the ‘‘wisdom’’ or

“value’’ of the music they aired without understanding

the words and meanings of individual songs (App. B,

p. 17a). The Court affirmed the Commission’s refusal

to issue a declaratory order, viewing its decision as an

exercise of ‘‘sound discretion.’? The Court did not

require the Commission to make any specific showing

that First Amendment speech values were unimpaired

by its inaction. It stated that Commission refusals

The petitioners also urged the Court to reverse the Commission

ona third ground, namely that the Commission’s policy on song

lyries was such a substantial departure from past rulings, that it

could only be promulgated through the rule-making procedures

of Section 4 of the APA, 5 U.S.C. $553 (1970). The Court ex-

plicitly rejected the argument. While the petitioners do not pre-

sent the argument as an independent ground for granting certi-

orari, they reserve the right to advance it as a ground for re-

versal should certiorari be granted.

8 Lyrics were described as ‘‘completely meaningless gibberish’?

that ‘“‘approach the equivalent of machinery operating or the

din or traffic’? (App. B, p. 18a). ‘‘At some point along the scale

of human intelligibility the sounds produced may slide over from

characteristics of free speech, which should be protected, to those

of noise pollution, which the Commission has ample authority to

abate’? (citing the Noise Control Act of 1972) (App. B, p. 18: .

The Court analogized ‘‘canned’’ recorded music to ‘‘pork and

beans’’ in a can on a grocery shelf (App. B, p. 19a), and deseribed

songs as ‘‘the banal observations of a moon-struck adolescent’’ or

“two enraged alley cats fighting in a garbage can’’ (App. B,

pp. 22a-23a).

12

to issue declaratory orders would be reversed only

for a *“‘elear abuse of diseretion,’? and implied that

ageney discretion in this area was substantial, if not

complete.

The full Court of Appeals denied a motion for re-

hearing en bane initiated by Chief Judge Bazelon

(App. A, p. la). Chief Judge Bazelon dissented in

a separate statement, arguing that the case presented

unresolved ‘‘questions of considerable significance”

(App. A, pp. Ta-8a).

REASONS FOR GRANTING THE WRIT

I. THE COURT BELOW HAS DECIDED A MAJOR QUESTION CON.

CERNING THE FIRST AMENDMENT RIGHTS OF BROAD.

CASTERS THAT CONFLICTS WITH A PRIOR DECISION OF

THIS COURT

The decision below undercuts this Court’s opinion

in Smith v. California, supra, and renders it inappliea-

ble to the most important media of communication to-

day. The Court of Appeals has ruled that the Gov-

ernment may impose procedural burdens on_ the

First Amendment activities of broadcasters that could

not be imposed on booksellers. This Court in the

past has serutinized prior restraints on speech with

strict care. It has sustained slight procedural burdens

in the area of broadeast speech, but only where they

are clearly designed to increase the overall diversity

of views available to the public." In a major depar-

ture, the decision below imposes substantial burdens

on protected broadeast speech which will only result

14 Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 389-92

(1969) (potential ‘‘chilling effect’’ of fairness doctrine procedures

outweighed by countervailing increase in diversity of views) ; see

generally, Note, The First Amendment Overbreadth Doctrine, 83

Harv. L. Rev. 844, 920 (1970).

13

in restricting rather than diversifying the public’s

aecess to protected speech.”

In Smith v. California, supra, this Court struck down

a California law making it a crime for a bookseller to

possess an obscene book without knowledge of its con-

tents. The Court reasoned that such a law would

force booksellers to play it safe and sell only those

books they had read. By reducing the number and

variety of bocks sold, the ‘‘public’s access to [pro-

tected] reading matter would be restricted.’’? Smith v.

California, supra, at 154.”°

If California, instead, had made it a crime merely

to sell any unread book—whether obscene or not—a

similar restraint would have been placed on printed

speech. Book stores could only sell the books they

had read. Yet the Court of Appeals below has im-

posed precisely this requirement on broadcast licensees.

Stations can now only play records they have ‘‘read.’’

Indeed, the Court of Appeals’ decision is signifi-

cantly more restrictive than the California statute in

Smith. There, booksellers could at least risk selling

Unlike the ‘‘obseene’’ books in Smith v. California, supra, the

broadcast speech here in question is not ‘‘illegal.’’ The Commis-

sion therefore has no legitimate interest in suppressing songs with

drug implications, and its policies cannot be sustained on that

rationale alone. See generally, Bradenburg vy. Ohio, 395 US.

44, 449 (1969) (‘‘mere advoeacy’’ of illegal conduct is protected

speech); Kingsley Int. Pictures Corp. v. Regents, 360 U.S. 684,

688-689 (1959) (invalidating ‘‘desirable, acceptable, or proper’’ as

a statutory standard for suppressing speech).

“Por if the bookseller is criminally liable without knowledge

of the contents [of his books], . . . he will tend to restrict the

books he sells to those he has inspected; and thus the State will

have imposed a restriction upon the distribution of constitutionally

protected as well as obscene literature... .’’ Smith v. California,

supra, at 153.

14

books from obviously ‘‘safe’’ categories—cooking,

travel, children, adventure—without having to read

them. They could quickly familiarize themselves

with the content from the cover, illustrations, pub-

lisher, or book reviews. Booksellers would be forced

actually to read only books from ‘potentially risky”

‘ategories. Under the Court of Appeals’ decision,

however, there are no ‘‘safe’’ categories. Licensees

must make efforts to ascertain the meaning and con-

tent of all records they play.“ And they ean only

do that by listening to each record.’* Unlike a book,

a record cannot be skimmed; each forty-five minute

album takes forty-five minutes to ‘‘read.’? The pub-

lie’s right to hear will be measured by the licensee’s

ability to digest the reeord lyrics in his library.”

The Court’s decision below is more restrictive than

Smith in one additional respect. There, booksellers

could only be punished for distributing unprotected

(‘‘obseene’’) speech. Here, however, broadeast

licensees can be punished for broadcasting protected

17Tt should be noted that the Court of Appeals viewed the

Commission’s policies as mandatory, not discretionary: ‘‘[W]e

conclude that for the Commission to have been less insistent on

licensees discharging their obligations would have verged on an

evasion of the Commission’s own responsibilities’? (App. B, p.

19a).

18 Record lyrie texts are rarely available and occasionally errone-

ous or unreliable (J.A. 108).

19 New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964),

also struck down analogous restrictions on printed speech. This

Court held that the procedural burden of checking all controversial

statements for ‘‘truth’’ would deter newspapers from covering

many controversial stories. The difficulty of screening records

for meaning and content is equally burdensome. See Washington

Post Co. v. Keogh, 365 F.2d 965, 972 (D.C. Cir. 1966), cert. denied,

385 U.S. 1001 (1967).

15

speech—song lyries—that they failed to ‘‘read’’ or

screen.

The Court of Appeals seeks to avoid the logic of

Smith, supra, by postulating differences between broad-

east stations and book stores. It suggests, for example,

that a screening burden is less for broadeast stations

because they only need to screen the song lyrie¢s actu-

ally broadeast (App. B, pp. 16a-17a). This suggestion

is factually contradicted by the record below (J.A. 43),

however, and overlooks the fact that the reeords even-

tually broadeast must be culled from literally thou-

sands of other available albums.”

The Court of Appeals also states that broadeasters,

unlike book stores, must make judgments concerning

the ‘“‘wisdom”’ or ‘‘value”’ of their programming, and

ean do this only by knowing the ‘‘content’’ of that

programming (App. B, p. 17a). This statement mis-

takenly assumes, however, that the ‘‘wisdom’’ or

“value’’ of contemporary songs can be judged by their

words alone. Quite the contrary, the words and

music of popular songs, like poetry, are an esthetic

whole, unifying thought and expression." Broad-

cast licensees must be able to select and broad-

east musie on the basis of its overall artistie qual-

0 Some stations have over 7,000 record albums in their libraries,

each playing 30 to 40 minutes (J.A. 43). Petitioner Yale Broad-

casting Company, with 5,000 albums, would need 2,500 hours just

to sereen them once (J.A. 70). Moreover, many stations receive

over 200 new albums each week (J.A. 70). Although petitioners

submitted these figures to the Court of Appeals below, the Court

did not diseuss them.

2166

A song, after all, is not a speech. Like any work of art, it

bounces back different meanings to different people at different

times, as life shines new light on it.’ P. Seeger, When the Mode

of the Music Changes, 1 (1971).

16

itv. The Court of Appeals has improperly forced

licensees to single out and inspect song lvries alone,

Without discussion, the opinion below has relegated

the nonverbal portion of contemporary music to an

inferior and less protected status. Whether a ‘pop-

ular song is a constitutionally protected form of

speech”? (Bazelon, C.J., App. A, p. 8a), however, is

a question of substantial importance, and should be re-

solved in the first instance by this Court.

The opinion below also miseconstrues the seri-

ousness of the burden entailed in ascertaining the

meaning and content of contemporary song lyrics,

In many instances the lyrics are difficult to hear (J.A.

107-12). Musie may drown out entire words and

phrases. The lyrics are often chimerical, ambiguous

and difficult to understand. Experienced announcers

may require hours to decipher the words of one song

(J.A. 107-14). Mistakes of interpretation or unjusti-

fied doubts may induce licensees to remove ambiguous

but musically important songs.” In short, as Chief

Justice (then Judge) Burger has observed, a require-

ment that licensees ascertain the content of program-

ming ‘‘ ‘i simply a euphemism for censorship. It is

an attempt to shift the onus of action against speech

from the Commission to the broadeaster, but it seeks

the same result—suppression of certain views and

arguments.’ ’? Anti-Defamation League of B'nai

B'rith v. FCC, 403 F.2d 169, 172 (D.C. Cir. 1968),

cert. denied, 394 U.S. 930 (1969).

*2 Licensees, for example, have banned the Beatles’ satire on

American violence, ‘‘ Happiness is a Warm Gun,’’ fearing it might

advocate the ‘‘injection of heroin’’ (J.A. 110-11). Many ex-

perienced announcers have attested that they cannot tell conclu-

sively what many song lyries signify, or whether a_ particular

message ‘‘promotes or glorifies’’ illegal drugs (J.A. 76-78, 86-87,

109-110, 114, 180-93).

17

I. THE DECISION BELOW IS IN CONFLICT WITH AN

IMPORTANT DECISION OF THE SECOND CIRCUIT

The opinion below upheld the Commission’s refusal

to issue a declaratory order on the acceptability of

Yale Broadeasting Company’s proposed ‘* Policy”’ for

compliance with the Commission’s song lyrics state-

ments. In so doing, it failed to acknowledge a con-

flicting decision from the Second Circuit, ignored the

legislative history to Section 5(d) of the Administra-

tive Procedure Act, 5 U.S.C. §554(e) (1970), and

foreed Yale into an untenable dilemma—cither aban-

don its proposed programming ‘ Policy,’’ or risk the

loss of its license at renewal. This Court should re-

solve the conflict among the Circuits concerning the

extent to which administrative agencies can refuse to

issue declaratory orders eliminating uncertainty in

the First Amendment area.

Section 5(d) of the Administrative Procedure Act

provides that an administrative agency, ‘tin its sound

discretion, may issue a declaratory order to terminate

a controversy or remove uncertainty’? (emphasis sup-

plied). Section 1.2 of the Commission’s Rules, 47

C.F.R. § 1.2 (1972), authorizes the Commission to issue

“declaratory rulings”? pursuant to Section 5(d).

Relying on Sections 5(d) and 1.2, Yale Broadeasting

Company asked the Commission to issue a declaratory

order stating whether its proposed ‘ Policy”’ for broad-

casting records complied with the Commission’s prior

statements. Yale’s ‘*Policy’’ (see App. C, p. 30a)

assumes @ priori that some records aired on the station

will inevitably contain words or lyries with possible

drug connotations.” Instead of instructing its an-

“It is difficult to imagine a popular song without some words

that could not be stretched into drug references. In 1932, people

18

nouncers to review and possibly remove such records

from the air, Yale proposed to broadeast separate anti-

drug messages in the nature of public service and news

announcements. Yale hoped to ameliorate the prob-

lems of drug abuse without reviewing the lyries of

individual songs.

The Commission refused to issue a deelaratory

ruling, finding it ‘‘preferable to avoid unnecessary

rulings”? in a ‘“‘delicate’’ area ‘‘not fleshed out by the

licensee’s actual operation’? (App. C, p. 28a). The

Court of Appeals affirmed, stating that ‘‘eritieal facts”

were missing from Yale’s request, that ‘‘subsequent

events’? might alter them, and that no ‘‘clear abuse of

discretion’? was found in the denial of Yale’s request.*

The Court’s opinion below is in direct conflict with a

recent decision of the Second Cireuit. In New York

State Broadcasters Ass’n v. United States, 414 F.2d

990 (2d Cir. 1969), cert. denied, 396 U.S. 1061 (1970).

several broadeasters asked the Commission, pur-

suant to Section 5(d), to issue a deelaratory rul-

ing stating whether a list of proposed programs

would violate the broadeast ban on information con-

cerning ‘‘lotteries.’’ ** The Commission refused to rule

on some of the proposals, stating it was ‘‘clearly not

sang: ‘‘Every kiss, every hug seems to act just like a drug.

You're getting to be a habit with me... . I’m addicted to your

charms.’’? In 1934 Cole Porter wrote: ‘‘Some they may go for

cocaine, I’m sure that if IT took even one sniff, it would bore

me terrifically, too. I get a kick out of you.’* Many contem-

porary songs extoll ‘‘legal’’ drugs such as alcohol and_ nicotine

(see App. C, p. 48a).

’

24 Because Yale’s ‘‘Policy’’ only proposed to adopt operating

procedures, there were no ‘‘critieal facts’’ or ‘subsequent events”

that might have affected its implementation.

25 See 18 U.S.C. § 1804 (1970) (Communications Act).

19

practical to attempt to rule on all of the various mate-

rials submitted by the parties in the absence of a par-

ticular factual situation.”’

The Second Circuit reversed. It ordered the Com-

mission to rule on all of petitioners’ proposals:

‘Petitioners complain about the order’s lack of

specificity as well as the Commission’s failure to

rule on a number of the requests made to it.... We

think these concerns are to some extent justified.

There have apparently never been any prosecutions

for violations of Section 1304 [‘lotteries’], and

we find no other judicial opinions explicitly inter-

preting the ‘information concerning’ language of

the statute. In view of this, and because of the

great interest broadcasters have in not jeopardiz-

ing their licenses, we believe that the proper course

is to set aside the Commission’s declaratory ruling

to allow it to reconsider petitioner’s request in

light of this opinion.”? Jd. at 997-98 (emphasis

supplied).

The controlling facts in the Second Cireuit’s opinion

are virtually identical to those in the Court’s opinion

below. In each ease the Commission’s rulings lacked

specificity and had generated substantial confusion.”

Here, as in New York State Broadcastcrs, the Commis-

‘ion had issued no complaints, license revoeations or

other adjudicatory rulings containing guidelines for

compliance with its orders. Like the petitioners in

New York State Broadcasters, Yale Broadeasting Com-

——_—_

*The Commission itself commented that its first Notice was

“widely’’ and ‘‘erroneously depicted’? in the press (App. D, pp.

33a-34a). The Commissioners themselves could not agree on the

meaning of their actions and issued numerous concurring and

lissenting opinions. The detailed evidentiary materials submitted

\y petitioners document this confusion (J.A. 69-204, 333-46).

20

pany expressly asked the Commission for a declaratory

order to avoid ‘jeopardizing’? its license at renewal,

In both eases the Commission’s refusal to rule left a

residual chill on protected speech.

The District of Columbia and Second Cireuits have

split over the proper standard for reviewing an

agency’s refusal to clarify its policies in the First

Amendment area.” The Second Cireuit will not defer

to Commission discretion where the Commission itself

has eaused uncertainty, lacks guiding precedents, and

suggests that improper conduct might cost the broad-

‘aster its license. Under identical circumstances, the

District of Columbia Circuit will defer to any ageney

action short of a ‘‘clear abuse of discretion’’ (App. B,

p. 25). The Second Circuit, in short, has construed

‘‘sound diseretion’’ under Section 5(d) to hold the

Commission to a higher standard of judicial review,

and a greater burden of proof, where its licensees’ First

Amendment rights are involved.

It also seems apparent that the Court’s opinion below

conflicts with Congressional intent in enacting Section

5(d). Legislative history demonstrates that Congress

intended to give persons a right to obtain declaratory

27 This conflict is aggravated by the fact that three older

Circuit Court rulings suggest that an ageney’s refusal to issue a

declaratory ruling is completely diseretionary and unreviewable

altogether. See W. J. Dillner Transfer Co. v. McAndrew, 226

F. Supp. 860 (W.D. Pa. 1963), aff’d, 328 F.2d 601 (3rd Cir.

1964) (per curiam); Continental Oil Co. v. FPC, 285 F.2d 527

(Sth Cir. 1961); United Gas Pipeline Co. v. FPC, 203 F.2d 7

(Sth Cir. 1953). These cases, however, did not involve First

Amendment issues, and seem clearly incorrect in light of clear

legislative history. See, ¢.g., Senate Judiciary Committee, Commit:

tee Print, Sen. Doe. No. 248, 79th Cong., 2d Sess. p. 25 (1946), and

discussion infra.

21

relief from administrative agencies to determine the

consequences of their proposed action, ‘‘without the

necessity of any party’s acting at his peril upon his own

view ....’’?* While Congress evidently envisioned

some agency discretion, it required that this discretion

be “sound”? and reviewable in the federal courts.”

The issuance of administrative declaratory orders were

to be governed by the same principles that governed

the issuance of declaratory judgments in the courts.””

The scope of permissible diseretion was to turn on the

facts of each individual ease. By withholding a ruling

on Yale’s proposed ‘*Policy”’ in the instant case, the

Court below has deprived petitioners of the guidance

anticipated by the drafters of Section 5(d) of the Ad-

ministrative Procedure Act.

The Court’s opinion also conflicts with First Amend-

ment principles underlying decisions of this Court.

Just as ordinary burdens of proof are shifted in First

Amendment areas, see Speiser v. Randall, 357 U.S. 513

(1958), and administrative procedures are adjusted to

accommodate important speech interests, see Freedman

v. Maryland, 380 U.S. 51 (1965), so, here, the ordinary

scope of agency discretion must reflect the First

Amendment rights of licensees regulated by an admin-

istrative agency. Where economic interests are in-

volved, of course, a reviewing Court may be justified

in affirming agency action that falls short of a ‘‘elear

*S Administrative Procedures in Government Agencies, Report

of the Committee on Administrative Procedure, Sen. Doe. No. 8

Tith Cong., Ist Sess., p. 30 (1941).

°1T [he phrase ‘sound discretion’ means a reviewable dis-

rretion and will prevent agencies from either giving improvident

declaratory orders or arbitrarily withholding such orders in proper

cases.”’ (Senate Judiciary Committee, Committee Print, Sen. Doe.

No, 248, 79th Cong., 2d Sess., p. 25 (1946) (emphasis supplied).

See Committee Print, supra, at 204, 263, 362.

,

re

22

abuse of diseretion.”” But where First Amendment

interests are at stake, the standard of review must be

substantially narrower.” Non-judicial administrative

agencies must be given far less discretion to impinge

on protected First Amendment activities than the

Court has tolerated below.”

CONCLUSION

For the reasons stated above, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

RAMSEY CLARK

1775 K Street, N.W.

Washington, D.C. 20036

Tracy WESTEN

2005 L Street, N.W.

Washington, D.C. 20036

Eric SMITH

485 L’Enfant Plaza, S.W.

Of Counsel: Washington, D.C. 20024

PETER WESTEN Counsel for Petitioners

1775 K Street, N.W.

Washington, D.C. 20006

STERN CommuNiIty LAw Firu

2005 L Street, N.W.

Washington, D.C. 20036

May 4, 1973

31 Cf, United States v. Carolene Products Co., 304 U.S. 14,

152 note 4 (1938).

32 Some commentators have further argued that the First Amend-

ment requires the courts to provide applicants with declaratory

judgments whenever they are uncertain whether their proposed

speech activities involve protected or unprotected speech. See

HI. Monaghan, First Amendment ** Due Process,’’ 83 Harv. L. Rev.

518 (1970). Whatever the force of this argument, Congress has

already provided for such declaratory relief before administrative

agencies under Section 5(d) of the Administrative Procedure Act.