Banzhaf v. FCC

• Citation: 405 F.2d 1082
• Decision Date: 21 November 1968
• Docket Number: 21525,21577.,No. 21285,21526,21285
• Parties: John F. BANZHAF, III, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, WTRF-TV, Inc. and National Association of Broadcasters, American Broadcasting Companies, Inc., the Tobacco Institute, Inc., the American Tobacco Company, Brown & Williamson Tobacco Corp., Larus & Brother Co., Inc., Liggett & Myers Tobacco Co., Philip Morris, Inc., R. J. Reynolds Tobacco Co., United States Tobacco Co., P. Lorillard Co., Intervenors. WTRF-TV, INC. and National Association of Broadcasters, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Heart Disease Research Foundation et al., Intervenors. The TOBACCO INSTITUTE, INCORPORATED, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

405 F.2d 1082 (1968)

John F. BANZHAF, III, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, WTRF-TV, Inc. and National Association of Broadcasters, American Broadcasting Companies, Inc., the Tobacco Institute, Inc., the American Tobacco Company, Brown & Williamson Tobacco Corp., Larus & Brother Co., Inc., Liggett & Myers Tobacco Co., Philip Morris, Inc., R. J. Reynolds Tobacco Co., United States Tobacco Co., P. Lorillard Co., Intervenors.

WTRF-TV, INC. and National Association of Broadcasters, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Heart Disease Research Foundation et al., Intervenors.

The TOBACCO INSTITUTE, INCORPORATED, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

Nos. 21285, 21525, 21526, 21577.

United States Court of Appeals District of Columbia Circuit.

Argued June 25, 1968.

Decided November 21, 1968.

COPYRIGHT MATERIAL OMITTED

Mr. John F. Banzhaf, III, petitioner pro se, and Mr. Earle K. Moore, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, for petitioner in No. 21,285 and intervenor in Nos. 21525-6.

Mr. Howard C. Westwood, Washington, D. C., with whom Messrs. Ernest W. Jennes, Herbert Dym, Jonathan D. Blake and Richard S. Morey, Washington, D. C., were on the brief for petitioners in Nos. 21525-6. Mr. Jerome Ackerman, Washington, D. C., also entered an appearance for petitioners in Nos. 21525-6.

Mr. Abe Krash, Washington, D. C., with whom Messrs. Paul A. Porter, Daniel A. Rezneck and Jerome I. Chapman, Washington, D. C., were on the brief for The Tobacco Institute, Inc. and Philip Morris, Inc., argued for all petitioners in No. 21,577. Mr. Porter R. Chandler, New York City, was on the brief for R. J. Reynolds Tobacco Co., petitioner in No. 21,577.

Mr. Eugene R. Anderson, New York City, was on the brief for The American Tobacco Company, petitioner in No. 21,577.

Mr. Carleton A. Harkrader, Washington, D. C., was on the brief for P. Lorillard Co., petitioner in No. 21,577.

Mr. John H. Conlin, Associate General Counsel, Federal Communications Commission, with whom Asst. Atty. Gen. Donald F. Turner, Messrs. Henry Geller, General Counsel, Stuart F. Feldstein, William L. Fishman and Mrs. Lenore G. Ehrig, Counsel, Federal Communications Commission, were on the brief for respondents. Messrs. Robert D. Hadl, Attorney, Federal Communications Commission, and Howard E. Shapiro, Attorney, Department of Justice, also entered appearances for respondents.

Messrs. Lloyd N. Cutler, J. Roger Wollenberg, Timothy B. Dyk, Daniel Marcus and Robert A. Warden, Washington, D. C., were on the brief for Columbia Broadcasting System, Inc., intervenor in Nos. 21,525 and 21,526.

Messrs. Donald J. Mulvihill and Howard Monderer, Washington, D. C., were on the brief for National Broadcasting Company, Inc., intervenor in Nos. 21,525 and 21,526.

Mr. Lloyd Symington, Washington, D. C., filed a brief on behalf of The National Tuberculosis Association as amicus curiae urging affirmance.

Messrs. Abe Krash, Paul A. Porter, Daniel A. Rezneck and Jerome I. Chapman, Washington, D. C., also entered appearances for The Tobacco Institute, Inc., American Tobacco Co., Brown & Williamson Tobacco Corp., Larus & Brother Co., Inc., Liggett & Myers Tobacco Co., Philip Morris, Inc., R. J. Reynolds Tobacco Co., United States Tobacco Co. and P. Lorillard Co., intervenors in Nos. 21,285, 21,525 and 21,526.

Messrs. James A. McKenna, Jr. and Vernon L. Wilkinson, Washington, D. C., entered appearances for American Broadcasting Companies, Inc., intervenor in Nos. 21,525 and 21,526.

Mr. Edgar F. Czarra, Jr., Washington, D. C., entered an appearance for WTRF-TV, Inc. and National Association of Broadcasters, intervenors in No. 21,285, and Spartan Radiocasting, Palmetto Radio, W. A. V. E., Inc., WFIE, Inc. and WFRV, Inc. and Indiana Broadcasting, Gulf Television Corporation, Corinthian Television Corporation and Great Western Broadcasting Corp., intervenors in Nos. 21,525 and 21,526.

Messrs. Vincent A. Pepper and Arthur V. Weinberg, Washington, D. C., entered appearances for WLLE, Inc., intervenor in Nos. 21,525 and 21,526.

Before BAZELON, Chief Judge, WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT, Circuit Judge.

BAZELON, Chief Judge:

In these appeals we affirm a ruling of the Federal Communications Commission requiring radio and television stations which carry cigarette advertising to devote a significant amount of broadcast time to presenting the case against cigarette smoking. This holding rests on negative answers to the following principal questions:

(I) whether in the Cigarette Labeling Act of 1965 Congress preempted the field of regulation addressed to the health problem posed by cigarette smoking so as to deny the FCC any authority it otherwise had to issue its cigarette ruling (infra, pp. 1087-1091);

(II) if not so forbidden, whether the ruling is nonetheless unauthorized (infra, pp. 1091-1099), either

(A) because the Commission has no authority to regulate broadcast content (infra, pp. 1093-1096), or

(B) because any authority over program content which the Commission may have cannot support a ruling of this kind (infra. pp. 1096-1099); and

(III) if neither forbidden nor unauthorized, whether the ruling is unconstitutional (infra, pp. 1099-1103), either

(A) because the First Amendment permits no regulation of program content (infra, pp. 1099-1101), or

(B) because the cigarette ruling in particular violates the First Amendment (infra, pp. 1101-1103).

The history of the cigarette ruling dates to December 1966, when citizen John F. Banzhaf, III asked WCBS-TV to provide free time in which anti-smokers might respond to the pro-smoking views he said were implicit in the cigarette commercials it broadcast.¹ Although he cited several specific commercial messages, Banzhaf's target included

all cigarette advertisements which by their portrayals of youthful or virile-looking or sophisticated persons enjoying cigarettes in interesting and exciting situations deliberately seek to create the impression and present the point of view that smoking is socially acceptable and desirable, manly, and a necessary part of a rich full life.

He said this point of view raised one side of a "controversial issue of public importance" and concluded that under the FCC's fairness doctrine, WCBS was under obligation to "affirmatively endeavor to make its * * * facilities available for the expression of contrasting viewpoints held by responsible elements. * * *"

WCBS replied that it had broadcast several news and information programs presenting the facts about the smoking-health controversy, as well as five public service announcements of the American Cancer Society aired free of charge during recent months.² On the basis of these broadcasts it was confident that "its coverage of the health ramifications of smoking has been fully consistent with the fairness doctrine." But it doubted in any event that "the fairness doctrine can properly be applied to commercial announcements solely and clearly aimed at selling products and services. * *"

Thereupon, Banzhaf forwarded the correspondence to the Federal Communications Commission under cover of a complaint that the station was violating the fairness doctrine.³ And thereby hangs the following legal tale.

The Commission sustained the Banzhaf complaint. In a letter dated June 2, 1967,⁴ it agreed that the cited cigarette commercials "present the point of view that smoking is `socially acceptable and desirable, manly, and a necessary part of a rich full life,'"⁵ and, as such, invoke the fairness doctrine. It said in part:

We stress that our holding is limited to this product — cigarettes. Governmental and private reports (e. g., the 1964 Report of the Surgeon General\'s Committee) and congressional action (e. g., the Federal Cigarette Labeling and Advertising Act of 1965) assert that normal use of this product can be a hazard to the health of millions of persons. The advertisements in question clearly promote the use of a particular cigarette as attractive and enjoyable. Indeed, they understandably have no other purpose. We believe that a station which presents such advertisements has the duty of informing its audience of the other side of this controversial issue of public importance — that, however enjoyable, such smoking may be a hazard to the smoker\'s health.⁶

The Commission refused, however, to require "equal time" for the anti-smoking position and emphasized that "the type of programming and the amount and nature of time to be afforded is a matter for the good faith, reasonable judgment of the licensee. * * *" But it directed stations which carry cigarette commercials to provide "a significant amount of time for the other viewpoint. * * *" And by way of illustration it suggested they might discharge their responsibilities by presenting "each week * * * a number of the public-service announcements of the American Cancer Society or HEW in this field."⁷

In response to numerous petitions and requests for reconsideration, the Commission affirmed its ruling in a lengthy Memorandum Opinion.⁸ It rejected contentions that the fairness doctrine is unconstitutional and that the cigarette ruling is precluded by the Cigarette Labeling and Advertising Act of 1965. The opinion did make clear that cigarette advertising in general, not any particular commercials, necessarily conveys the controversial view that smoking is a good thing.⁹ But the Commission stressed again that its ruling was "limited to this product — cigarettes" and disclaimed any intention "to imply that any appeal to the Commission by a vocal minority will suffice to classify advertising of a product as controversial and of public importance."¹⁰

While defending its failure to provide interested persons an opportunity to be heard before issuing its...