Petition for Writ of Certiorari — Polish American Congress v. Federal Communications Commission

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tI PREME COURT, u. 6 ‘ee oe eR

OCT 20 1975

IN THE

Supreme Court of the Gui

OcTOBER TERM, 1975.

No. @5-598 {

A OVA \, t CLE

MICHAEL ROUAK JR, Cl PK

:

POLISH AMERICAN CONGRESS anpD

THADDEUS L. KOWALSKI, :

Petitioners, F

vs. ;

FEDERAL COMMUNICATIONS COMMISSION anpD "

UNITED STATES OF AMERICA,

Respondents,

AMERICAN BROADCASTING COMPANIES, INC.,

Intervenor.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

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— Se EER SRR ET OS Or Se :

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icy TAIT pee Chee st beeas Se fee Se Pah wi I aS IS Ci et eas at re -

wie AE (eal 7 RETO ELE aA RES clap Ne ii SRA I I am : ‘

EDMUND A. GODULA

DoMINIK, KNECHTEL, GODULA

& DEMEUR

20 North Wacker Drive

: Chicago, Illinois 60606

A 312/726-5344

: THADDEUS L. KOWALSKI

120 South LaSalle Street

Chicago, Illinois 60603

312/332-6182

Attorneys for Petitioner

EPPA AGL G SPIEL LEDS DOLE IIR NG AE ENIO LOL LALO LEE BEL DE LEED.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

INDEX

PAGE

oF BVT TEP EEE TT Le Se LET 1

PMP ETT TEV ETT ETE TITTLE TTT 2

CORI an soon hn cco ck ncan es 4550se eens 3

Statute and Regulation Involved .................+.. 3

Pembaaamt GE GD CGD kk a oo eh cea tee ccedoeccacs oF

Reasons for Granting the Writ ............2-.020008- 5

I. The Jokes in and of Themselves Create the Con-

UN sv aiecs covets hsnetnvaccccnveccess 5

II. The Public Interest Obligation of the Statute

Further Requires That Petitioners Be Granted an

Opportunity to Respond ...............45. 7

TABLE OF AUTHORITIES

Case

Banzhoff v. FCC, 405 F.2d 1082 (1968) ............ 8

Brown et al. v. Board of Education of Topeka, 347 U.S.

eh ee eee ree Pe era ys Teor Tere ere Pere 8,9

Cigarette Advertising Case, 9 FCC 2d, 921 (1967) ..... 8

Red Lion Broadcasting Co., Inc. et al. v. FCC, 395 U.S.

PT ook 4b ba aS VAAN CON 26S HERE OS Saree w RO 4S 7

Tobacco Institute v. FCC, 396 U.S. 842 .............. 8

Statute

Title 47 USC § 315(a) ........ ee ee ee eee 3, 5

Regulation

Tits 47 CBR. § T3083 oa isk swe cswcasecensaseves 3

Supreme Court of the United States

OCTOBER TERM, 1975.

POLISH AMERICAN CONGRESS AnD

THADDEUS L. KOWALSKI],

Petitioners,

vs.

FEDERAL COMMUNICATIONS COMMISSION AnD

UNITED STATES OF AMERICA,

Respondents,

AMERICAN BROADCASTING COMPANIES, INC.,

Intervenor.

PETITION FOR WRIT OF CERTIORARI TO THE ;

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

Petitioners, Polish American Congress and Thaddeus L.

Kowalski, respectfully pray that a writ of certiorari issue to

review judgment entered on July 23, 1975 by the United States

Court of Appeals for the Seventh Circuit in its Cause No. 74-

1412. :

OPINIONS BELOW

The opinion of the Seventh Circuit Court of Appeals is

reprinted in the appendix at pages Al-14. The opinion of }

the Commission’s Broadcast Bureau denied Petitioners’ com-

Oe en ee eee ee ee ee ee a

2

plaint as reprinted in the appendix at pages A15-18; and the

opinion following a full review by the Commission is reprinted

in the appendix at pages A19-21 and appears at 46 FCC 2d 124

(1974).

JURISDICTION

The judgment of the Court of Appeals for the Seventh Cir-

cuit was made and entered on July 23, 1975. The jurisdiction

of this Court is invoked under 28 USC Sec. 1254(1).

QUESTIONS

1. Does not the mere recitation of “Polish jokes”, neces-

sarily result in assuming an unequivocal position which simul-

taneously creates a controversial issue, in view of the large

audience and in view of the constant characterizations which

identify “such jokes”?

2. Does an intention to amuse or a humorous context pre-

vent recourse to the Fairness Doctrine when the humor, with-

out exception, assumes a position that Poles are inferior,

moronic, non-hygienic and loathsome, and there is a contrary

position which should be presented in the public interest?

3. Does not the public interest aspect of the Fairness Doc-

- trine require presentations of contrary views for balanced pro-

gramming when Polish jokes are broadcast, and there is no

controversy that such Polish jokes uniformly attack a large

segment of the American population, in a unique and particu-

larly vile manner?

4. Does not the public interest require an opportunity to

present a contrary point of view in fairness to Polish American

children who are particularly susceptible to one sided views

which group them as vile members of our citizenry, a condem-

nation which far exceeds “poking fun at them”?

5. Can the personal attack corollary of the Fairness Doc-

trine be properly construed to view mere recitations of Polish

ae

3

jokes as the presentation of a controversial issue of public

importance?

6. Is it not reasonable to declare that the mere recitation of

Polish jokes constitutes a personal attack within the Fairness

Doctrine since, at least, significant numbers of the attacked

persons, which comprise a significant percentage of the popula-

tion, are expected to take a position contrary to the attacks,

thus inherently creating a controversial issue of public impor-

tance?

STATUTE AND REGULATION INVOLVED

Title 47 USC Sec. 315, reading in pertinent part:

“(a) If any licensee shall permit any person who is a

legally qualified candidate for any public office to use

a broadcasting station, he shall afford equal opportunities

to all other such candidates for that office in the use of

such broadcasting station. . .

Nothing in the foregoing sentence shall be construed as

relieving broadcasters, in connection with the presenta-

tion of newscasts, news interviews, news documentaries, |

and on-the-spot coverage of news events, from the obli- |

gation imposed upon them under this chapter to operate |

|

|

in the public interest and to afford reasonable opportunity

for the discussion of conflicting views on issues of public

importance.”

Title 47 C.F.R. Sec. 73.123 Personal Attacks: Political Edi-

torials, in pertinent part:

“(a) When, during the presentation of view on a con-

troversial issue of public importance, an attack is made

upon the honesty, character, integrity or like personal

qualities of an identified person or group, the licensee

shall, within a reasonable time and in no event later than

one week after the attack, transmit to the person or group

attacked (1) notification of the date, time and identifica-

tion of the broadcast; (2) a script or tape (or an accurate

summary if a script or tape is not available) of the attack;

and (3) an offer of a reasonable opportunity to respond

over the licensee’s facilities.”

oN PC Senna BY Meda RR RR A I, “vee

STATEMENT OF THE CASE

Petitioners filed a complaint on June 28, 1973 before the

Commission alleging that ABC violated the Commission’s per-

sonal attack regulation during the August 10, 1972 broadcast

of the Dick Cavett Show by demeaning attacks against the

Polish American group.

A Federal Communications Commission staff decision of

September 26, 1973 stated that publishing “Polish jokes” is not

a controversial issue of public importance; and that such jokes

do not constitute a personal attack against the group because

the Commission Regulations require that a personal attack must

go to the integrity, character, honesty or like personal qualities.

The Commission adopted a memorandum, opinion and order

on March 28, 1974 which affirmed the Bureau’s ruling, follow-

ing a request for a full hearing by the Petitioners. Such full

Commission memorandum, opinion and order stated a Com-

mission cannot promulgate any regulation to interfere with the

freed.» of expression by broadcasting; that ABC was not

unreasonable in concluding that the broadcast of the jokes and

attendant remarks did not constitute a discussion of a contro-

versy of public importance; and that the personal attack rule

must be predicated upon an attack upon those personal qualities

bearing on the moral rectitude or personal credibility of a

named individual or group.

Petitioners appealed to the Seventh Circuit Court of Appeals

under Title 28 USC § 2342, and on July 23, 1975 the Seventh

Circuit affirmed the memorandum, opinion and order of the

Commission. The decision of the Seventh Circuit said Peti-

tioners did not discharge the burden of showing that the recita-

tion of these Polish jokes constituted a presentation of views on

a controversial issue of public importance.

REASONS FGR GRANTING THE WRIT

L The Jokes in and of Themselves Create the Controversy

Section 315(a) of Title 47 imposes an obligation upon

broadcasters to operate in the public interest and to afford

reasonable opportunity for the discussion of conflicting views

On issues of public importance. This section of the statute

recites the basis for what has become to be known as the

“Fairness Doctrine”, and the Commission has adopted the per-

sonal attack corollary as set out in the appendix.

The Seventh Circuit Court of Appeals has denied Petitioners

an opportunity to present an opposing point of view by severely

and unreasonably contracting the meaning of the personal at-

tack rule and ignoring the “public interest” mandate of the

statute which should be reasonably construed to afford the re-

lief requested.

It is the position of Petitioners that the mere recitation of

Polish jokes by the broadcaster is a one-sided view of an issue

of public importance in each and every instance that the

Polish joke is broadcast. The mere recitation of these vile, de-

meaning stories creates a controversial issue by its very nature;

and the mere recitation further assumes a point of view.

The position of the Seventh Circuit Court of Appeals is that

Petitioners are not entitled to an opportunity to respond unless

such an attack is made during a discussion of a controversial

issue which, the Court suggested, might be a discussion whether

Polish Americans are truly inferior, moronic, non-hygienic,

and the possessors of “like personal qualities”. Such a rigidly

structured position violates the remedial purpose pursued by

the statute and by the Commission’s own Regulations.

The mere recitation of a Polish joke is controversial, and to

deny same is to be totally unrealistic. The mere recitation of the

Polish joke is of public importance, and to deny same is like-

iliac

6

wise to be unrealistic. Neither the Commission nor the Seventh

Circuit Court of Appeals has denied or taken issue with Peti-

tioners’ basic argument that each and every Polish joke, without

a single exception, cites at least one of the following traits:

(1) vile manners, habits or customs

(2) abject stupidity

(3) animal or moronic traits

(4) vulgar actions and dress

See also the summary of the broadc: ° jokes in the appendix

at page A22.

Such uniform characterization of the Polish joke does not

permit respondents to hide behind a plea that they only in-

tended to amuse, or that no attack was intended. Dealing

such attacks behind a pretense of humor does nothing to blunt

the injury nor to belittle the attacked group before audiences.

The Seventh Circuit Court of Appeals said that Petitioners

failed to show that the attacks occurred during the discussion

of a controversial issue, but ignored Petitioners’ arguments

that reason, logic and experience compel the view that the mere

recitation of the Polish jokes is the presentation of one view on

a controversial subject which is of major importance. The

invariable attack of each and every Polish joke cannot be ignored,

and the fact that upwards of 10 million Polish Americans are

attacked by the presentation of each and every joke.

Can an attack occurring during the discussion of a con-

troversy of public importance occur only in a predetermined

context where participants must discuss whether Poles have

vile manners, are abjectly stupid, have animal or moronic

traits, or exhibit vulgar actions and expression? Petitioners

assert that there is no present situation in which a controversial

issue of public importance is presented. Neither the Commis-

sion nor the Seventh Circuit Court of Appeals have denied that

the Polish joke is an attack. If so, why cannot this attack be

deemed controversial since the broadcaster publishes it, and

7

then an important segment objects to the characterization of

the published joke? Why cannot the mere recitation of this

joke be deemed an issue of public importance since up to

about 10% of the American population are characterized in

the most unequivocal and demeaning terms? The Polish joke

is unique and certain in each and every instance it is broad-

cast, therefore, Petitioners submit that it is correct and well

within the meaning of the statute that mere recitation of such

Polish jokes constitute an attack which is both controversial and

of public importance. As long as such occurs, it is mere for-

malism to demand that such occur in a particular sequence,

that is, first a serious discussion, then placing in issue the in-

telligence and personal habits of Poles, and finally attackiag the

Poles.

This Court has affirmed the personal attack regulation in

Red Lion Broadcasting Co., Inc. et al. v. FCC, 395 U.S. 380.

Petitioners now ask this Court to bring up the record so that

the substance of this statute and the regulation may be pro-

tected against attempts to debilitate them with formalistic dis-

tinctions.

II. The Public Interest Obligation of the Statute Further

Requires That Petitioners Be Granted an Opportunity to

Respond

Petitioners asked the Seventh Circuit Court of Appeals to

afford them an opportunity to respond, irrespective of the per-

sonal attack corollary of the Fairness Doctrine. This request

was based on the Fairness Doctrine, that is, that balanced

programming imposes an obligation on the broadcaster to

present another view on a matter of public importance. Simply,

repeated broadcasting of Polish jokes, by their unique iden-

tification, comprise a one-sided representation that adversely

affects a substantial majority of the American population.

Neither Respondents nor Intervenor have ever attempted to

argue that broadcasting of Polish jokes is only an incidental or

rare occasion, consequently it is the Petitioners’ view that they

have been and are repeated activities, and such can be acknowl-

edged by this Court. Further, the record below will categorically

show a repeated dissemination of such jokes by broadcasters and

the widespread concern expressed by numerous citizens and

organizations, including those not associated with Polish culture

or organizational connections.

The Commission invoked this public interest provision in

the statute as applying to commercial announcements and ad-

vertisements in the Cigarette Advertising case, 9 FCC 2d 921

(1967), affirmed, Banzhoff v. FCC, 405 F.2d 1082 (1968),

cert. denied sub nom., Tobacco Institute v. FCC, 396 U.S.

842. The Commission recognized that cigarette smoking rep-

resented a unique situation and the Commission knew of no other

advertised product which would warrant a comparable ruling,

p. 943. The Commission and the Seventh Circuit Court of Ap-

peals, however, ignored the unique situation of the Polish joke

which always includes a characteristic attacking element. There

is nothing in the general field of humor, nor of ethnic humor,

which is comparable to the Polish joke that licensee ABC has

broadcasted. Can the Commission consistently find a unique situ-

ation in the Cigarette Advertising case to protect the health of

the public, but not find a unique situation in broadcasting Polish

jokes which adversely attack the mind and spirit of Polish

Americans? The record below will show evidence of such in-

jury, particularly to the Polish American children. A hearing

would have confirmed beyond any doubts that such a one sided

presentation results in an injury, but the Commission denied

such a hearing to Petitioners.

This Court properly rejected the formalism of the “separate

but equal” defense in the landmark case of Brown, ef al. v.

Board of Education of Topeka, Shawnee County, Kansas et al.,

347 U.S. 483 (1953):

9

“To separate them from others of similar age and qualifica-

tion solely because of their race generates a feeling of in-

feriority as to their status in the community that may affect

their hearts and minds in a way unlikely ever to be undone.”

(p. 494)

The public interest provision of the statute has been unrea-

sonably and incorrectly ignored by the Commission and the

Seventh Circuit Court of Appeals because both refuse to ac-

knowledge the truly unquestioned facts of injury to the most

vulnerable Polish American group, the children. If any doubt

as to such injury can be entertained, contrary to what Peti-

tioners showed in the record below and contrary to any modest

exercise of reasonableness, then such would be conclusively dis-

pelled by a hearing which the Commission refused to grant

Petitioners. This Court quoted approvingly the observations of

’

the Lower Kansas Court at p. 494 in the Brown et al. ;

case, supra:

“A sense of inferiority affects the motivation of the child ;

to learn.” é

The public interest provision of the statute should be correctly .

construed to allow Petitioners an opportunity to present a con- j

trary point of view to counter the one side presentation which,

unanswered, must lead to such a sense of inferiority. See also

the view of Dr. Robert A. Mendelsohn of The University of

Illinois School of Medicine in the appendix at pages A23-24.

radiata oi is tine aaa) a ”

CONCLUSION

The writ should issue to the Seventh Circuit Court of Appeals

which unreasonably denied invocation of the personal attack

corollary of the Fairness Doctrine on the basis that mere re-

citation of the Polish joke is not a presentation of a controversial

view of public importance. Such writ should likewise issue be-

cause the public interest obligation of the statute was not served

by refusing Petitioners the opportunity to present a contrary

SEP R TES SPO

10

point of view in response to a continuing series of one sided

views which uniformly attack and grossly demean Polish Ameri-

cans. Such attacks should not be afforded a sanctuary of humor.

Respectfully submitted,

EDMUND A. GODULA

DoMINIK, KNECHTEL, GODULA

& DEMEUR

20 North Wacker Drive

Chicago, Illinois 60606

312/726-5344

THADDEvUs L. KOWALSKI

120 South LaSalle Street

Chicago, Illinois 60603

312/332-6182

Attorneys for Petitioner

APPENDIX

PAGE

Opinion of Seventh Circuit Court of Appeals .......... Al

Opinion of Commission Broadcast Bureau ............ Al15

Opinion Oy Full Comimmionion ci. c i ccscccscvccess Al9

Polish Jokes Broadcast by ABC ...............0005. A22

Letter of Dr. Robert A. Mendelsohn ................. A23

Al

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 74-1412

PoLIsH AMERICAN CONGRESS and THADDEUS L. KOWALSKI,

Petitioners,

vs.

FEDERAL COMMUNICATIONS COMMISSION and

UNITED STATES OF AMERICA,

Respondents,

AMERICAN BROADCASTING COMPANIES, INC.,

Intervenor.

On Petition to Review an Order of the Federal

Communications Commission

Argued February 27, 1975—Decided July 23, 1975

Before HastinGs, Senior Circuit Judge, CUMMINGS and

STEVENS, Circuit Judges.

CUMMINGS, Circuit Judge. This petition asks us to set aside

an order of the Federal Communications Commission denying

the complaint of petitioners that American Broadcasting Com-

panies, Inc., (“ABC”) violated the Federal Communications

Commission’s fairness doctrine and personal attack rule by

refusing petitioners air-time to respond to an August 10, 1972,

broadcast of the Dick Cavett Show containing Polish jokes.

A2

During the program in question, comedian Bob Einstein,

masquerading as Gil Drabowski, president of an imaginary

Polish Anti-Defamation League, told four “Polish jokes,” all

denigrating the intellectual or motor skills or personal hygiene

standards of Poles. The show was hosted by comedian Steven

Allen. The setting was an interview of Einstein by Allen regard-

ing a fictitious lawsuit against the three television networks

brought by Drabowski on behalf of his organization, demand-

ing a public apology for Polish jokes told on the networks and

endeavoring to make sure that there would be no more Polish

jokes broadcast by the networks. Thereafter, in jest, Drabowski

gave the four objectionable jokes assailed by petitioners, as

examples of those shown by the networks for which his organiza-

tion thought an apology was required.’ As a result of a protest

by petitioners and others, on the following evening, Steven Allen

explained that Einstein’s comedy sketch involving Polish jokes

was intended to amuse “just as the ‘All in the Family’ show, which

is the No. 1 show in the country, intends to amuse when it does

jokes about the Polish, Italians, and every group in the world.”

Allen then stated that he, Bob Einstein and ABC apologized to

those who were offended. Although Allen indicated that he had

invited a spokesman for a protesting Polish American organiza-

tion to “speak his piece” during the August 11th show, no

such spokesman appeared.

On October 4, 1972, petitioners wrote ABC requesting

“equal time” to reply “under Federal Communications Commis-

sion Regulations” to the August 10th telecast. ABC replied as

follows on October 31st:

“We are sorry that anything said or done by either Steve

Allen or Bob Einstein offended you. The following evening

Steve Allen apologized on behalf of himself, Mr. Einstein

and the ABC Television Network.

S ier “Billy,” a member of the ABC orchestra, and

Allen retold Einstein’s fourth joke by making it applicable to Ger-

mans and Poles. After the ensuing laughter, Einstein left the stage

and Allen “fired” Billy.

WA rt OE Dea

A3

“No harm or malice towards Polish-Americans was in-

tended and we are most sincerely regretful that you were

hurt or offended.

“For your information, ‘equal time’ under Section 315

of the Communications Act is limited in scope to candi-

dates for public office and, accordingly, we respectfully

decline your ‘equal time’ request.”

Eight months thereafter, petitioners filed a complaint with

the Commission, requesting it to rule under the personal attack

rule of the fairness doctrine and under the fairness doctrine

itself that petitioners were entitled to equal time or a reason-

able opportunity to respond free of charge on the ABC network

“to the personal attacks on the character, intelligence, hygiene

or appearance of members of the Polish American community,

| an identifiable group,” on the August 10th telecast. The com-

plaint contended that demeaning and defamatory attacks in

the guise of ethnic humor constituted a controversial issue of

| public importance “because such programming represents a

single, warped and negative point of view which has an

enormous influence on the viewing audience.”

On September 26, 1973, the Commision’s Broadcast Bureau

denied petitioners’ complaint, noting at the outset that Section

326 of the Federal Communications Act (47 U.S.C. § 326)

prohibits the Commission from censoring broadcast material.?

Under the fairness doctrine, the Broadcast Bureau acknowledged

that if a station presents one side of a controversial issue of

public importance, it is required to afford reasonable opportun-

ity for the presentation of contrasting views. The Bureau’s

ruling further stated:

2. Section 326 of the Federal Communications Act provides:

“Nothing in this chapter shall be understood or construed to

give the Commission the power of censorship over the radio

communications or signals transmitted by any radio station,

and no regulation or condition shall be promulgated or fixed

by the Commission which shall interfere with the right of free

speech by means of radio communication.”

Ss GORGE Aina ant occ eae

A4

“It is the responsibility of the broadcast licensee to deter-

mine whether a controversial issue of public importance

has been presented and, if so, how best to present con-

trasting views on the issue. The Commission will review

complaints to determine whether the licensee can be said

to have acted reasonably and in good faith.

“In support of your contention that the broadcast of

Polish jokes constitutes a controversial issue of public

importance, you state that the jokes ‘belittle a large seg-

ment of the population’ by perpetuating a ‘dumb Polack

image.’ However, you have not shown that there is any

controversy in this country concerning the intelligence

or other qualities of Polish Americans. [Footnote omitted.]

Accordingly, we are unable to find from the evidence

presently before us that ABC was unreasonable in con-

cluding that the broadcast of the jokes and attendant

remarks did not constitute the discussion of a controversy

of public importance.

* * * * *

“Since we have determined that the network was not

unreasonable in concluding that no controversial issue of

public importance was involved, the broadcast of the Polish

jokes could not constitute, under the Commission’s rules,

a personal attack. In order for the personal attack rule

to be applicable, the attack must occur during the discus-

sion of a controversial issue of public importance. Section

73.123(a) of the Commission’s Rules and Regulations.

Even had a controversial issue of public importance been

involved here, it does not appear that these jokes and

attendant remarks could have constituted a personal attack

under the Commission’s rules. The statement of a particular

view, however strongly or forcefully made, does not neces-

sarily constitute a personal attack. The Port of New York

Authority, 25 FCC 2d 417 (1970). To qualify under

the Commission’s rule, the attack must reflect upon the

‘honesty, character, integrity or like personal qualities’

of a person or group and not merely reflect upon ability,

knowledge or like intellectual or motor skills.”

Subsequently, the petitioners applied to the full Commission

for a review of the Broadcast Bureau’s ruling. The application

AS

‘ was denied. 46 F.C.C.2d 124 (1974). Again the Commission

| reminded petitioners that Section 326 of the Act prohibits it

from interfering with broadcasters’ rights of free speech. After

expressing its approval of the Broadcast Bureau’s ruling that

no controversial issue of public importance had been shown,

the Commission echoed the Bureau’s alternate rationale that

the personal attack rule only applies where an attack is made

“upon the honesty, character, integrity or like personal qualities

of an identified person or group.” Even assuming that a con-

troversial issue of public importance had been involved, the

Commission held that the personal attack rule does not apply

to these jokes because there was no “attack on those personal

qualities bearing on the moral rectitude or personal credibility

of the named individual or group,” citing Rome Hospital and

Murphy Memorial Hospital, 40 F.C.C. 2d 452, 453 (1973).

This petition for review followed.

Fairness Doctrine and Personal Attack Rule

The fairness doctrine evolved by the Commission requires

a broadcaster to devote a reasonable percentage of broadcasts

to the coverage of public issues, and that coverage must provide

an opportunity for the presentation of contrasting points of

view. See In Re the Handling of Public Issues Under the

Fairness Doctrine and the Public Interest Standards of the

Communications Act, 48 F.C.C.2d 1, 7 (1974). In 19: the

fairness doctrine was recognized in an amendment to 47 U 3.C.

§ 315(a).* As stated by the Supreme Court, under the fairness

3. Section 315(a) of the Act provides in part:

“Nothing in the foregoing sentence [dealing with equal oppor-

tunity for appearances by legally qualified candidates for pub-

\ lic office on broadcasting stations] shall be construed as reliev-

ing broadcasters, in connection with the presentation of news-

| casts, news interviews, news documentaries, and on-the-spot

coverage of news events, from the obligation imposed upon

them under this chapter to operate in the public interest and

to afford reasonable opportunity for the discussion of con-

flicting views on issues of public importance” (47 U.S.C.

§ 315(a)). See Red Lion Broadcasting Co. v. Federal Com-

munications Commission, 395 U.S. 367, 380-383.

A

A6

doctrine “The broadcaster must give adequate coverage to

public issues [citation omitted] and coverage must be fair in

that it accurately reflects the opposing views.” Red Lion Broad-

casting Co. Vv. Federal Communications Commission, 395 U.S.

367, 377; see also Columbia Broadcasting System v. Demo-

cratic National Committee, 412 U.S. 94, 111; Democratic Na-

tional Committee v. Federal Communications Commission, 460

F.2d 891, 899 (D.C, Cir. 1972), certiorari denied, 409 U.S.

843; In Re Obligations of Broadcast Licensees Under the Fair-

ness Doctrine, 23 F.C.C.2d 27, 28 (1970).

The rule on personal attacks, like that on political editorials,

is a Commission rule setting out an aspect of the fairness doc-

trine. See Red Lion, supra, at 383-386. The personal attack

rule’s application is specifically confined to a situation where the

attack occurs “during the presentation of views on a controver-

sial issue of public importance.”* The confinement of the rule’s

application to “controversial issues of public importance” par-

allels an identical limitation on the application of the more

general fairness doctrine. See Columbia Broadcasting System,

4. The personal attack facet of the fairness doctrine was in-

corporated into a rule in 1967 and provides in pertinent part:

“(a) When, during the presentation of views on a con-

troversial issue of public importance, an attack is made upon

the honesty, character, integrity or like personal qualities of an

identified person or group, the licensee shall, within a reason-

able time and in no event later than one week after the attack,

transmit to the person or group attacked (1) notification of the

date, time and identification of the broadcast; (2) a script or

tape (or an accurate summary if a script or tape is not avail-

able) of the attack; and (3) an offer of a reasonable opportun-

ity to respond over the licensee’s facilities.” 47 C.F.R. § 73.679

(1974). See 47 C.F.R. §§ 73.123, 73.300 and 73.598 (all

identical to § 73.679).

The obligations upon the broadcaster under the personal attack

rule differ from those imposed by the general fairness doctrine in

that under the former “the broadcaster does not have the option of

presenting the attacked party’s side himself or choosing a third

party to present that side.” Red Lion, supra, at 378. The attacked

party himself must be given an opportunity to respond. See Demo-

cratic National Committee, supra, at 902.

A7

‘ supra, at 111-112; Healey v. Federal Communications Commis-

sion, 460 F.2d 917, 920, 922 (D.C. Cir. 1972); Democratic

National Committee, supra, at 900-901; Green v. Federal Com-

munications Commission, 447 F.2d 323, 327, 329 (D.C. Cir.

1971); Obligations of Broadcast Licensees, supra, at 28;

Loevinger, “Free Speech, Fairness and Fiduciary Duty in

Broadcasting,” 34 Law and Contemp. Prob. 278, 285 (1969).

Therefore, in order for petitioners to establish the right to a reply

under either the general fairness doctrine or the particular

personal attack rule, they must show that views on a contro-

versial issue of public importance were set forth in the assailed

broadcast.

This Court cannot make a de novo determination whether

one side of a controversial issue of public importance was

presented by the skit on the August 10th Dick Cavett Show.

The licensee, in applying the fairness doctrine, is required to

make reasonable judgments in good faith on the facts before it.

Thus while petitioners are of course correct about the poor taste

of the jokes in question, under the fairness doctrine and the

personal attack rule, the Commission's order must be upheld if

the Commission properly determined that ABC’s conclusion that

the broadcast did not involve a controversial issue of public

importance was not unreasonable nor in bad faith. See Columbia

Broadcasting Systems, supra, at 118-119, 124, 127, 131; Demo-

cratic National Committee, supra, at 900-903; Larus & Brother

Co. Vv. Federal Communications Commission, 447 F.2d 876, 879

(4th Cir. 1971); Green v, Federal Communications Commis-

sion, supra, at 329-330; Neckritz v. Federal Communications

Commission, 446 F.2d 501, 502 (9th Cir. 1971); In Re Appili-

cability of the Fairness Doctrine in the Handling of Controversial

Issues of Public Importance, 40 F.C.C. 598, 599 ( 1964).

Had petitioners successfully established before the Commission

that the challenged segment of the broadcast constituted the pres-

entation of views on a controversial issue of public importance,

they would then be required to demonstrate that ABC’s overall

A8

approach to the subject was unbalanced. See, e¢.g., Democratic

National Committee, supra, at 902-903. Since the Commission

upheld ABC’s determination that no statement on a controversial

issue of public importance occurred, our inquiry is limited to

whether petitioners have made the necessary threshold showing

that ABC’s determination that the August 10th program did not

involve a discussion of a controversial issue of public importance

was either unreasonable or in bad faith. We hold they have not.°

The Commission's Determination that ABC Acted

Reasonably and in Good Faith

In the present case, ABC decided that the Polish joke material

contained in the August 10th Dick Cavett Show did not present

a controversial issue of public importance. Thus in its opposition

to the application for review before the full Commission, ABC

formally contended that the comedy skit on the August 10th

show did not represent a discussion of a controversial issue of

public importance. The Commission concluded that ABC acted

reasonably and in good faith in making this determination

because petitioners had not shown there was any controversy in

this country concerning the intelligence or other qualities of

Polish Americans. Even petitioners recognize “that broadcasters

have discretion in deciding whether a controversial issue of

public importance exists and their latitude may be wide” (Reply

Br. at 6). Neither the Commission nor we should encroach upon

this determination by ABC in the absence of an abuse of its

discretion. Democratic National Committee, supra, at 906.

Petitioners do not assert that ABC lacked good faith. Thus the

thrust of their argument is that the network’s determination

that there was no discussion of a controversial issue of public

importance in the August 10th Polish joke skit was unreasonable.

5. Because of this holding, we need not review the Commission’s

alternate ruling under the personal attack rule that the jokes did not

constitute an attack “upon the honesty, character, integrity or like

rsonal qualities of an identified person or group” within the mean-

ing of that rule.

A9

In order to invoke the fairness doctrine, a petitioner must

first define the issue which it maintains is a controversial one of

public importance. Green v. Federal Communications Commis-

sion, supra, at 329. In the complaint and application for review

before the Commission, in the briefs here, and at oral argument

we searched in vain for petitioners’ statement of the issue.

We have found no clear statement of a question that could serve

as an issue around which an important public controversy could

form. In petitioners’ letter to ABC, they simply requested “equal

time” to reply to the August 10th show wherein Steve Allen and

Bob Einstein allegedly “defamed Polish Americans.” In the

July 2, 1973, complaint to the Commission, the attempts to state

the issue were as follows:

“Under the Fairness Doctrine, the broadcasting of personal

attacks, the depiction of Polish persons or culture in a

demeaning manner, the broadcasting of ethnic ‘humor’ that

is insulting to the intelligence, character, hygiene, or appear-

ance of these persons is a controversial issue of public

importance because such programming represents a single

warped and negative point of view which has an enormous

influence on the viewing audience. The televising of so-

called ‘Polack jokes’ is per se a controversial issue of public

importance, harmful and insulting to a considerable segment

of the American population.

* * + * *

“The Federal Communications Commission is therefore

requested to rule that the ‘Polack jokes’ on the Dick Cavett

Show, hosted by Steve Allen, on August 10 and 11, 1972

constitute a controversial issue of public importance because

such jokes in and of themselves belittle a large segment of

the population, both young and adult.”

After the Bureau’s ruling that there was no discussion of a

controversial issue of public importance on the August 10th

show, the application for review before the full Commission was

filed, containing these statements about the issue:

“The Staff action supported the view of the licensee that

promulgating such humor [Polish jokes] is not a contro-

SN eee

A10

versial issue of public importance, and that complainants

did not present evidence that the issue in such a controversy

of public importance.

* * * * *

“The group attacked is large, in excess of ten million Polish

Americans. The issue is one of public importance as a

result of mere numbers alone. It is controversial because the

unanswered ‘Polack joke’ does, tends to, or is likely to

belittle the Polish American in our society.”

Reading the pleadings before the Commission leniently, two

possible issues are suggested by these excerpts: (1) whether

Poles or Polish Americans are inferior to other human beings in

terms of intelligence, personal hygiene, etc.; or (2) whether

“promulgating” Polish jokes by broadcasting them (if promul-

gation can be inferred from mere broadcasting) is desirable.

Nowhere in the complaint or application for review before the

Commission is there a clear statement of the issue which is

alleged to be both controversial and of public importance.

It would be improper to require the licensee and the Commission

to ferret out the critical issue, since petitioners bear the burden

of putting the issue forward in a manner that makes it possible

for the exercise of discretion as to whether the fairness doctrine

or personal attack rule has been properly invoked. Nevertheless,

we need not rely on petitioners’ failure to state the issue clearly,

because the Commission was correct in ruling that ABC did not

overstep its discretion in failing to find a controversial issue of

public importance, even if we regard the above two issues as

properly suggested in the complaint and application for review.

Petitioners allege nothing that would support a contention that

there is a controversy over the issue whether Poles or Polish

Americans are less intelligent, less clean, less coordinated, etc.

than other people. If some people do seriously assert the in-

feriority of Poles and Polish Americans, it was unreasonable

for ABC to decide that they have not generated enough support

for their position to raise a controversial issue of public im-

All

portance. Even if such a debate existed, we could not say that a

determination by ABC that the broadcast of the skit in question

did not constitute a discussion of this issue was unreasonable.

In any event, the record satisfied us that petitioners did not seek

to convince the Commission that the skit presented views on

such a question.

Assuming that petitioners asserted the question whether broad-

casting Polish jokes is desirable, they still failed to demonstrate

that there is a controversy of public importance over that issue.

In an attempt to show that a controversial issue of public im-

portance was aired on August 10th, petitioners cite the news

coverage afforded the filing of the complaint in this case. Many

newspapers across the country carried a wire service story

describing the action filed with the Commission. All newsworthy

events do not constitute controversial issues of public importance.

Healey v. Federal Communications Commission, supra, at 922.

Moreover, the newsworthy event covered by the papers was not

the Polish joke skit, but a filing of a complaint by petitioners

before the Commission. The complaint was filed almost eleven

months after the broadcast. To the extent that news stories might

reflect on the existence of a controversial issue of public im-

portance, the “fairness doctrine requires a current judgment,” so H

that the passage of the eleven months from the broadcast might :

well have caused the Commission to discount the relevance of the

news stories. Larus & Brother Co., supra, at 881, 883.

In assailing the licensee’s decision, petitioners also rely on

the denunciation of Polish jokes by various individuals and

groups, including resolutions by the city government of

Hartford, Connecticut, and the United States House of Repre-

sentatives. Such condemnations do not cause a skit containing

Polish jokes to become a discussion of a controversial issue of

public importance. No contrary resolutions or other disagree-

ments with the essence of the resolutions are cited from which

the Commission or ABC might deduce that a controversy

existed over the desirability of broadcasting Polish jokes. Even

aii las ae Coe ae

Al2

if we assume that the skit constituted a statement favoring the

broadcasting of Polish jokes, it was reasonable to conclude that

such an endorsement does not create a public issue requiring

a response, where nothing suggests that such an issue existed

before the broadcast.

Petitioners cite an informal survey of children in the sixth

grade responding to the question “What does Poland or Polish

mean to me?” Although some the responses reflect a negative

view of Poles, they say nothing about a public controversy over

the desirability of broadcasting Polish jokes. Assuming that the

survey demonstrates that Polish jokes may have an unhealthy

influence on the attitudes of the young toward Polish people,

the survey fails to suggest in any way that a public controversy

existed at the time of the broadcast over any issue which may

reasonably be said to be raised by the pleadings before

the Commission.

Finally, we reject petitioners’ contention that ABC’s action

in requiring Steve Allen, on the August 11th show, to apologize

to those who were offended by the previous night’s skit demon-

strates that there was a controversial issue of public importance

discussed. Television networks are rightfully concerned about

the ethnic sensibilities of their audiences. Good public relations

in issuing an apology to those who took offense at a segment

of a broadcast is not the same as acknowledging that a con-

troversial public issue was discussed. Concern for ethnic sensi-

bilities on the part of the networks is laudable, but the Com-

mission has not been empowered to turn ethnic sensibilities

into law.®

6. See Wall Street Journal editorial, ‘Polish Jokes,” of July 27,

1973.

aN ete i alla Rare

Al3

It should also be noted that Steve Allen made it clear on

both the August 10th and 11th broadcasts that the skit was

intended to amuse. ABC has also so stated. While petitioners

do not approve of such attempts at humor, they do not contend

that the skit was intended as other than comedy. Certainly,

humorous intent should not be an absolute insulator from the

fairness doctrine or personal attack rules, for a presentation of

views on a controversial issue of public importance might be

very effectively couched in a humorous or satirical setting.

Nevertheless, the intent of the broadcast may be relevant to the

determination whether one side of a controversial issue of public

importance has been presented.

This Court’s conclusion that petitioners have failed to show

that the August 10th skit presented a controversial issue of

public importance should not be read to preclude the future

success of a similar petition. The licensee and the Commission

must make the determination whether such a controversy exists

with reference to the time of the broadcast. Larus & Brother Co.,

supra, at 881, 883. Thus it is conceivable that an important

public controversy could arise over the desirability of broadcast-

ing Polish jokes at some time after the telecast relevant to this

suit. Of course, if a telecast that is challenged in the future

consists of the mere recitation of Polish jokes, rather than a

serious discussion of an issue, petitioners would be required to

prove that merely relating such jokes constituted a presentation

of views on, or a discussion of, a controversial issue of public

importance.

Al4

Since we cannot agree with petitioners that the broadcast of

these jokes constituted a presentation of views on a controversial

issue of public importance, the Commission’s order is affirmed.’

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit.

7. National Broadcasting Co. v. Federal Communications Com-

mission, ........ Peale pauses (D.C. Cir. 9/27/74, No. 73-2256), in-

volves the fairness doctrine in a situation where the Commission

rejected the licensee’s determination that an opportunity to reply

was not required. A majority of the panel thought the Commission

erred and reversed. Rehearing en banc was first granted (December

13, 1974) and then the Court en banc remanded the case to the

original panel, reinstating their opinion, for consideration of moot-

ness (March 18, 1975). Judge Bazelon filed a lengthy dissent from

the en banc order remanding the case. In an order released July 11,

1975, the panel on remand vacated their original judgment revers-

ing the Commission and remanded the case to it for dismissal of the

fairness complaint. The Commission had requested this action after

determining that the passage by Congress of certain legislation had

removed the need for a response to the challenged broadcast. Much

of the disagreement among the judges of the District of Columbia

Circuit in National Broadcasting Co. stemmed from the Commis-

sion’s reversal of the licensee’s decision. Such a reversal did not

occur in the instant case. Thus, while we have examined the opinions

of the various judges, it has not been necessary for us to refer to

them in disposing of this case.

Al5

FEDERAL COMMUNICATIONS COMMISSION

Washington, D. C. 20554

Sep. 26, 1973

In Reply Refer to:

8330-R

C7-184

Thaddeus L. Kowalski, Esq.

Polish-American Congress, Inc.

1200 North Ashland Avenue

Chicago, Illinois 60622

Dear Mr. Kowalski:

This is in response to your June 28, 1973 complaint against

television programs broadcast by ABC.

You allege that ABC violated the Commission’s personal

attack rule during the August 10, 1972 broadcast of the Dick

Cavett Show by attacking “the character, intelligence, hygiene or

appearance of members of the Polish American community.”

You state that the controversial issue of public importance in-

volved was the “demeaning and defamatory attacks in the guise

of ethnic ‘humor’.” Additionally, you contend that ABC failed to

notify you of the alleged attack or to provide a copy of the

script within seven days, or to offer you a reasonable opportunity

to respond, pursuant to the Commission’s personal attack rule.

You state that a so-called “apology” made by Steve Allen on the

Dick Cavett Show of August 11, 1972 was actually “the basis

for more demeaning humor.”

You also claim that ABC has violated the fairness doctrine

by failing to present in its overall programming “opposing views

on the issue of defamation of Polish Americans.” You state that

“the ‘Polack jokes’ on the Dick Cavett Show, hosted by Steve

Allen, on August 10 and 11, 1972 constitute a controversial

Al6

issue of public importance because such jokes in and of them-

selves belittle a large segment of the population.” Specifically,

you contend that the jokes disseminate the “dumb polack image,

i.e., lack of intelligence, lack of personal hygiene, comic apparel

and obnoxious features.” Further, you state that humor is an

“important propaganda tool” and does not lessen the public

importance of the issue, and you cite a resolution introduced in

Congress, calling for the cessation of “television programs that

defame, stereotype, ridicule, demean or degrade any ethnic or

religious group.”

In its October 31, 1972 letter to you, ABC denied that any

“harm or malice toward Polish-Americans was intended.” ABC

stated that Steve Allen apologized for any offense the following

night, August 11, 1972, and it declined your “equal time” request.

The selection and presentation of specific program material

are responsibilities of the station licensee, and under the pro-

visions of Section 326 of the Communications Act the Commis-

sion is specifically prohibited from censoring broadcast material.

However, if a station presents one side of a controversial issue of

public importance, it is required to afford reasonable opportunity

for the presentation of contrasting views. This policy, known as

the fairness doctrine, requires a broadcast licensee to encourage

and implement the broadcast of contrasting views in its overall

programming which, of course, includes statements or actions

reported on news programs. Thus, both sides need not be given

in a single broadcast or series of broadcasts, and no particular

person or group is entitled to appear on the station, since it is

the right of the public to be informed which the fairness doctrine

is designed to assure rather than the right of any individual to

broadcast his views. It is the responsibility of the broadcast

licensee to determine whether a controversial issue of public

importance has been presented and, if so, how best to present

contrasting views on the issue. The Commission will review

complaints to determine whether the licensee can be said to have

acted reasonably and in good faith.

a + TED A Bt BOE MOREA a hs BAB a ice leit atte nian aan Nae

Al7

In support of your contention that the broadcast of Polish

jokes constitutes a controversial issue of public importance, you

state that the jokes “belittle a large segment of the population”

by perpetuating a “dumb Polack image.” However, you have not

shown that there is any controversy in this country concerning

the intelligence or other qualities of Polish Americans.! Accord-

ingly, we are unable to find from the evidence presently before

us that ABC was unreasonable in concluding that the broadcast

of the jokes and attendant remarks did not constitute the

discussion of a controversy of public importance.

However, we believe an additional comment is appropriate

here. Programs containing criticism, ridicule or humor concern-

ing the religious beliefs, race or national background of persons

or groups are sometimes the subjects of complaints received by

the Commission.? Such broadcast matter, however offensive it

may sometimes be, also enjoys the protection of the Constitu-

tional guarantees of free speech. As the Commission stated, in

part, in its Memorandum Opinion and Order of January 22,

1964, concerning the license renewal of the Pacifica Foundation

Stations (36 FCC 147, 149):

We recognize that as shown by the complaints here, such

provocative programming as here involved may offend some

listeners. But this does not mean that those offended have

the right, through the Commission’s licensing power, to

rule such programming off the airwaves. Were this the

case, only the wholly inoffensive, the bland, could gain

access to the radio microphone or TV camera. No such

drastic curtailment can be countenanced under the Consti-

tution, the Communications Act, or the Commission’s

policy, which has consistently sought to insure “the main-

1. You submit the solicited statements of some 80 sixth-grade

students purporting to show anti-Polish bias. However, a number of

these letters expressed the writers’ disapproval of the image pro-

jected by the Polish jokes.

2. In fiscal year 1973, the Commission received some 333 com-

plaints which charged racial or ethnic criticism, ridicule or deg-

radations in the television field.

Al18

tenance of radio and television as a medium of freedom of

speech and freedom of expression for the people of the

Nation as a whole” (Editorializing Report, 13 FCC 1246,

1248). In saying this, we do not mean to indicate that

those who have complained about the foregoing programs

are in the wrong as to the worth of these programs and

should listen to them. This is a matter solely for deter-

mination by the individual listeners. Our function, we

stress, is not to pass on the merits of the program—to

commend or to frown.

Since we have determined that the network was not un-

reasonable in concluding that no controversial issue of public

importance was involved, the broadcast of the Polish jokes

could not constitute, under the Commission’s rules, a personal

attack. In order for the personal attack rule to be applicable,

the attack must occur during the discussion of a controversial

issue of public importance. Section 73.123(a) of the Commis-

sion’s Rules and Regulations. Even had a controversial issue of

public importance been involved here, it does not appear that

these jokes and attendant remarks could have constituted

a personal attack under the Commission’s rules. The statement

of a particular view, however strongly or forcefully made, does

not necessarily constitute a personal attack. The Port of New

York Authority, 25 FCC 2d 417 (1970). To qualify under the

Commission’s rule, the attack must reflect upon the “honesty,

character, integrity or like personal qualities” of a person or

group, and not merely reflect upon ability, knowledge or like

intellectual or motor skills.

Prade attas ag

Al9

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, D. C. 20554

In re complaint of 7

THADDEUs L. Kowa skI, Esa.

and ANTI-DEFAMATION

COMMISSION OF THE POLISH FCC 74-314

AMERICAN CONGRESS, INC. -r =: 10735

against

AMERICAN BROADCASTING COMPANIES, INC. |

MEMORANDUM OPINION AND ORDER

Adopted: March 28, 1974; Released: April 3, 1974

By the Commission: Chairman Wiley abstaining from voting.

1. The Commission has before it an Application for Review

of the Broadcast Bureau’s ruling of September 26, 1973, filed

October 29, 1973 by Thaddeus L. Kowalski, in his individual

capacity, and on behalf of the Anti-Defamation Commission

of the Polish American Congress, Inc. (hereinafter Petitioners).

Also before the Commission are an Opposition to the Application

for Review filed on November 14, 1973 by American Broad-

casting Companies, Inc. (ABC); and Petitioner’s reply to said

oppposition, filed December 3, 1973.

2. In their June 28, 1973 complaint, Petitioners alleged that

ABC violated the Commission’s personal attack rule during

the August 10, 1972 broadcast of the Dick Cavett Show by

attacking “the character, intelligence, hygiene or appearance of

members of the Polish American community” by means of

so-called “Polack jokes.” Petitioners further alleged that the

controversial issue of public importance involved was the

A20

“demeaning and defamatory attacks in the guise of ethnic

‘humor’.” Petitioners also claimed that ABC violated the

fairness doctrine by failing to present in its overall programming

“opposing views on the issue of defamation of Polish Amer-

icans.” Specifically, Petitioners contended that the “Polack

jokes” broadcast on the Dick Cavett Show disseminate the

“dumb polack image, i.e., lack of intelligence, lack of personal

hygiene, comic apparel and obnoxious features.”

3. We have examined the pleadings herein and believe that

the Bureau’s ruling was correct for the reasons stated therein.

However, we believe that certain matters raised in the instant

case merit some comment.

4. No matter how much it may disagree with a certain

matter, the Commission is prohibited, under Section 326 of the

Communications Act from censoring broadcast material or from

promulgating any regulation which would interfere with freedom

of expression by broadcasting. With the exception of appear-

ances by legally qualified candidates for public office and other

matters specifically covered by statute, the Commission does

not interfere in the selection of particular program material,

nor may it either prohibit or compel the broadcast of any

particular program. National Citizens Committee for Broadcast-

ing, 42 FCC 2d 1060 (1973). As the Commission has stated:

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 U. S. 568 (1942);

Ashton v. Kentucky, [384 U. S. 195], 34 L. W. 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 prin-

ciple insures that the most diverse and opposing opinions

9A = a Na a a a Ri SNS

lca il NO RB sir LO Nat

nah A RIM FINAN oe

A21

will be expressed, many of which may be even highly

offensive to those officials who thus protect 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 congenial. Anti-Defama-

tion League of B'nai B’rith, 4 FCC 2d 190, 191-2 (1966).

5. We agree with the Bureau’s ruling that ABC was not

unreasonable in concluding that the broadcast of the jokes

herein and attendant remarks did not constitute the discussion

of a controversy of public importance. Consequently, neither the

fairness doctrine nor the personal attack rule may be applied

in the instant case. Regarding the personal attack rule, it applies

only where an attack is made upon the honesty, character,

integrity or like personal qualities of an identified person or

group during the presentation of views on a controversial issue

of public importance. 47 C.F.R. § 73.679. See Fairness Primer,

29 Fed. Reg. 10415, 10420 (1964). Even if a controversial

issue of public importance was involved in the matter about

which petitioners complained, the personal attack rule would

not apply to the language here cited. The text and prior applica-

tion of the personal attack rule clearly indicate that the oper-

ation of the rule was to be predicated upon an attack on those

personal qualities bearing on the moral rectitude or personal

credibility of a named individual or group. Rome Hospital and

Murphy Memorial Hospital, 40 FCC 2d 452, 453 (1973).

6. For the foregoing reasons, pursuant to Section 1.115(i)

of the Commission’s Rules and Regulations, the Application for

Review IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

/s/ VINCENT J. MULLINS

Vincent J. Mullins

Secretary

awit akhanes

«rer SI

A22

APPENDIX

Personal Attacks Broadcast August 10, 1972 by Guest Host

Steve Allen on the Dick Cavett Show.

“Why does it take one hundred Polacks to paint a house?”

And then he said “one to hold the brush and ninety-nine

to turn the house.” (Laughter)

The woman said, “How can you tell a Polack from an

ape?” And the answer was “the ape peels the banana

before he eats it.”

“How did a Polack get fifty-five holes in his head?” And

then he said, “learning to eat with a fork.” (Laughter)

What happened when the Polish traveling salesman spent

the night in the farmer’s barn?” And the man with him

said, “I don’t know.” And he said, “the [pig] got up and

went to the house”. (Laughter)

“Why does it take one hundred Germans to paint a house?”

“One German to hold the brush and ninety-nine Polacks

to turn the house.—”

i el Sr Ne ee

A23

MICHAEL REESE HOSPITAL AND MEDICAL CENTER

Babette and Emanuel Mandel Clinic

29th Street and Ellis Avenue @ Chicago, Illinois 60616

Telephone:

Area Code (312) 791-1234

December 4, 1973

Eugene L. Slotkowski, M.D.

5330 West Devon Avenue

Chicago, Illinois 60646

Dear Gene:

Thank you very much for your letter of September 24. I

cannot tell you how strongly I agree with your statements

about “Polack” jokes.

From a professional standpoint, I am convinced that there

is nO question but that television and other media beamed at

children does produce an effect. As a matter of fact, if this

were not the case, I doubt whether any manufacturer would ever

buy advertising time. The effect of derogatory statements about

ethnic groups can only serve to produce a negative image

where none previously existed or to reinforce such feelings

that may have already been harbored by other family members.

In short, I believe that no pediatrician would condone the kind

of slurs that you and I so strongly « »ndemn.

Aside from strictly professional considerations, there is also

the question of violation of elementary human ethical standards.

After all, the material incorporated through the eyes and reach-

ing the central nervous system must be analogous to the food

that passes through the mouth and into the digestive system.

In other words, we are not only what we eat, but what we see.

At this particular time of growing natonal disunity, it seems to

me that continued dissemination of books and other statements

a — = — casaeeneno tery Se yO RPO Sg Me

Sa ‘ PEERS LCE LT RELIG OI CLE ADELE REE LOGE IS LNG EN ask Me Swe

s PCO ARP DDT kee eea es oon yas AS OR AERY OPM TS EP RP

A24

prejudicial to minority groups represents a major threat to

our immediate stability as a people as well as to our long range

concerns for international peace.

Please feel free to use this letter as you see fit. In response to

your final question, I would be willing to testify in person

before the FCC and to meet with your attorney, Mr. Kowalski,

if he feels I can be of further assistance in this very significant

issue.

Sincerely,

/s/ ROBERT S. MENDELSOHN, M.D.

Robert S. Mendelsohn, M.D.

Associate Professor, Department

of Preventive Medicine and

Community Health University

of Illinois School of Medicine