Farmers Educational and Cooperative Union of America, North Dakota Division v. Wday, Inc

• Decision Date: 29 June 1959
• Docket Number: No. 248,248
• Parties: FARMERS EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION, a Corporation, Petitioner, v. WDAY, INC
• Court: U.S. Supreme Court

360 U.S. 525

79 S.Ct. 1302

3 L.Ed.2d 1407

FARMERS EDUCATIONAL AND COOPERATIVE UNION OF AMERICA, NORTH DAKOTA DIVISION, a Corporation, Petitioner,

v WDAY, INC.

No. 248.

Argued March 23, 1959.

Decided June 29, 1959.

Mr. Edward S. Greenbaum and Mrs. Harriet F. Pilpel, New York City, for petitioner.

Mr. Harold W. Bangert, Fargo, N.D., for respondent.

Mr. Douglas A. Anello, Washington, D.C., for National Ass'n of Broadcasters, amicus curiae.

Mr. Herbert Monte Levy, Mr. Rowland Watts, New York City, on the brief, for American Civil Liberties Union, amicus curiae.

Mr. Justice BLACK delivered the opinion of the Court.

We must decide whether § 315 of the Federal Communications Act of 1934 bars a broadcasting station from removing defamatory statements contained in speeches broadcast by legally qualified candidates for public office, and if so, whether that section grants the station a federal immunity from liability for libelous statements so broadcast Section 315 reads:

'(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: 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.'¹

This suit for libel arose as a result of a speech made over the radio and television facilities of respondent, WDAY, Inc., by A. C. Townley—a legally qualified candidate in the 1956 United States senatorial race in North Dakota. Because it felt compelled to do so by the requirements of § 315, WDAY permitted Townley to broadcast his speech, uncensored in any respect, as a reply to previous speeches made over WDAY by two other senatorial candidates. Townley's speech, in substance, accused his opponents, together with petitioner, Farmers Educational and Cooperative Union of America, of conspiring to 'establish a Communist Farmers Union Soviet right here in North Dakota.' Farmers Union then sued Townley and WDAY for libel in a North Dakota State District Court. That court dismissed the complaint against WDAY on the ground that § 315 rendered the station immune from liability for the defamation alleged. The Supreme Court of North Dakota affirmed, stating: 'Section 315 imposes a mandatory duty upon broadcasting stations to permit all candidates for the same office to use their facilities if they have permitted one candidate to use them. Since power of censorship of political broadcasts is prohibited it must follow as a corollary that the mandate prohibiting censorship includes the privilege of immunity from liability for defamatory statements made by the speakers.' For this reason it held that the state libel laws could not apply to WDAY. N.D., 89 N.W.2d 102, 110. We granted certiorari because the questions decided are important to the administration of the Federal Communications Act. 358 U.S. 810, 79 S.Ct. 56, 3 L.Ed.2d 54.

I.

Petitioner argues that § 315's prohibition against censorship leaves broadcasters free to delete libelous material from candidates' speeches, and that therefore no federal immunity is granted a broadcasting station by that section. The term censorship, however, as commonly understood, connotes any examination of thought or expression in order to prevent publication of 'objectionable' material. We find no clear expression of legislative intent, nor any other convicting reason to indicate Congress meant to give 'censorship' a narrower meaning in § 315. In arriving at this view, we note that petitioner's interpretation has not generally been favored in previous considerations of the section. Although the first, and for years the only judicial decision dealing wih the censorship provision did hold that a station may remove defamatory statements from political broadcasts,² subsequent judicial interpretations of § 315 have with considerable uniformity recognized that an individual licensee has no such power.³ And while for some years the Federal Communications Commission's views on this matter were not clearly articulated,⁴ since 1948 it has continuously held that licensees cannot remove allegedly libelous matter from speeches by candidates.⁵ Similarly, the legislative history of the measure both prior to its first enactment in 1927, and subsequently, shows a deep hostility to censorship either by the Commission or by a licensee.⁶ More important, it is obvious that permitting a broadcasting station to censor allegedly libelous remarks would undermine the basic purpose for which § 315 was passed—full and unrestricted discussion of political issues by legally qualified candidates. That section dates back to, and was adopted verbatim from, the Radio Act of 1927. In that Act, Congress provided for the first time a comprehensive federal plan for regulating the new and expanding art of radio broadcasting. Recognizing radio's potential importance as a medium of communication of political ideas, Congress sought to foster its broadest possible utilization by encouraging broadcasting stations to make their facilities available to candidates for office without discrimination, and by insuring that these candidates when broadcasting were not to be hampered by censorship of the issues they could discuss. 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 power of censorship over radio communication.⁷ It is in line with this same tradition that the individual licensee has consistently been denied 'power of censorship' in the vital area of political broadcasts.

The decision a broadcasting station would have to make in censoring libelous discussion by a candidate is far from easy. Whether a statement is defamatory is rarely clear. Whether such a statement is actionably libelous is an even more complex question, involving as it does, consideration of various legal defenses such as 'truth' and the privilege of fair comment. Such issues have always troubled courts. Yet, under petitioner's view of the statute they would have to be resolved by an individual licensee during the stress of a political campaign, often, necessarily, without adequate consideration of basis for decision. Quite possibly, if a station were held responsible for the broadcast of libelous material, all remarks even faintly objectionable would be excluded out of an excess of caution. Moreover, if any censorship were permissible, a station so inclined could intentionally inhibit a candidate's legitimate presentation under the guise of lawful censorship of libelous matter. Because of the time limitation inherent in a political campaign, erroneous decisions by a station could not be corrected by the courts promptly enough to permit the candidate to bring improperly excluded matter before the public. It follows from all this that allowing censorship, even of the attenuated type advocated here, would almost inevitably force a candidate to avoid controversial issues during political debates over radio and television, and hence restrict the coverage of consideration relevant to intelli- gent political decision. We cannot believe, and we certainly are unwilling to assume, that Congress intended any such result.

II.

Petitioner alternatively argues that § 315 does not grant a station immunity from liability for defamatory statements made during a political broadcast even though the section prohibits the station from censoring allegedly libelous matter. Again, we cannot agree. For under this interpretation, unless a licensee refuses to permit any candidate o t alk at all, the section would sanction the unconscionable result of permitting civil and perhaps criminal liability to be imposed for the very conduct the statute demands of the licensee. Accordingly, judicial interpretations reaching the issue have found an immunity implicit in the section.⁸ And in all those cases concluding that a licensee had no immunity, § 315 had been construed—improperly as we hold—to permit a station to censor potentially actionable material.⁹ In no case has a court even implied that the licensee would not be rendered immune were it denied the power to censor libelous material.

Petitioner contends, however, that the legislative history of § 315 shows that Congress did not intend to grant an immunity. Some of the history supports such an inference. As it reached the Senate, the provision which became § 18 of the Radio Act of 1927 provided in part that if a station permitted one candidate to use its facilities, it should 'be deemed a common carrier in interstate commerce * * *' and could not discriminate against other political candidates or censor material broadcast by them.¹⁰ In the Senate, Senator Dill the bill's floor manager—introduced an amendment to this provision which, among other things, specifically granted a station immunity from civil and criminal liability for 'any uncensored utterances thus broadcast.'¹¹ The amendment was adopted by the Senate, but its provision expressly granting immunity was removed by the Conference Committee without any explanation.¹² Section 18 was incorporated into the Communications Act of 1934 with no explanatory discussion. Subsequently, a great deal of pressure built up for legislation to remove all possible doubt as to broadcasters' liability for libel eiher by granting them a power to censor libelous statements or by providing an express legislative immunity. Many legislative proposals were made to accomplish these purposes,¹³ but no legislation providing either was ever enacted. Thus, whatever adverse inference may be drawn from the failure of Congress to legislate an express immunity is offset by its refusal to permit stations to avoid liability by...