414 U.S. 914 (1973), 72-1495, Yale Broadcasting Company v. Federal Communications Commission

Docket Nº:No. 72-1495.
Citation:414 U.S. 914, 94 S.Ct. 211, 38 L.Ed.2d 152
Case Date:October 15, 1973
Court:United States Supreme Court

Page 914

414 U.S. 914 (1973)

94 S.Ct. 211, 38 L.Ed.2d 152




No. 72-1495.

United States Supreme Court.

October 15, 1973


On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.

In C.C.2d 409, which was interpreted in many quarters as a prohibition on the playing of 'drug related' songs by [94 S.Ct. 212] licensees. 1 That belief was strengthened five weeks later when the Commission's Bureau of Complaints and Compliance provided broadcasters with the names of 22 songs labelled 'drug oriented' on the basis of their lyrics. 2 The industry widely viewed this as a list of banned songs, and many licensees quickly acted to remove other songs from the air as

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well. Some announcers were fired for playing suspect songs.

In April the Commission denied a petition for reconsideration, but attempted to 'clarify' its previous order. 32 F.C.C.2d 377. But although it repudiated the list of banned songs, it reiterated the basic threat by noting that 'the broadcaster could jeopardize his license by failing to exercise licensee responsibility in this area.' The nature of that responsibility was unclear. The new statement indicated reaffirmation of the prior decision, yet two concurring commissioners indicated that it restored the status quo to the March notice. It seems clear however that the Commission majority intended to coerce broadcasters into refusing to play songs that in the Commission's judgment were somehow 'drug related.' The April order suggested the prescreening of songs as one method of compliance. And in subsequent testimony before Congress, the Chairman of the Commission stated that if a licensee was playing songs that in the Commission's judgment 'promote the use of drugs,' 'I know what I would do, I would probably vote to take the license away.' 3

Still unsure of its responsibilities, but desiring to avoid distorting its artistic judgments by superimposing the Commission's vague sociological ones, petitioner Yale Broadcasting Company drafted its own station policy and submitted it to the Commission, asking for a declaratory ruling on whether it complied with the Commission's orders. The station proposed to fulfill its duties in this area by public service and news programming

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rather than by censoring its music. It elaborated its policy in a six-page statement. The Commission, finding the proposed policy too 'abstract,' declined to issue any declaratory ruling. The petitioners then brought this action, challenging the Commission's actions on First Amendment grounds, and arguing that the regulations were impermissibly vague. Petitioners also argued that they should have been the subject to formal rule-making procedures.

[94 S.Ct. 213] In Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 148, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), I indicated my view that TV and radio stand in the same protected position under the First Amendment as do newspapers and magazines. I had not participated in the earlier opinion in Red Lion Broadcasting v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), hwich placed bradcasters under a different regime, authorizing governmental regulation to ensure 'fairness' of presentation. I explained in Columbia Broadcasting, supra, the inevitable danger resulting from placing such powers in governmental hands--a danger appreciated by the Framers of the First Amendment. 'The Fairness Doctrine has no place in our First Amendment regime. It puts the head of the camel inside the tent and enables administration after administration to toy with TV or radio in order to serve its sordid or its benevolent ends.' Id., at 154, 93 S.Ct. 2080. The instant case well illustrates those dangers. 4

I doubt that anyone would seriously entertain...

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