# Brief for the United States — Red Lion Broadcasting Co. v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0115%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1969 - **Citation:** 395 U.S. 367 ## Text sa, » yeep in, i _ Page Opinions Below........... see Lilkateliiveiscneeel a ee eid atabesesesnoctiaeeueyense:. a Constitutional Provisions ..... ceugewers eae e se Statutes ..... 0... cece ees ccecec seer wweceseccsces 2 Regulations bese cece ccc scneceseccesceceees eeenued “Va ae Question Presented for Review ........... ewtoa wees 4 Statement of the Case ....... peeks ie ER 5 Summary of Argument Re en, Cee. a we eeee to Argument ...........+... besceeenseccceevereereees: 18 ESSE EE ie Tae eee pk lal ade 38 CITATIONS Caszs: Abbott Laboratories v. Geib: 387 U:S. 136 (1967) . Bates v. Little Rock, 361 U.S. 516 (1960) ............ Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 32 Curtis Publishing Company v. Butts, 388 U.S. 130 — Se EI ROP PROSE 2 MEE ee eee ee Pre ys Farmers Union v. WDAY, 360 U.S. 525 (1959) fi4435- ee _ Federal Communications Commission v. Sanders Broth- °° ers Radio Station, 309 U.S. 470 (1940) ........... 34 Grosjean v. American Press. Co., 297 U.S. 233 (1936) .. 18 Hague v. C.1.0., 307 US. 496. (1989) AE Oar FRR ae 30; 31 Hannegan v. Esquire, 327 U.S. 146 (1946) ........... ~~ OS Keyishian v. Board of Regents, 385 U:S. 589 ( rol 27 Lamont v. Postmaster General, 381 U.S. 301 (1965 29, 31 Lovell v. Griffith, 303 U.S. 444 (1938) ...-........2... 31 ‘Mills v. Alabama, 384 U.S. 214 (1966) :.............. 33 <3, Gi eee Index Continued . Page NAACP v. Alabama; 357 U.S. 449 (1988) Se tees 33 National Broadcasting Company v. United States, 319 ay tf Sf) rT Arete + Oe - . Near v. Minnesota, 283 U.S. 697 (1931) ..:.... eretre 18, 32. _- -, New York Times Co. v. Sullivan, 376 U.S. 254 (1964). ‘21, 32 a Red Lion Broadcasting Co., Ine. v. FCC, 381 F. 2d Wastes CR Si ei eae 1, 22, 29,36 Roth v. United States, Mins 476 (1957) 112... "19, 31 Schneider v. State, 308 U.S. p' @: ) re acteas 31 Smith v. California, 361 U.S. 147 (1959) .....:... 19, 23, 29 Speiser v. Randall, 357 U.S. 513 (1958) :............. 20 Superior Films v. Department of Education, — US. -, §87 pt A ES SOE 18 Talley v. California, 362 U.S. 60 (1960) ............. 20,33 - omas v.-Collins, 323 U.S. 516 (1945) .............26, 30 rnhill v. Alabama, 310 U.S. 88 (1940) .........6.. 19 ik Seer roe 30, 32 United States v. Paramount Pictures, 334 U.S. 131 ' SE sibs theaGs te basv esse wheter ep sacceessss 18 Winters v: New York, 333 U.S. 507 (1948) ‘aes aeeeees . 32 | Srarures: t | oT GRE A See aaa a te IE eb Fags he chub atsems cessesasbavedee os. ie WI i evs seibecsicseses. seeevegeeeseeion © 8 28 USC 1254(1) .0..2.eee ee eeteeeeeeeeeeseeeeeeees 2 Ee I iis cchnacongovenscvcandyassves a ee Eo cicscdsjescooscotcvveuerianseput rm IIR 5 oi cdasssdeccevsecs he eer ee 23 6) | ESS sneer as 8,13, 17, 27, 36,37 '/. 47 UBC 396:........ Lithivet ice Wiechavoneaibdeon 4 47 USC 402(b) ...:.../....... TRIE OSY Rep ae ee e: ‘AT USC 508(b) .c.e.-. cece cece ateieatte Sees 23 United States v. International Union, 352 U.S. 567 P.L, 86-274; 73 Stat. 557, September 14, 1959 ......... 3,28 - Index Continued tooo ae MisceLLANEovs: : | he Page Chafee, Government & Mass Communications (1947) 18, 23, 34 Clayton W. Mapoles, 23 Pike & Fischer, R.R. 586 (1963) 37 Constitution PRIN Bg Sip eas bace ccd cckeacees 2 _ Fairness Primer, 29 Fed. Reg. 10415 (1964) ..... tes 387 Frantz, Phe First Amendment in. the Balance, 71 Yale . Ran cae, pa ctn acs nccacess .22, 35 FCC Publie Notice, J uly 26, 1963, FOC 63-734; 25 P&F Radio Reg. 1899 (1963) . jcKevnMebhnn sand came ts 4 FCC Rules & Regulations, Secs. 73. 35(b), 73. 240(a) (2), 78.636(&)(2) 2... 20sec ceccecccccccccececceces In the Matter of Petitions of Columbia Broadcasting System, Inc. and National Broadeasting Co., 26 FCO 715 (Lar Daly) <.......0...cececetapheus: 27, 37. James Reston, New York Times, Friday, December 22, | ' 1967 seeees epee erccccccccccccceccceccecccecce ' 25 Senate Report No. 562, July 23.1960 ....... metered 28, 37 U.S. Bureau of the Census Statistical Abstract .of the - | United States, 1967 (88th Ed.) Nos. 737, 746 eure. 35 _ Webster’s New World Dictionaey VE RAY EG a t IN THE y eores Court of the United States OcTOBER TERM, 1967 © No. 600 ° Rep Lion Broapcastina Co., Inc., ET AL., Petitioners, x. r7 _ Feperay Commbnications Commission, Respondent. On Writ of Certiorarl to the United States Court of Appeals ee . a. = , OPINIONS 5 BELOW The opinions of Circuit J udge Tamm and Cireuit - Judge Fahy of the United States Court of Appeals — - (A19) are reported, Red Lion Broadcasting Co., Inc., et al. v. Federal Communications Commission, et a., US. App. D.C. 381. F 2d 908. . r FORISDICTION _. The judgment of the Circuit Court of Appeals was entered June 13, 1967. The petition for certiorari was filed September 11, 1967 and granted December 4, 1967. 2 ' The juriedietion of this Court is wanes 28 USC , 1254(1) and 5 USC 1040. The jurisdiction of the Cir- . cuit Court of Appeals was invoked under the provisions of Sec. 402(a) ‘of the Federal Communications Act of 1934 as amended, 47 USC 402(b), and 5 USC 1009(c), 1009(e), and 5 USC 1032. S CONSTITUTIONAL PROVISIONS, STATUTES - AND REGULATIONS - ; fy - Constitutional Provisions _ AMENDMENT : _ ». Congress shall make no aw saaicittiie: an -establish- ‘ment of religion, or prohibiting the free exercise there- _ of; 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 4 redresg, of grievances. my . » . ‘ Statutes A Communications ACT OF 1934, As AMENDED. - Sections 308 ( g), 315(a), 326 ; 47 USC 3032), 315(a), 326. - Section 303. Powers and duties: of Commission. Except as otherwise: provided in this chapter, the Commission from time to time, as public ee, : interest, or necessity — shall— . : ee * * ‘ & ¢ g) Study new uses for radio, provide for ex- _— perimental uses of frequencies, and generally en- courage the larger and more effective use of radio _ inthe public interest ; a e a | a . : 3 Section 315. Candidates for ama atanici facilities; | _ rules < (a) If any licensee shall enn any person who isa 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: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to- allow the use of its station by any such candidate. “A ppearance by a legally qualafied candidate on ae | (1) bona fide newscast, (2) Dona fide news interview, (3) bona fide news documentary (if the appear- ance of the candidate is incidental to the presentation of the subject or subjects — by the news documentary ), or (4) on-the-spot coverage of kona fide news . events (including but not limited to political conventions and activities inetdental there- to), ; > shall not be deemed to be use » a broadcasting station within the meaning: of this subsection, Nothing in the foregoing sentence shall be con- strued: as relieving broadcasters, in ‘connection _ with the presentation of newscasts, news inter- , . views, news documentaries, and on-the-spot cover- - age of news events, from the obligation’ imposed - upon them under. this chapter to operate in 80% ee ‘public interest and to afford reasonable op , tunity for the discussion of conjlicting views on : issues of.- public importance. ‘ 7 1 Portion in italies added by amendment apquond sities 14, 1959, Public Law 86-274; 73 Stat. 557. (b) The charges made for the use of any broad- casting station for any of the purposes set forth in this section shall not exceed the charges made for ; comparable use of such station for other purposes. (¢) The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section. | Section 326. . Obenondily. Nothing in this chapter. shall be understood or construed to give the Commission the power of | censorship over the radio communications or sig- nals 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 — by means of radio communication. . "Regulations Federal Communications Commission Public Notice, July 26, 1963, FCC 63-734; 25 P & F Radio Reg. 1899 (1963) a ( A) When a controversial program ‘pvetvas a per- ' . gonal attack upon an individual or organization, | the licensee must transmit the text of the broad- cast to the person or group-attacked, wherever located, either prior to or at the time of the broad- east, with a specific offer of his station’s facilities for an adequate response. (‘Clayton W. Mapoles, | 23 Pike & Fischer RR 586, 591; Billings: Broad- - casting Company, 23 Pike & Fischer RR 951, 953). _ QUESTION PRESENTED FOR REVIEW Whether the First Amendment rights of the peti- tioners, owners and operators of a radio broadcasting | station, are abridged by an order of the Federal Com- munications Commission, pursuant to the Commission’s — . . . en nl eg in oan BN ng att nce CRS tin no ea Aine Ot “ ~ mores eergeabneas I nse ome 3,” “personal attack” doctrine, requiring the petitioners, in the case of a person who during a.broadcast over the. petitioners’ station is the subject of. a ‘“‘personal at- tack’’, as defined by the Commission, to furnish to such — person a tape recording, transcript or summary of the attack, and thereafter to offer him without charge com- parable time in which to respond; these obligations be-_ - . ing imposed upon the petitioners irrespective of the truth or falsity of the statements contained-in the at- tack, and without regard to the fact that the petitioners - may have broadeast them in good faith, believing them — .to be true. STATEMENT OF THE CASE The petitioners are Red Lion Broadcasting Co., Inc., the licensee of Radio Station WGCB-AM-FM, at Red Lion, Pennsylvania, and the Reverend John M. Norris, the principal stockholder and president of Red Lion ' Broadcasting Co., Inc. (A5) They petitioned the United States-Court of Appeals for the’ District of Columbia. Circuit. to review an order of the Federal Communications Commission, directing the petitioners to grant free time over petitioners’ radio station to one _ Fred J. Cook, so that he might respond to a personal attack made on him over the facilities of thege stations by one Reverend Billy James Hargis. The challenged order required petitioners to furnish Mr. Cook a trans- _ seript, recording or summary of the broadcast in ‘ques- tion and to grant him free time even though he was financially able’ to pay for the time. (A5) The‘case was heard in the: Circuit Court of Appeals before Senior Circuit Judge Wilbur K. Miller, and- Cireuit Judges Fahy and Tamm. “The Court of Appeals af- firmed the action of the Federal Communications Com- 6 - mission. Circuit Judge Tamm filed an opinion. Cir- cuit Judge Fahy filed a separate opinion concurring in _ the result. Senior Circuit Judge Miller did not par- ticipate in the consideraiton and decision of the case on the merits.” In November 1964 petitioners broadcast a 15-minute - program by Reverend Billy James Hargis as part of ‘a series entitled The Christian Crusade. (A32, 37, 60) The program included a discussion of the 1964 Presi- dential election and of a book by Mr. Fred J. Cook about the Republican campaign, entitled ‘“Goldwater—Ex- '. tremist on the Right”. (A37; 60,93) As part of the _ broadcast Reverend Hargis. made the —— state- ments concerning Mr. Cook: “Now who i is Cook? Cook was fired i the New York ‘World-Telegram after he made a falge charge - | publicly on television against an unnamed official of the New York City government. New York publishers and Néwsweek magazine for December _ 7; 1959, showed that Fred Cook and his pal Eugene Gl¢ason had made up the whole story and this con- eg was made to District Attorney, Frank 0 ”? - (A838) = ; The Hargis program. was broadeast by a number of other stations located i in various parts of the country. -. *The panel onksleting of J wine Miller, Fahy and Tamm, with ~ Judge Fahy dissenting, had previously concluded that the chal- lenged rulings of the Commission were declaratory only, and not orders from which an~appeal might be taken, and the panel ac- cordingly dismissed petitieners’ action. (A82, 86,90) Thereafter a@ majority of the Court en banc voted to vacate the opinion and judgment filed by the panel and directed the assigned division to consider the petitioners’ action upon the merits. (A90,92) Abbott Labératories v. Gardmer, 387 U.S. 136, decided May 22, 1967, has _, sustained the position of J adge Fahy and. the majority ofthe Court - on the jurisdictional point. Ss (A26-29) Thereafter Mr. Cook wrote to Station WGCB, quoting from the Hargis broadcast, and stating: . 66% & & & ‘The purpose of this inquiry is ty 0-fold: . (A) Since your: station is /isted as one of those that has carried the Rev. Billy James Hargis’ Christian Crusade broadcasts, did you in fact put on the air this attack against m¢ made by the Rev. Billy James Hargis? I expect an answer, yes or no. : _ “(B) If you did, this is to serve notice that I shall expect you to grant me equal ftime, at your expense, as provided in FCC regulations, to answer in ap- propriate fashion this sla cocoa and libelous -attack.’’ .(A33, 34) : In response ne —eo" Mr. -Cook with the - WGOB rate card so that he could arrange for the time he. might wish to purchase. Pétitioners also sent Mr. | Cook copies of letters which they had written in answer to comparable requests by the Democratic. National Committee dnd the American Civil Liberties. Union. (A34, 35) After.a further exchange of letters between Mr. Cook and WGCB he filed a complaint with the Federal. Communications Commission. In his com- plaint Mr. Cook charged. that Station. WGCB had broadcast a ‘personal attack’’ against him by Reverend Hargis, without notifying him of the attack or furnish- _ing him with a transcript or summary either before or ' after the program was aired, and that the station had - refused his request for free time’ to po to the attack.. (A387) ’ . The Commission brought Mr. Cook’s complaint to the attention of the petitioners and requested an answer . 8 por 4 | . . within twenty days. (A31) In their response the peti- tioners stated their understanding to be | “eee that the Commission’s fairness doctrine requires a broadcast licensee-to give free time to _ reply to paid broadcasts only if sponsorship is not available for such reply broadcast. Our communi- cations to Mr. Cook’ were designed to ascertain : whether Mr. Cook was prepared to ‘ sponsor’ or’ pay for liis reply broadcast. Mr. Cook’s communi-. cations to us, however,’ have on meray: answered iy our inquiry. ‘The ‘Commission is ores advised that WGCB will give Mr. Cook an appropriate amount of time to answer the alleged attack upon him in the Har- gis program he advises us that he is financially. unable to *sponsor’ or pay for such a broadcast. ‘ We. are quite certain that it would be impossible _ for us to obtain other sponsorship of such a broad- cast. * * # (A832, 33) | To these winditnaathe the Commission answered : “The licensee, with the exception of appearances ' -of political candidates, is fully responsible for all matter which is broadcast over his station, includ- ing broadcasts containing a personal attack. The _ latter is defined in our recent fairness primer as an attack ‘.. .on an individual’s or group’s honesty, character, integrity, or like personal qualities . . in connection with a. controversial issue of public : importance. See part E, Personal Attack Prin- ciple, ‘Applicability of the Fairness Doctrine in — the Handling of Controversial Issues of Public © Importance’, 29 F.R. 10415, 10420-21. A owy of this document i is enclosed. - ‘Where such an attack occurs, the licensee has an obligation to inform. the person aftacked of the attack, by sending a tape or transcript of .the broadcast, or if these are unavailahle, as accyrate s /; ; , . ‘ ‘ OC iit ot - nae Aan ae eg - ) 8 | summary as possible of the elaidaaitn of, the . attack, and to offer him a comparable opportunity ‘to respond. Tbid., The licensee may not delegate - his responsibilities in this respect to others. Re- port on ‘Living Should be Pun’ Inquiry, 33 FCC. 101, 107. “In this case the program in question/ contained , a personal attack on Mr. Cook, since it asserted that he was fired from his newspaper job because ~ he made false charges against public officials. Your failure to notify Mr. Cook of the attack upon him by Mr. Hargis aired by your station and to offer him the opportunity to reply, was inconsistent ,, with the foregoing procedural requirements. ‘In the case of a personal attack, the individual or group attacked has the right to appear. Cull- man Broadcasting Co., FCC 63-849, Ru 16, Fairness Primer. The licensee is, of co » per- | fectly free to inquire whether the individual is _ _ willing to pay to appear. Here Mr. Cook, in his letters of December 19 and 21, 1964, ’ stated that he was not. The licensee is ‘also free to obtain: ’ a sponsor for the program in which the reply is. broadcast, or to present the reply on the particular program series involved, if this is agreeable to the ~ -: Bae having presented a personal attack’ on an indi- parties such as Mr. Cook and atiac on Hargis. vidual’s integrity, honesty, or character, the — - jicensee cannot bar the response—and thus ‘leave . the public uninformed as to his side and ‘elemental fairness’ not achieved as to the person attacked * (Editorializing Report, Paragraph 10)—simply bécause. sponsorship is not forthcoming. Cf. Cullman Broadcasting Co., supra. ‘In short, the burden was upon you to find ‘spon-_ '” sorship, if you so desired, for Mr. Cook’s reply; nor, in the ci neces, did Mr. Cook have to make any*. showing or, representation that he is e 10 a financially unable’ to — or r pay. for his reply time.” “Accordingly, you are recnngled to’ ives the | ‘Commission of your plans to comply with the ‘fair- “ness doctrine’, — to the situation.”’ — 40), The ilicaies aiiied the Ciiniieibadla to viata its ruling. They pointed out that prior to the Hargis broadcast Mr. Cook in a magazine article had attacked Mr. Hargis, his program, and his organization. The petitioners also requested “a ruling by the Commission ,- on the constitutionality of the ‘fairness doctrine’ as ap-. plied to the instant situation.’’ (A40-43) . The Com- mission thereafter reaffirmed its ruling, ne in part | (AALA8) 2 : : (6% & & “As to the contention that you will permit Mr. .Cook to air. a free response only if he is financially unable to pay, such a position is, we think, incon- sistent with the public interest. The licensee has decided that it served the needs and interests of its area to have a personal attack aired over its . station ; the public interest requires that the public . be given the opportunity to hear the other side. ° The licensee cannot properly make that oppor- - tunity contingent upon the payment of money by the person attacked (or the circumstance that he is financially unable to pay). The licensee may, of. course, inquire whether the person attacked is will- ing to pay for airing his response, or take other appropriate steps to obtain sponsorship. See our prior ruling. But if these efforts fail, the person attacked must be presented on a sustaining basis. We believe that this is a matter of ‘both. Seiten fairness to the person involved and, more im- portant, of affording the — the opportunity 11 to hear the other side of an issue which the licensee has adjudged to be of importance to his listeners. — See Cullman. Broadcasting Co., ~~ 63-849, Rul- ing No. 17, Fairness Primer. ‘‘There are.other policy saithianitiiiee supporting - the. foregoing conclusion. A contrary position would mean that in the case of a network or widely syndicated program containing a personal attack in a discussion of a controversial issue of public — importance, the person attacked might be required to deplete or substantially cut into his assets, if © he wished to inform the public of his side of the matter; in such circumstances, reasonable oppor- tunity to present conflicting’ views would not, practically speaking, be afforded. Indeed, it has ; been argued that under.such a’ construction, per- sonal attacks might even be resorted to as an oppor- tunity to obtain additional revenues. ‘‘For all the above considerations, we hold that the licensee may Inquire about payment, but cannot insist upon either such’ payment or a showing of financial inability to pay in this personal attack situation. Here, Mr. Cook, in his letters of De- eember 19 and 21, 1964, dati that he’ was not: willing to pay to ‘|ppear. | 66% & &99 In response to the petiitoners’ request for a ruling . as to the constitutionality of its ‘‘fairness doctrine’”’ * the Commission stated (A 48): : 66h & & ‘4, Finally, you have. requested,a ruling by the Commission as to the constitutionality of the fair- _ ness doctrine, as applied to this situation. We discussed the constitutionality of the fairness doc- _. trine generally in the Report on Editorializing, 13 ¥F.C.C. 1246-1270. We adhere fully to that dis- cussion, and particularly. the considerations set out in paragraphs 19 and 20 of the Report. “We believe that the discussion in those para- as is, gern Bee nig se to our ruling in this | The oes not involve any prior re- — ctraint. The th Amery ‘is free to select. what con- troversial issue should be covered, and whether coverage of that issue should include a personal attack. The ruling simply requires that if the licensee does choose to present a personal attack, the person attacked must be notified and giventhe , opportunity for comparable response. ‘The ruling provides that\ if sponsorship is not forthcoming (see p. 2), the rson attacked must ' be presented on a sustaining , because, in line with the above cited discussion in the Editorial- | ‘ izing Report the paramount public interest is that the public have the opportunity of hearing the other side of the controversy, and ¢ emental fair- ness establishes that the person attacked is the - appropriate spokesman to present that other side. Since this personal attack situation is the only area under the fairness doctrine where the licensee does not have discretion as to the choice of spokesmen, \ the Cemntission has carefully limited the ap- ‘plicability-of the personal attack principle to those situations wherehere is an attack upon a person’s ‘honesty, character, integrity or like personal. qualities:’ See Part E, Personal Attack Principle, | Dairhens Primer, 29 F.R. 10415, 10420-21. The principle i is not applicable simply because an indi- - vidual is named or referred to, or because vigorous _ exception is taken to th@swviews held by: an indi- souls Wii cteatiar ams itaned ODEO OTE A Ra A ee vidual'or group. Ibid; see also letter to Pennsyl- - Vania Community Antenna Association enclosed. oA broadcaster has sought the license to a valuable ‘ public frequency, and has taken it, subject to the obligation to operate in the public interest. Valu- able frequency space has been allocated to broad- action, holding that it was authorized by the Communi- stitutional ngs. (A satire ° ‘. _ is to prevent previous restraints-on publication, and, in _ particular, legal devices and doctrines which in their doctrines, which require a man‘ to speak at his peril _ _\. the Commission constitute a doctrine and device offen- . | sive to these principles and to the First Amendment. ‘ The-Commission has imposed upon the petitioners the ’ burden’ of seeking out the subject of a ‘‘pergonal at- oer cnahiiig in ‘midi part, so that it may con- tribute to: an informed electorate. Report on Editorializing, 13 F.C.©, 1246-1270, par. 6. “Viewed against these fundamental précepts, our ruling is, we believe, reasonably(gelated to’ the public interest ‘in the larger and more ‘effective use of radio’ (Section 303(g) of the Communica-. tions Act). Since that is 90, it isa requirement: | fully consistent with the Constitution. NBC v. United ‘States, 319 U.S. 190, 227.”” (A48, 49) The Court of Appeals sustained the Commission’s - eations Act, and’in particular by Section 315(a), 47 USC 315(a), and did not violate the petitioners ¢ con- ” . SUMMARY OF. ‘ARGUMENT - Radio sii radio broadcasters are included in the press whose freedom is guaranteed by the First Amend- ment. The fundamental purpose of the Amendment application- have the collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it. This Court has been strict arid vigilant in striking down such devices and and to engage in self-censorship by making only bland stateme: t steer clear of an unlawful zone. The fuling and order applied to the petitioners by tack’’ broadcast: over the petitioners’ radio station, air ite him a copy, — or oummnary of the e | ; oe sae a offending broadcast, agi theresfter: providing him free \ time in which t6.respond. This burden is-imposed on | A the pétitio ers,. éven though the statements contained in the broai may have beén'true or may have been. . “Imade and broadcast in the good faith belief. that they - were: 4rue, so that the person who made the attack is _ immune from a-suit for libel. In addition, the peti- tioners are ‘subject to the imposition of sanctions: by the “Commission ‘ih the. event they fail to comply: with the. | ,Commission’ 8 order. 7 The ‘Commission’ 's order goes. beyond ¢ a ‘Sewevions oe restrain ’? on free speech. It dictates to the petitioners, ‘as to what the contents of a program shall be and who* . the speaker shall be. No\matter how fairly and com- -.. pletely the petitioners in other programs and broad- ‘easts may have presented the case. for the ‘subject of the “‘pérsonal attack”’, they are told that he, and he - alone, must be given time forareply. Thisis precisely the “dictation as to what should go into particular ' programs” ‘which: Chafee accurately characterizes as ‘‘the sort of censorship which went on in n the seven- | teenth cetpry in England.” ~ The ruling applied -to the petitioners apiblien with equal force to radio commentators, news interview pro- grams, and, documentary programs. ‘Such programs contain many statements which can be construed as . ‘‘personal attacks’’ upon individtals.or groups. - To steer clear of the difficulties and expense resulting from ‘personal attacks” the participants in these programs . . will be constrained to confine their remarks. to praise and platitudes. The inhibitory. force of the Coliinteaton’ S iaaieied | attac ’’ doctrine is enhanced by its vagueness. The . definition of a “personal attack’’ as ‘‘an attack on an 2. | 15 . individual’s or group’s honesty, character, integrity, - : -. ‘or like personal qualities’’ is broad enough to include almost any criticism of an- individual’s actions on activities. This Court has condemned such broadly worded restrictions upon the ground that they offer no security for full discussion, blanket with uncertainty whatever _ be said, —_ compel a speaker to — and trim. - . a ‘The Commision and the Congress have aioe the inhibitory impact of a rule requiring broadcasters : to grant free time. Thus, it was recognized in 1959 that ‘‘a blackout in the presentation-of legally qualified candidates in the news-type promaahy ’ would result from a-ruling by the Commission that_d television sta- _ tion which used a brief newsclip of a candidate’s ac- tivities was required to grant equivalent free time to all opposing candidates to use the station as they saw fit. To correct this interpretation of the Communica- tions Act: by the ae the Gongress amended the Act. : ‘In summary, the ‘inevitable result of the. Commis- -* sion’s ‘‘personal -attack’”’ rule as applied to the peti- _ tioners will be that broadcasters will tread cautiously, _ . staying as far as possible from the dangerous and ill- . defined zone labeled ‘‘personal attack’’. In order to be. . safe, radio stations.and broadcasters will be required .. @ be bland and innocuous. The resulting self-censor- - ship, imposed by the Commission, will be none the less | virulent for having been self-administered. Such a ‘regime is at war with the uninhibited, robust, and wide- _ open debate and discussion that are rere ananen by the First Amendment. ‘The fact that as licensees the lta are subject to regulation does not justify the Commission in abridg- «16 ing the exercise of free spéech over the petitioners’ radio station. First Amendment rights may not be _ denied merely because they are tangled with conduct _ which the government may regulate. The Court has _ applied this principle in striking down, as abridgments of First Amendment rights, restrictions on conduct on the public streets and in public parks, and attempts to | ympose conditions upon the’ use of the ‘mails. The Commission cannot justify its “personal attack”’ ~- rule by limiting its applicability to those situations where there is an attack upon a person’s ‘‘honesty, | character, integrity-or like personal qualities.’’ Such a personal attack stands on_no different footing, and is: entitled: to no lesser protection under the Firet ——— ment, than any other speech. — 4 In ¢ any event, the Cominission has simatiay failed to demonstrate that there is any. overriding or. compel- _- ling public interest which requires the imposition of re- ‘straints or sanctions upon radio broadcasts of personal attacks. That the Commission thinks such regulation desirable and in the public interest is not conclusive. In-many cases this Court has disagreed with similar judgments. by state legislatures or ee authori ties. The Gommission is mistaken in the relianee upon statements in the ‘opinion of Mr. Justice Frankfurter - in National Broadcasting Company v. United States, 319 U. S. 190, 215, 216, 226, 227 (1943), which the Com- mission claims justify i ‘‘nersonal attack’’ rule. Read in context, thege statements do not ‘support any attenipt . - to control the contents of programs or impose any pre- vious conditions or restraint upon broadcasts; they mean = that the Commission may — upd the ners character of the persons participating in broadcasting and regulate their méthods of competition. ) - The Commission-is also mistaken in its reliance upon the fact that the number of broadcast frequencies is limited, from which fact the Commission apparently reasons that broadcasting facilities are also limited, and this being so the Commission may. impose upon broadcasters conditions and restraints that would not be permissible -in the case of newspapers. The Com- mission argues that, such regulation of broadcasting is necessary in the public interest, to assure that pro-— _ grams are fair and balanced and present both sides of, controversial issues. The petitioners submit that First Amendment rights may ‘not be abridged, whether the number of broadcast stations be large or small. In any event the fact is that there are 6253 commercial radio and television stations in the United States, com- pared to only 1754 daily newspapers, a ratio of better than 314‘to 1. Diversity of speech and opinion én the air is therefore assured, without interference by the Commission. — conn : | . If Section 315(a) of the Communications Act of . 1934, 47 USC 315(a), as amended in 1959, or any other provision of the Act, purports to authorize the -Commission’s order, then for the reasons set.out above the statute is pro tanto uneonstitutional. _ However, contrary to the contention of the Commission in the — eourt below,: the history of the 1959 amendment to Section 315(a), as disclosgd in committee reports, clearly demonstrates ‘that the amendment was not in- - tended to guthorize, and did not authorize, the Com- — mission’s ‘‘personal attack’’ ruling, which was not promulgated until 1962. : . “~ é ° . . tind : > ° R ce ° 18 ARGUMENT _ The Rellag and Order of the Federal Communications Com- . mission, as Applied to the Petitioners, Constituted an Abridgement of Freedom 6f Speech and of the Press in , Violation of the Petitioners’ First Amendment Rights There can be no doubt that radio and radio broad-. : casters aré included in the press whose freedom is _ guaranteed by the First Amendment. United States v. Paramount Pictures, 334 U.S. 131, 166 (1948) ; Su- perior Films v. Department of. Education, 346 US. - 587, 589 (1954).* As Chafee put it, speaking of the impact of the Amendment on the Federal Veen tions Commission “+ ie Specifically the First Amendment prevents the FCC from engaging in two kinds of activity. The. first of these embraces what Congress had in mind. when it forbade the Comniission to exercise ‘cen- _gsorship’ over radio communications. This means, I feel sure, the sort.of censorship which went on in the seventeenth century in England—the de- letion of specific items and dictation as to what . should go into particular programs. Such super- vision of details is in no way part of the Com- mission’s job of allocating wave lengths: On the other hand, the statute does not forbid evaluation of the total performance of a station, which is an incidental feature ‘of this job of parceling out the ~air.”” Chafee, Government & Mass Communica-' tions (1947), page 641: (footnote omitted) ' The fundamental purpose of the First Amendiment is to-prevent previous restraints upon publication. _ Near v. Minnesota, 283 U.S. 697 (1931). ‘The free- 3 Moreover, ‘the liberty of the press and. of speech is within the- liberty safeguarded by the due process clause of the Fifth Amend-__ - ment. Cf. Near\v. Minnesota, 283 U.S. 697 rt Grosjean v. Ameren Press Co, scsi Ss. 233 = . . . — on ° ys nd . ee > AO BER ME CDE OL O IE LOLE OLA EOE BALLER PILE ALES, OLE VEN GE oS, _ A’ Ow a 5 « 19 dom of speech and of the press guaranteed by the Con- stitution embraces at the: least the liberty’ to. discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punish- | ment.’’ Thornhill v. Alabama, 310 U.S. 88, 101, 102 (1940) ; Roth v. United States, 354 U.S. 476, 488 (1957). And this Court has on many occasions condemned, as previous restraints, ‘‘legal devices and doctrines” which — in their application ‘‘haye the collateral effect of in-— _hibiting the freedom of expression, by making the in- dividual the more reluctant to exercise it.’’ Smith | v. California, 361 U.S. 147, 150, 151 (1959). ‘The Court . has been both strict and vigilant in striking down such . - devices and doctrines. As the Court said in Smith v. - California, 361 U.S. 147, 151, 155 ‘¢* * * And this Court has intimated that stricter ; standards of permissible statutory vagueness may be applied to a statute having a potentially in- | hibiting effect on speech; a man may -the less be required to act at his peril here, because the.free dissemination of ideas may be the loser. Winters © “wv. New York, 333 GS 507, 509, 510, 517, 518, * * * “We have said: ‘The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and " - are indispensable to its continued growth. . Cease- less’,vigilance is the watchword to prevent their ‘ erosion by Congress or by the States. The door barring federal and state intrusion into this area . _ eannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent éncroachment upon more important in- — | terests.’ Roth v. United States, supra ( US ; at 488). * & &.99 ' Applying these principles the Court in Smith v. Cali- | forma, 361 U.S. 147 (1959), struck down an’ ordinance making it unlawful for kseller to have in his . 2. ~ gtore-any obscene book, even though he was not aware of the contents of the book. ‘For if the bookseller is criminally liable without knowledge of the contents, and the ordinance ful- . fills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction uppn the ' distribution of constitutionally protected as well as obscene litenature. ” 361 US. 153 ° ~ 7 peer in Speiser v. Randall, 357 U.S. 513 (1958), the Court held unconstitutional, as an abridgement of free- _ dom of speech, a provision of the California Consti- tution which denied a tax exemption to one who de-. clined to swear that he did not advocate the overthrow . of the government of the United States or of the State by force or violence or other unlawful means, oe» -. nor advocate the support of a foreign government _ against the United States in event of hostilities. The. Court: ‘said : " “To deny an canteen k to claimants who engage in certain forms of speech is in effect to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this | speech. ” 357 US. 518° . Similarly, the Court held invalid an: n ordinance for- bidding the distribution: of any handbill which did not have printed thereon the name and address of the person who prepared;distributed or sponsored it. Tal- ley v. California, 362 U. 8. 60 (1960). The Court said a 362 U.S. 64): J : ‘There’ can be’ no “doubt that such an ideuitifies- tion requirement would tend to freedom to distribute information and thereby’ freedom of : — = aan ae _ a | & Further safeguarding freedom-of speech and of the _, press\the Court held‘in New Y ork Times Co. v. Sullivan,. 376 U.S. 254:(1964),-and Curtis Publishing Company - v. Butts, 388 U.S. 130 (1967), that one who makes'a | personal attack upon a public figure is immune from a suit for damages for libel unless he speaks or writes - with’ actual malice—that is with knowledge that, his’ statement is false, or with reckless disregard of whether ‘it is false or not. In so ruling the Court took into _ eonsideration ‘the ‘“profound national commitment to the principle that debate on public issues should be un- inhibited, robust, and wide-open, and that it- ‘may well include vehement, caustic, and sometimes unpleasantly : ; sharp attacks on government and. public officials.” . — - New York Times v. Sullivan, 376 US. 254, 270. Re- jecting a rule compelling the critic of official conduct to prove the truth of his factual assertions, the Court held (376 U.S. 279) that such a: rule would lead to ‘‘self-censorship”’, for ‘would-be critics of official con- duct may be deterred. from voicing their criticism, it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which ‘steer 2 | far wider of the unlawful zone.’ Speiser v. Randall, supra, 357 U.S. at 526. The rule thus dampens the | vigor and limits the variety of public debate. It is inconsistent ° with the First and Fourteenth Amend- ments. ”’ When these principles are applied to the device and doctrine invoked by the Commission in its order to the petitioners it is apparent that the actions of the Com- - mission are in violation of the First Amendment rights of the petitioners. The petitioners have been told by the — | x” even. though it is believed to be true and even though. _ eT Et ER AL TY ARLES PR AGLI Seal TY Fea pn on SO 8 Brg Ee rrwemget 22 Commission that having carried on their radio station a program containing a ‘‘personal attack’’ on Mr. Cook _ they must seek him out, furnish him a copy,. recording . or summary of the broadcast and-grant him free time © for reply, irrespective of his ability to pay. This ‘ obligation is imposed upon the petitione?s, even though ' the statements contained in the “‘personal attack’’ may have been true, (see opinion of Judge Tamm,. A121, 381 F. 2d 925) or may have been broadcast in the good- faith belief that they were true. At the same time, - under the rule of the New York Times and Butts cases, Mr. Hargis, who made the attack on, Mr. Cook, is immune from a suit for damages for libel unless Mr. Cook can prove that the Hargis statements were false -- and were made with knowledge of their falsity or with reckless disregard of whether they were true-or not. us, the petitioners are subjected to a burden‘ or nulty, cottsisting of the expense involved in locating the subject of the personal attack, furnishing him with a script, recording or summary of the broadcast, and thereafter granting him free time in which to reply— time which otherwise might be allocated to a paying: Sponsor. Furthermore, and equally important and menacing, is. the fact that failure to comply with the Commission’ s order may’ ultimately result in the im- * Judge oy in his opinion concédes that ‘‘* * * I readily agree | that the compulsory granting of free time may, and probably does, ~ impose a burden on the licensees. This burden, however, is not an unreasonable one.’’ A124, 381 F.2d 926. Cf. Frantz, First Amendntent in-the Balance, 71 Yale L.J. 1424, 1449: ‘ON only does a ‘balancing’ first amendment fail to protect freedom of speech, but it becomes a mechanism-for rationalizing and validat- - ing the kind of ‘governmental action intended to be prohibited. “‘Such are the consequences of distorting the amendment’s thunderous ‘Thou shalt not abridge” into a quavering ee if you must, but try to keep it reasonable’ ”’. : . 7 j s, . F PPTL at eRe ie i ae one 3 ° _ position of sanctions — the sittin te the Commission.° Indeed, the Commission ’s ruling goes beyond a pre- _ Vtous restriction ; it dictates to the petitioners what the contents of a future program must be,-and who the speaker must be. Even though the petitioners may have’. broadeast a full and fair presentation of conflicting views with respect to Mr.’ Cook, his activities and his writings, and Mr. Hargis and his program, this will — - not satisfy the Commission. The petitioners are ordered to permit Mr. Cook himself to reply to the attack on him. This we submit is precisely the ‘dictation as to what should go into particular programs’ and ‘“‘supervision of details’? which Mr. Chafee accurately . characterizes as ‘‘the sort of censorship which went, on in the seventeenth century in England.’”” (Chafee, Government and Mass Communications (1947), p. 641) As Mr.-J tistice Frankfurter put it in his concurring ‘opinion in Smith v. California, 361 US. 147, 161, 162 (1959), ** * * * 4 ease before this Court is not just a case. Inevitably its disposition carries-implications ‘and gives directions beyond its particular facts.’’ We therefore briefly consider the implications of a de-g cision sustaining the action of the Commission in thisg The doctrine applied by the Commission in its ruling, as stated in its letter of October 6, 1965 to the peti- _ tioners,.is (A38, 39) : ‘‘* * * The licensee, with the exteption of appear- ances of political candidates, is fully .responsible for all matter which is broadcast over his station, including ‘broadcasts containing a personal attack. 5 By revocation of license (47 U.S.C. 312(a)), denial of applica: tion for renewal (47. U.S.C, 308, Tt and ‘possibly by Sntacial - penalties (47 U.S.C. - 608(0). 24 The latter is defined i in our recent fairness} primer as an attack ‘.«. . on an individual’s or’group’s honesty, character, integrity, or like personal qual- _ ities .. .’ in connection with a controversial issue of public importance. See part E, Personal At- tack Principle, ‘Applicability of thg Fairness Doc. - trine in tp Handling of Controv@tsial Issues of Public Importance’, 29° F.R. 10415, 10420-21. A copy of this document i is enclosed. ‘Where such an attack occurs, the licensee has an obligation to inform the person attacked of the at- tack, by sending a tape or transcript of the broad- east, or. if these are unavailable, as accurate a ‘summary as. possible of the substance of the attack, and to offe him a comparable opportunity to re- . spond. Ibid. The licensee may not delegate his’: responsibilities in this respect to others. Report on ‘Living Should Be Fun’ Inquiry, 33 FOC 101, -107.”’ As Columbia icin Sestian, Inc., has ‘tinted out in its brief and exhibits filed amicus curiae in sup- - port of the petition for certiorari, the ruling applied to the petitioners would apply with equal force to radio commentators, news interview programs, and docu- - mentary programs. Examples of. such programs are Mr. Eric Sevareid’s commentary, the’news interview program, Face the Nation, conducted by Mr. Martin, _ Agronsky, and the CBS news documentary programs, such as CBS Reports and CBS News Specials. Such programs must inevitably contain, and in’fact do con- tain, many statements which can be construed as ‘*per- sonal attacks’’ upon individuals or groups.” ®See Memorandum amicus curiae on behalf of the Columbia ~ ‘Broadcasting System, Inc., and pp. 23 et seq. of the brief for Columbia Brogdcasting System, Inc.,,in No. 16,498, United States Court of Appeals for the Seventh Cireuit, filed as an exhibit with . this Court. J a 25 ~ The chilling effect of the Cemsiitaitin s vebiaiis on 1 Sitch commentators and programs is obvious. If Mr. Se svareid, fov-example, questions a politician’s sincerity does this constitute an attack on that individual’s ‘‘honesty, character, integrity or like personal quali- ties’? and must every station earring the Sevareid broadcast make available free time for him to reply %- If a guest on Face the ‘Nation. asserts that:a public ‘Official has been responsible for a “‘eredibility gap’’ _ must the network make free time available to the official ‘in question? . How much time must be offered in these - eases? What other scheduled program or program ma- _ terial must be displaced or deleted to provide the neces- casters will be great, to steer clear of such questions | and guard against the difficulties and expense resulting | *?: : from a ‘‘personal attack’’, by confining their remarks | ‘ to praise and platitudes. 7™ Mr. James Reston in his columa i in the New York Times, Friday, December 22, 1967 notes that : ‘«# # © when President Johnson said on his la ational TV ‘broadcast that he ‘didn’t know what the effect of the Kennedy- McCarthy movement is having in the country’ but that he did ‘know of the interest of both of them in the Presidency and the ambition of both of them,’ Senator Eugene McCarthy’s 9 campaign mdhager demanded that the three major TV net- works give the Senator a half hour of free time on the ground = that This was a ‘personal attack’ on the Sengtor. C.B.S. is ‘ ‘ saying no and for good reasons.’’ ce . Mr. Reston comments: ‘What is ‘an attack?’ How do you define ‘hohesty, character, integrity or like personal qualities? Suppose Eric Sevaried, # in a moment of reckless impetuosity, were to suggest one night ° that Jimmy Hoffa and’ Bobby Baker are men of dubious char- cy acter, and Jimmy objects—is C.B.S. to set up a. color camera in jail and let Mr. Hoffa proclaim his integrity to the nation?’’ sary time? The pressure on commentators and broad-: sce ples — Bi ~The e inhipitory Snes of the. nininiadonn’ 8 ‘personal attack’*d: is enhanced by its vagueness. What _ contained in Webster’s New. World Dictionar: (1957) - are: ‘‘moral constitution; moral’ strength ; ; self-disci- pline, fortitude, etc.”’ Applying these definitions it tack upon his ‘‘character’’. Furthermore, the Commis- sion has expanded the boundaries of the dangerous ae ‘son an individual’s or group’s — ae honesty; character, integrity or like personal quali- - . ties’?? Among the relevant definitions of ‘‘character”’ _ would seem that almost any criticism of an individual’s - activities or actions might well be. construed as an at-- _ ground almost to infinity by adding ‘‘like personal : ° qualities’ to the catalogue of _—— —_— which are covered by its doctrine. — The inhibitory effect on free speech of broadly. worded: restrictions is well illustrated by Thomas v. Collins, 323 U.S. 536 (1945). That case involved a: Texas statute requiring a -labor. organizer to register _and ‘procure an. organizer’s card from; 2 State official before “soliciting” persons to become. members of a 2 labor union. Holding the statute unconstitutional when . | eth ‘applied to a speech by. the president of a unton, the _. Court said (323 US. Sd see “Furthermore, ‘whether words intended a. '. signed to fall. short of invitation would miss that _. > Mark isa question both of intent and of effect.. No ' ‘speaker, in such circumstances, safely could assume ‘that anything he might say upon the general - subject would not be understood’ by some as an - -- invitation. In short, the supposedly clear-cut . distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these ’ eireumstances wholly at the mercy of the varied understanding of his hearers and en of ha iste oe hy old AR a Nm Me Nate were — — f x. sihiabnanee inference may be drawn as to his intent | and meaning. ‘Such a distinction‘offers.no ienitier for res ‘ae cussion.. In these conditions it blankets with un- - - certainty whatever may be said. It compels the is speaker. to hedge and trim.’’ 7 Keyishian v. Board of Regents a New York, 385. Riz S. 589 (1967), is likewise instructive. In that case the Court struck down a New York. plan requfring: dr ‘authorizing the removal of members of the faculty of state institutions who were guilty of “‘treasonable’’ or: ‘seditious”’ utterances or acts. The Court ‘said (385 " US. 589, 601) : “* * * The very intricacy of the plan and the un- certainty as to the ‘scope of its: proscriptions make _ it a highly efficient in terrorem mechanism. It - would be.a bold teacher who would not stay as far _as possible from utterances or aets whi might - jeopardize his living-by enmeshing him in this i in-_. tricate machinery. The uncertainty'as to the utterances and acts proscribed increases that cau- tion in ‘those who believe the bocaaar law means what it says. aougtt The Federal: Communicatjons Ocinininnton and the ; Congress have reeognized the inhibitory impact of a <. rule requiring broadcasters to grant free time. In 1959 the Commission in the so-called. Lar Daly case® held that Section 315(a) of the Communications Act of “ 1934 obliged a television station’ which used a brief newsclip of a candidate’s activities—without the‘candi- date’s prior knowledge or consent—to provide equiva-: lent free time to all opposing candidates to use the sta- @In the Matter of Petitions of Columbia Broadcasting System, ‘ Ine., and National Broadcasting Co., 26 FCC 715. ‘( v) ei ae ae | tion as: oor saw 7 fit. pom promptly overturned 7 this ruling by amending Section 315(a).. Public Law 86-274 ; 73 Stat. 557 (1959) In its report on the amend- -atory bill ($4424) the Senate Committed on Interstate and Foreign Commerce pointed out that the result of the Commission’s ruling would-be ‘‘a blackout in the . presentation of legally qualified candidates i in the news- type prograns.”” The Oomnhittee. stated: | “Byen the Federal Communications Commission recognizes that its present rigid interpretation of equal opportunity under Section 315 does consti- tute a deterrent to stations permitting the use‘ of their facilities by legally qualified candidates: The - _ inevitable consequence is that a broadcaster will _ be reluctant to show one political candidate in any news-type program lest he assume the burden of » presenting a ‘parade of aspirants.’ Senate — : — No. 562, July 22,1959. “In summary, the idievilable seit of the Cominis- sion’s (“personal attack’? ruling as applied to the peti- tioners will be that broadcasters will tread. cautiously, . ~. _. staying as far:as possible from -the dangerous and ill-. _ defined area labeled ‘‘personal attack’’. In order to be safe, radio stations and broadcasters will be required: to be bland: and innocuous, for if a mistake is made, — and what the Commission construes as a “‘personal at- tack’’ is committed, the radio station, and every. sta- tion carrying the broadcast, will be required to grant ‘free time for a response, and perhaps to a parade of respondents.” _ The resulting self-censorship, imposed ~ by the Commission, —, be ‘hardly less virulent for © CL Formers Union v. WDAY, 360 U.8.-525, 530 (1959) : ‘Quite possibly, if a station were held responsible for the broadcast of | libelous material, all remafks even faintly objectionable would be excluded out of an excess of caution.’ having been. privately sitestuianiees:* Smith otal € forma, 361 U.S. 147, 154 (1959). Adopting the lan- .. guage of Mr. Justice Douglas in Lamont v. Postmaster - | General, 381 U.S. 301, 307 (1965), we submit that such _a regime ‘‘is at war with the ‘uninhibited, robust, and wide-open” debate and discussion that are contemplated by: the First Amendment. New. York Times Co. v. ? | Sullivan, 316 US. 254, 270.” The Grounds Upon Which the Commission Seeks To Justify Iis ; “Personal Attack” Doctrine Are Untenable ans - The argument, of the Commission in the Court below, - which was accepted by the Court and d presumably will be repeated here, was that : “Radio broadeasters, ae by utilizing the limited 3 ‘. ‘number of publicly-owned broadcast facilities and © _ operating on a license valid for a limited period, carry on their. programs as trustees for thie os public - -at large because of the Commission’s determination that each licensee’s operation will promote the pub- lic interest. . RE bap heapengy veneria as Yh spasearsh trustees, ' form the bensficdaties of the tausboesdiin, id est, the ‘7 public, of the different attitudes and viewpoints which are held by the various groups which make - up the corumunity. * * *” (Opinion of J _ | Tamm, A127, 128; 381 F2d 928) The ‘Commission’ s reasoning is that being subject to - regulation broadeasters as a corollary may be subjected. ~ to the ‘‘personal attack’’ rule. The argument,.we sub- mit, involves a non sequitur. While it is of course true. - _ that radio broadcasting is subject to governmental regu- . lation (National Broadcasting Co. vy. United States, 319 U.S. 190 (1943)) it does not follow that the right to regulate is unlimitedy and surely it cannot be said that regulation may abridge theexercise of freedom of speech and of the press ‘by a radio’ station or broad- grams, directly or indirectly, or by imposing pteyious - restraints upon free speech over radio. , Aone ‘Court is familiar with the argument that one ) uses a publie facility under a license subjects him- to regulations. abridging his right of free speech. - G easter, by controlling or dictating the contents of pro- | ve Mr. Jusfice Jackson observed in his concurring ~ opinion ‘in Thomas v. Collins, 323 U.S. 516, 547 (1945) : “Tt ig not often in this country that we now meet with direct and candid efforts to stop speaking or publication as‘such. Modern inroads on these rights come from associating the speaking with - _ gome other factor which the » Aire may regulate so - as to bring the whole within official control.” ‘The Court hen consistently held, however, that ‘when the exercise of First Amendment rights is tangled with conduct which government may regulate, we-refuse- to | allow the First Amendment rights to be sacrificed merely because some evil may result. Our insistance is that the regulatory measure be ‘narrowly drawn’ to meet the evil that the government ean control. Cant- well v. Connecticut, 310 U.S: 296, 311.” Or as the Court said in De Jonge v. Oregon, 299 U.S. 353, 364, 365, om: when speaking of First Amendment rig SR the —-— ) ___legislative intervention-can find constitutional justifi- cation only by dealing with the abuse. . The rights them- selves must not be curtailed.’ -Mr. Justice Douglas, ‘dissenting in United States v. International Union, 352 U.S._567,. 596 (1957). Thus in the Cantwell case the Court struck down, as an abridgement of Cantwell’s First Amendment rights, an ordinance restricting his - - conduct. on a public street. Similarly, in Hague’ v.- ; ‘ : ‘ ‘ -CL0., 307 US. “496 (1939), while recognizing : that = ctoba and yeeade ieee ak eae eet the .. public and that conduct therein is'subject to regulation, @ Court held that municipal officers were properly joined: from enforcing ordinances forbidding the dis- tribution of printed ‘matter or holding meetings in . streets and parks without a permit. Again in Schneider v. State, 308 U.S. 147 (1939) the Court ruled ‘‘that the : ‘purpose to keep the streets clean and of good appear- E : ance is insufficient te justify an ordinance which pro- - hibits a person rightfully on a public-street from hand- ing literature to one. willing to receive it.”’ 308 U.S, . 162. ‘ See also Lovell v. Griffin, 303 U.S. -444. (1938). _ And in Lamont ‘v. Postmaster General, 381 U.8. 301° (1965), the Court held that the use of the mails: may - not be conditioned upon a requirement that operates as ~ _ a limitation on the unfettered exercise of First-Amend- | - ment- rights. - Cf. Hannegan-v- ‘Esquire, 327 U. S.. 146 ge «1946)2 ae 4 There are limitless and dangerous implications i in the Commission’ 's argument that since a, broadcaster uses. a public frequency under a license the Commission 1 may ’ ‘in the public interest’’ compel him to comply wi the : “‘nersonal attack’’ doctrine. The same argume ould justify almost any interference by: the Commission with 3s : —_——~programs concerning public affairs; the Commission would be restricted only Dy its own concept of what constitutes the ‘‘public interest””— at: least, in the ab- | 10 See Mt. Justice Harlan, ditmiating int Both v. United States, 4 te U.S. 476, 504, Footnote 5, (1957) ‘‘The hoary dogma of Ex parte : Jackson, 96 U.S. 727 and Public Clearing House v. Coyne, 194 U.S. ' 497, that the use of the mails is a privilege on whiich the‘ govern- ment may impose-such conditions as it chooses, has long since. - evaporated.’’ eps cones) ’ . . s - el § PM ihe en ret , HE RTE CMO ale a eee i nati aera 2 seen Fe ate ntaics eS yee. w é * . } sence of litigation. . ‘True, the Oosiimisaion i in its letter gr to the petitioners (A48, 49) ‘stated that doc wa “* * * Since this sverminial \tinek: situation is ‘the. only area under the fairness doctrine where the . licensee does not have discretion as to the choice - Pa ‘of spokesmen, the Commission has carefully race are limited. the applicability of the personal attack . . ie aa principle to thoge ‘Situations where there is an _~ inte oY attack upon a person’s ‘honesty, characte rity or hike | ages qualities.’ * * ** Lattac Platidle om ito dittesent toot- is entitled to no lesser protection under the ~ i ‘rst Amendment, than any other speech. Cantwell v. Connecticut, 310 U.S; 296: (1940) ; Near v. Minnesota, 283 U.S. 697 (1981) ; ; New York Times Co. v. Sulliwan, 376 U.S. 254 (1964) ; cf. Winters v. New York, 333 U.S. | 507, 510 (1948)." The Commission’s attempt te justify : \..: its “personal attack” doctrine as a modest and reason- =§=—S si‘; ie _-. able intrusion upon First’ Amendment rights, applying ~ 2: only to certain ‘‘personal attacks’, is a striking illus- 7 tration of the danger of opening the door barring th. “er of free speech, ee ¥ In’any event, the Commission has completely failed to. demonstrate that there is any overriding or com- | _ -pelling public interest’ which requires the imposition of -. restraints or sanctions ‘upon radio broadcasts of per- sonal attacks. ' That the Commission believes such ac- : : 1 Though we can see » nothing of any possible’ awe to soli in these magazines, they are as much entitled to the protection of free speech as the,best of literature.’’ (333. U.S. 510). . Cf. also Mr. Justice Douglas dissenting in United States v. International - Union, 352 U.S. 567, 597, ‘‘First Amendment rights are part of the . heritage of all pergons and groups in this country. They are not to be dispensed or withheld merely because we or the Congress ; thinks the — or group is uals or en cai : q if A ; me Eos 7 ties deabiilite and in the publife* ii lesi is of course _ not conclusive. No doubt‘the legislatures or municipal — _ authorities believed it was desirable and in the public » ~ inte enact the statutes or’ regulations’ which this — : "__ Gotirt struck down in’ Bates v. Tittle ‘Rock, 361 U.S. |. ae 516 (1960); NAACP v. Alabama;357,U. §. 449 (1958); . Talley v. Califorma, 362 US. 60 (1960) ; and Mills v. Alabama, 384 U.S..214 (1966). Phis aiiges however, = was constrained to. disagree. é In its letter to the petitioners (A49) in the Court below the Commission relied upon | found in . National Broadcasting Company v. U: nited States, 319 US. 190, 226, 227 (1943). There, ‘a ‘Justice Frank- ' furter wrote: — . Ais “Freedom of utterance is abridged + to many who. / >... ‘wish to use the limited facilities of radio. Unlike eae other modes of expression, radio inherently is flot oe available to all. , That is its unique characteristic, . , and that is why unlike other modes of expression, it is subject to governmental regulation. -Because ‘it cannot be used by ail, mE aeereale . must be. denied.” . = gis _ Earlier in the same opinion Mr. J ustice Frankfurter . stated: : ‘ ‘‘But the Aet does not seatrist the Cieenateston merely to supervision of the traffic. It puts upon the Commission the burden of determining the composition of that traffic. | The facilities of radio are not large enough to acéommodate all who wish to use them. Methods must be devised for choosing from among the inasiy who apply. 319 U. 8. 215, 216. “We submit, however, that iets statements must be — eae read i in context. The Court in the National Broadcast- Lt ya ‘ eee” ing Company case was sicabdichig the validity. of the ° ‘Commission’s Chain Broadcasting Regulations. here was’ no question of any attempt to control the contents -of programs or impose any previous condition-or re- straint upon broadcasts. We submit that Mr. Chafee’s - -.. analysis of the matter is sound. ceri to Justice , Frankfurter’ s ‘statements, ‘Chafee wrote: pathy « “Did Justice Frankfurter mean to say - that the . _ *FCC could control the contents of programs, con- ’ ‘trary to what Justice Roberts had said a few years before, as quoted above? Or-did he have in mind the character of the’ persons participating in broad- casting and their methods of competition? The latter sense seems to me more probable and need cause no alarm.’’ (Chafee, Government and Mass Communications, 1947, p. 580) dl ‘oe 7 .’ The statement by Mr. Justice Roberts, to which Mr. Chafee referred, appears in Federal Communications Commission v. Sanders Brothers Radio Station,’ 309 U.S. 470, 475 (1940), where the Court, ae 3 through Mr. Justice Roberts, said: “But the Act [ Communications Ket of 1984): ‘does *. not essay to regulate the business of the licensee. The Commission is given no supervisory control — of the programs, of business management or of policy.”’ os It has ma eniendes; nei no doubt will ka ereista - by the Commission here, that in some way the fact that | ' the number of available broadcast frequencies is limited - makes radio broadcasters subject to regulation curtail- ing the right of free speech that would not be per- missible in the case of newspapers. Although the rea- . soning is somewhat obscure the argument seems to run that since frequencies are scarce broadcasting facilities . ‘must also be scarce, and this being so the Commission may, impose conditions and restraints upon broad- casters, to assuré that their programs are ‘‘fair’’, ‘‘bal- janced’’, diversified, and in the public interest.. In the . absence of such regulation, it.is said, there might’ not be*diversity in- the voices heard ‘on the air, and: the . . public might not hear both sides of controversial i issues. - The petitioners submit that: restrictions on freedom ¢ of ’ gpeech in radio cannot be sustained, whether the num- ber of radio stations be large or small, The First Amendment rights of broadcasters do not wax or r-wane, according to the number. of stations on the air.” As- suming that the prémise of the Commission’s argument is accepted would the Commission then have. ‘carte blanche to control the contents of. broadcasts if| there - “were only” one radio station, or a dozen, or ah ‘ed ? We think: not. In any évent the Commission’s argu-_ , ‘ment is not supported by the facts. There are 6253 © - commercial radio and television stations in the United - States, compared to only 1754 daily newspapers, a ratio of better than 314 to 1.% Given these thousands of out- _ lets for the expression of opinion over the air, ‘it flies in the face of reality to contend that diversity must be ' enforced by governmental regulation of the type iap- plied to the petitioners. It’ would indeed \be’ more logical to argue that sincé the number of daily news- papers is omparatively small and is steadily diminish- © ing the government should take a hand to assure that. all ‘spectrums of opinion are represented in the press. 12 Cf. Frantz, The First Amendment i in the Balance, 71 Yale LJ. , ~. 1424, 1449 ; op. cit. supra, note 4. 48U.S. Bureau of the Census Statistical Abstract of the United States, 1967 (88th Ed.), Nos. 737, 746... The Commission’s rules and regulations prohibif common owner- ship or control of more than seven AM, FM and TV stations.- FCC . Rules & Regulations, Secs. 73.35(b), 73.240(a) (2), 73.636(a) (2). 36 In comparing the situation-of radio bréadeasting ~ .. With that of newspapers another factor must be con- . ‘sidered. The time available for use by a broadcasting station is limited ; if a broadcaster is ordered to carry. +a particular program he obviously cannot add another’ « fifteen minutes to his broadcasting day, but must make . a_place for the program by rearranging his schedule — and omitting other ‘material. A newspaper, however, ‘is under no such’ limitation, but may add columns or . pages without difficulty.. Yet it will-hardly be sug- .. gested that because hewspapers are comparatively few in number and can without difficulty in terms of space ° carry responses to personal -attacks they may in the public ‘interest: be required to publish such a response whenever a personal attack is printed. : Tt was argued by the Commission i in the court iow, ~~ and held by that court, that the CGommission’s order toe / va the petitioners was justified by Section 315(a) of the _ Communications Act of 1934 (47 USC 315(a)) as amended in 1959. (Supra, p. 3) The theory of the | » -Oo ion was that by the ameridment of Section — 315(; ngress approved the Commission’s ‘‘fairness doctrine’’ and specifically approved the application of - that doctrine in the ‘‘personal attack’’ ruling directed * against the petitioners. It was also suggested, and the ‘ court apparently agreed, (A 128; 381 F. 2d 928) that ‘the ‘‘personal attack’? rule was authorized by 47 USC © 303(g) (supra, p. 2), empowering the Commission to = generally encourage the larger and more effective use of radio in the public interest.”’ ‘We submit that these exgininenite 5 are unsound. First | . as we believe we have demonstrated, if Section 315(a) as amended, or any other statutory provision upon ‘which. the Commission may rely, has the effect con- = E33 37 - sionsheil for _ the Commotion it is to that extent un- ‘ ~ constitutional. In the second place, the history of the 1959 amendment to Section 315(a) clearly discloses that - it did not authorize and was not intended to authorize: _ - . the Commission’s personal attack doctrine. As we have said, the purpose of the amendment was to overturn _** the ruling of the Commission in the- ‘so-called Lar | Daly ‘case, that a teleyision station which used a. _ brief news clip of a candidate’s activities—with- out the candidate’s prior knowledge or consent—was required to provide equivalent-free time to all opposing candidates to use the station as they saw fit. The report on the amendatory legislation by the Senate Committee ~ on Interstate and Foreign Commerce made it plain that © ’ the purpose of Congress was to prevent the “blackout in the presentation of legally qualified candidates’’ that * would inevitably result from any such free time re- quirement. Senate Report No. 562, July 22, 1959, to accompany $2424. There is nothing whatever in ‘the report or in the history of the bill to suggest that while © amending the law to prevent one type of blackout, by - a free time requirement Congress intended to authorize - another. - F ermore, the Commission’s' personal at- tack doctrine was not articulated until 1962—three years after Congress amended Section 315(a). Clayton. W. Mapoles, 23 Pike & Fischer, RR 586 (1962) ; Fair- ness Primer 29 Fed. Reg. 10415 (1964). The Commis-., -sion’s suggestion that in 1959 Congress was fully aware © of the personal attack doctrine is. therefore untenable. In this .corinection it should be noted that in Con- . ference Report No. 1069 on the proposed amendment the managers on behalf of the House stated that the pro- - ‘ vision of the bill imposing ‘an obligation of fairness © 14 26 FCC 715. 38 upon broadcasters was merely ‘“‘a restatement of the. : ° basic policy of the ‘standard of fairness’ which is im-. - posed on broadcasters under the Communications Act -of 1934.”” In short, the amendatory legislation con- | ferred no new authority upon the Comutieston. eee CONCLUSION © | In conclusion, it is:-submitted that the order of the ‘Federal -Communications -Commission directing the petitioners to notify Mr. Cook of the personal attack upon him broadcast over the petitioners’ station, to furnish him with a transcript, recording or summary of the broadcast and to grant him free time to respond, is an abridgement of.the freedom of speech and of the press guaranteed by the First Amendment. We sub- mit that the Court should enter a judgment holding the order invalid and relieving the or of the obli- gation to comply. a submitted, ‘ Rosert E. \Manvay, . Roger Ross | Tuomas B. _Sweefizy _ Wri4141m A. Porter ° Mantel & Sweeney° = 4H. Donatp Kistuze 806 - 15th Street. N. W. Robb, Porter, Kistler Washington, D.C. 2000) & Parkinson | 7 1100’‘Tower Building Washington, D. C. 20005 Attorneys for — Petitioners e . * | ° . . . ‘ e ; t * . : 7 . r ‘ 5 - > . PP 7 : . ; : . . . . . 5 : ‘ > . | ° : ’ e : « \ : i . . e : . - 7 o : : 3 . . : ‘ : ‘ . . ‘ * | 7 | : . : ; . | - : ° , ? ; ; > , ‘ ° Ro F | id : A fe } is 2. . . < | : . | ‘ | ‘ a ‘ . ° ° - es . 6 : 3 7 : 7 ' . | ° % -* ‘ : ° - ° A * ; ° ‘ . ‘: & : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0115%3A14. Public record. Not legal advice.