Anti-Defamation League of B'Nai B'rith, Pac. SWRO v. FCC

Citation403 F.2d 169
Decision Date30 September 1968
Docket NumberNo. 20770.,20770.
PartiesANTI-DEFAMATION LEAGUE OF B'NAI B'RITH, PACIFIC SOUTHWEST REGIONAL OFFICE, Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, Trans American Broadcasting Corporation, Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Harry M. Plotkin, Washington, D.C., with whom Messrs. George R. Kucik and David A. Brody, Washington, D.C., were on the brief, for appellant.

Mr. John H. Conlin, Associate General Counsel, Federal Communications Commission, with whom Messrs. Henry Geller, General Counsel, Stuart F. Feldstein and Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, were on the brief, for appellee.

Mr. Mark E. Fields, Washington, D.C., with whom Mr. Samuel Miller, Washington, D.C., was on the brief, for intervenor.

Before WILBUR K. MILLER, Senior Circuit Judge, and BURGER and WRIGHT, Circuit Judges.

Certiorari Denied March 24, 1969. See 89 S.Ct. 1190.

BURGER, Circuit Judge:

The Federal Communications Commission granted renewal of the license of Trans American Broadcasting Company for Station KTYM, Inglewood, California. Appellant, the Anti-Defamation League, opposed renewal claiming that certain programs of the Licensee had contained anti-Semitic material. After investigation of these charges renewal was granted without an evidentiary hearing on Appellant's opposition.

The material challenged as anti-Semitic originated in certain 15 minute paid-time programs under the control of a commentator, one Richard Cotten. The Commission readily acknowledges that on several of Cotten's 15 minute programs of commentary he made offensive comments concerning persons of the Jewish faith, equating Judaism with Socialism and Socialism with Communism. Two broadcasts, one on October 7, 1964, and one on May 27, 1965, were singled out and transcripts of those programs were before the Commission. The League's complaint is that the Licensee did nothing to remedy these programs until the programs were called to its attention and then declined either to cancel the program or to control Cotten in any way. The Licensee then offered the League free equal time to respond to Cotten's paid broadcasts or use the time in any way it desired. The League advised the Commission that it would not accept the tender of free time.

In granting renewal of the KTYM license without conducting an evidentiary hearing on the content of Cotten's programs, the Commission explained that no dispute of fact as to the content of the Cotten program existed and no issue as to KTYM's performance was raised apart from the Cotten programs. The Commission determined that as to a specific attack by Cotten on Arnold Forster, General Counsel of the League, KTYM had violated the "fairness doctrine" because the station had failed to give advance notice of the facts to Forster or the League. However, the Commission concluded that this was an isolated violation which neither afforded a basis for denying the license renewal nor necessitated an evidentiary hearing since the station had offered free time for a reply. That offer was still outstanding when the Commission acted.

The Commission considered the broad issue raised by the League that Cotten's utterances were so contrary to the public interest that a Licensee carrying such programs should be disqualified for renewal. The Commission declared that its historic policy in conformity with Congressional authority precluded censorship of programs.

The Commission has long held that its function is not to judge the merit, wisdom or accuracy of any broadcast discussion or commentary but to insure that all viewpoints are given fair and equal opportunity for expression and that controverted allegations are balanced by the presentation of opposing viewpoints. Any other position would stifle discussion and destroy broadcasting as a medium of free speech. To require every licensee to defend his decision to present any controversial program that has been complained of in a license renewal hearing would cause most — if not all — licensees to refuse to broadcast any program that was potentially controversial or offensive to any substantial group. More often that sic not this would operate to deprive the public of the opportunity to hear unpopular or unorthodox views.

Joint Appendix 69.

The Commission went on to find that "an overall review of the stations operation" showed that renewal of the license would be in the public interest. In addition to affirming the need for KTYM's tender of free time to Appellants the Commission reprimanded the station for failure to give advance notice to the League as to the broadcast which included a personal attack on League officials.

Appellant's primary argument is that "recurrent bigoted appeals to anti-Semitic prejudice" and tolerance of personal attacks without notice to those attacked, constituted a basis for denial of license renewal and required an evidentiary hearing on those issues.

The Commission's position is that Congress does not permit a broadcaster to censor broadcasts involving attacks on persons or groups but that the fairness doctrine requires the Licensee to afford free time for response. The Commission opinion pointed to the long standing policy to encourage open discussion of all points of view, valid or otherwise, and noted that serious First Amendment questions would be raised by any policy inhibiting "robust debate."

The Commission relies also on procedural regularity as a basis for not conducting an evidentiary hearing, contending that all factual issues raised by Appellants were fully explored and that there was no dispute as to the facts which would be the subject of such a hearing.

Our examination of the record satisfies us that the Commission acted within its authority in denying an evidentiary hearing as to the undisputed facts which formed the basis of Appellant's claims. The disposition of Appellant's claims turned not on determination of facts but inferences to be drawn from facts already known and the legal conclusions to be derived from those facts.

The First Amendment aspect also deserves some comment. The Supreme Court has not defined the scope of First Amendment application to broadcasting but has intimated in dicta that it applies to licensed media.

We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.

United States v. Paramount Pictures, 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260 (1948). In Farmers E. & C. Union, etc. v. WDAY, 360 U.S. 525, 527, 529-530, 79 S.Ct. 1302, 1304, 1305, 3 L.Ed.2d 1407 (1959), the Supreme Court noted that Congress had withheld from the Commission any power to censor broadcasts.

The term censorship, however, as commonly understood connotes any examination of thought or expression in order to prevent publication of "objectionable" material. * * * Thus, expressly applying this country\'s tradition of free expression to the field of radio broadcasting, Congress has from the first emphatically forbidden the Commission to exercise any censorship over radio communication.

See also American Communications Ass'n v. Douds, 339 U.S. 382, 396, 70 S.Ct. 674, 94 L.Ed. 925 (1950); Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 641, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

Commissioner Loevinger, while concurring fully with the decision of the Commission, restated some basic propositions which seem to us unanswerable:

For the FCC to promulgate rules regarding permissible and impermissible speech relating to religion would be not only an egregious interference with free speech in broadcasting, but also an unconstitutional infraction of the free exercise clause and the establishment clause of the First Amendment.
* * * * * *
It is not only impractical — and impossible in any ultimate sense — to separate an appeal to prejudice from an appeal to reason in this field, it is equally beyond the power or ability of authority to say what is religious or racial. There are centuries of bloody strife to prove that man cannot agree on what is or is not "religion."
* * * * * *
Nevertheless these subjects will and must be discussed. But they cannot be freely discussed if there is to be an official ban on the utterance of "falsehood" or an "appeal to prejudice" as officially defined. All that the government can properly do, consistently with the right of free speech, is to demand that the opportunity be kept open for the presentation of all viewpoints. Yet this would be impossible under the rule espoused by the ADL. The present case illustrates the matter. The assailed commentator here does not ostensibly attack the Jews as a religious group, but does attack Zionists and the ADL because the latter is conducting a campaign against "right wing extremists," which is said to include that commentator. But if anyone is permitted to express views favorable to Zionism or the ADL, or unfavorable to "right wing extremists" or the assailed commentator, then the Fairness Doctrine requires that someone representing the contrary viewpoints be given the opportunity to reply. This, of course, is precisely what the ADL contends cannot be permitted. If what the ADL calls "appeals to racial or religious prejudice" is to be classed with hard-core obscenity, then it has no right to be heard on the air, and the only views which are entitled to be broadcast on matters of concern to the ADL are those which the ADL holds or finds acceptable. This is irreconcilable with either the Fairness Doctrine or the right of free speech.
Talk of "responsibility" of a broadcaster in this connection is simply a euphemism for self-censorship. It is an attempt to shift the onus of action against speech from the Commission to the
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