In the Matter of INQUIRY INTO WBBM-TV's BROADCAST ON
NOVEMBER 1 AND 2, 1967, OF A REPORT ON A MARIHUANA PARTY
Docket No. 18101
FEDERAL COMMUNICATIONS COMMISSION
18 F.C.C.2d 124; 16 Rad. Reg. 2d (P & F) 207
RELEASE-NUMBER: FCC 69-537
May 15, 1969 Adopted
COMMISSION: COMMISSIONERS COX AND JOHNSON ISSUING
SEPARATE STATEMENTS; COMMISSIONER
1. Upon allegations that officials or employees of WBBM-TV, Chicago, an owned and operated station of Columbia Broadcasting System (CBS), participated in arranging for or, at least, encouraged or induced a group of Northwestern University students to smoke marihuana, in violation of the law, in order that WBBM-TV might film the event for broadcast purposes, the Commission instituted this investigatory proceeding (F.C.C. 68-316, released Mar. 22, 1968). The program, "Pot Party at a University," was broadcast as a two-part feature during WBBM-TV's local news report on November 1-3, 1967. n1 CBS, the licensee of WBBM-TV, was made party to the investigation and denied the allegations.
n1 Part I was broadcast at 10 p.m., Nov. 1, 1967, and repeated at 6 p.m., Nov. 2, 1967. Part II was first broadcast at 10 p.m., Nov. 2, 1967, and repeated at 6 p.m., Nov. 3, 1967.
2. As part of the investigation a hearing was
held before Chief Hearing Examiner James D. Cunningham in
3. The chief hearing examiner's findings fully set forth facts and circumstances concerning the WBBM-TV program "Pot Party at a University" and on the basis of our review of the record we adopt those findings to the extent that they are not inconsistent with this decision. We will discuss only those facts which are still in dispute and will confine our decision to the main issues.
[*125] FACTS CONCERNING CBS' ACTIVITIES UP TO AND THROUGH THE BROADCASTS
4. WBBM-TV's news director, Robert Ferrante,
became interested in doing a marihuana report in July 1967, and his interest
heightened in August 1967, after a report of marihuana arrests in the
n2 Missett attended Northwestern for 4 years and was graduated with honors from the Magill School of Journalism at Northwestern in June 1967. Missett's association with WBBM-TV began in his senior year when, upon the recommendation of the University, he became a student intern. In December 1966, Missett was hired as a full-time production assistant; he was made a staff writer in March 1967, and was assigned as assistant to the assignment editor in August 1967. The latter position was concerned with setting up of interviews and the assignment of camera crews.
5. The factual question regarding Missett's subsequent actions is simply whether Missett was invited to a pot party and asked if he could bring the CBS cameras or whether Missett in some manner arranged the party for the purpose of filming it. We concur with the chief hearing examiner's ultimate finding of fact that the marihuana party which employees of WBBM-TV filmed on October 22,1967, was held at the behest of Missett and, but for his solicitation, would not have been held on that day, nor have included the eight people who attended in addition to CBS personnel. We have arrived at our determination despite Missett 's consistent denials because the weight of the evidence predominantly supports the testimony given by witness A, n3 the organizer of the marihuana party. Our determination in this regard is supported by the testimony of Malcolm Spector and his wife regarding an earlier attempt by Missett to set up a party.
n3 Four nonpublic witnesses are referred to as witnesses A, B, C, and D; these individuals were granted immunity under section 409(1) of the Communications Act by virtue of the fact that their testimony was given undercompulsion.
6. Malcolm Spector, presently an assistant
professor of sociology at
n4 Missett in fact relayed this suggestion to his superiors at WBBM-TV; they also rejected it. Ferrante and Lawrence Morrone, WBBM-TV's executive producer for news, thought the filming of an actual marihuana party the most effective presentation of the marihuana problem.
7. CBS has attacked Spector's testimony on grounds of relevance because Spector was not involved in the marihuana party which was subsequently filmed by WBBM-TV. CBS also challenges the "significant weight" given Mrs. Spector's testimony. However, the chief hearing examiner did not give significant weight to Mrs. Spector's testimony regarding what was discussed. What the examiner found significant was the fact that immediately upon Missett's departure Malcolm Spector related to another the nature and substance of his conversation. The Commission likewise finds this fact significant. While Spector's testimony does not directly concern the October 22, 1967, marihuana party, his testimony regarding Missett's attempts to arrange for filming a marihuana party for WBBM-TV does corroborate witness A's testimony on the same subject and to that extent Spector's testimony is relevant and germane to the question of whether Missett sought to film an independently planned party or was himself instrumental in the planning. Witness A's testimony is strikingly similar to Spector's. In conversation with witness A, Missett again expressed the view that the marihuana laws were too harsh; again indicated his desire to film an actual pot party and interview people under the influence of marihuana; again said he wanted eight to 10 people to participate; and again indicated the type of participant he wanted -- upper class college students with no criminal records.
8. Missett has denied that the October 22, 1967, party was arranged at his solicitation and that he previously attempted to have Spector arrange a marihuana party. However, Missett also testified (Tr. 230- 231) that at the time he indicated his interest in filming a marihuana party to witness A, no party had been planned by witness A. On the basis of his conversation with Missett, witness A went out and invited people to a marihuana party in order that CBS might attend and film it. At the very least, Missett did not indicate to witness A that CBS would be interested only in filming a pot party which had been independently planned by others and which would have occurred irrespective [*127] of CBS' interest in the matter. Thus, on the basis of the record, we conclude that the October 22, 1967, marihuana party was the direct result of Missett's actions in seeking to arrange the filming of such an event.
9. Early in WBBM-TV's marihuana investigation, Lawrence Morrone set down guidelines for Missett's actions. No one was to be urged to do anything he would not normally do; no money was to be offered; no encouragement was to be given participants; and the reporter was not to ask to be invited to film a marihuana party (Tr. 408). All contacts made during the planning stage were through Missett. No other CBS employee was directly involved, and Missett's superiors relied solely upon his reports to keep themselves informed as to developments. Missett relayed the suggestion of a panel show made by Malcolm Spector. Although Missett did not identify him by name, Morrone rejected that approach. Subsequently, Missett told Morrone that they had been invited to film a pot party and that the group involved attended marihuana parties as a regular routine. Morrone asked for the names of the participants and was told that Missett had promised not to divulge them; Morrone did not pursue the subject. Morrone knew only that the group was to be composed of students and an instructor from Northwestern. Missett indicated only that marihuana would be used; although by his own testimony he knew that hashish, robitussin, silly stuff, and cough syrup were commonly used by the people who composed this group. Although Morrone knew it was illegal to possess or smoke marihuana, he did not consult with anyone about the legality or propriety of sending a camera crew out to film the event. Morrone said Missett was told to film what was going on; no script was prepared and he relied upon the technical experience of the camera crew to get the proper film shots. Missett did, however, submit a script of his own comments prior to the filming, and that script was approved by Ferrante and Edward Kenefick, the general manager of WBBM-TV.
10. Once the film was brought to the station it was extensively edited by Morrone and Robert Harris, the producer of the 10 p.m. news show. Out of the 1 hour or more of film shot at the party, only a total of 13 minutes (Tr. 418) was used; the rest was destroyed prior to the actual broadcast. It was at this point that Ferrante decided that the report would be presented in two parts and Morrone decided that the views of respected officials were needed to present a balanced view of the pros and cons of marihuana. After the news department viewed the film, Ferrante gave Kenefick a briefing as to what had been filmed. Kenefick said that it didn't sound very exciting, but that they did have the interviews and some comments of the kids; he suggested they balance the program with appropriate interviews. As a result, Charles Ward, Federal Narcotics Bureau Chief, Midwest Division, and Dr. Jerome H. Jaffe n5 were contacted and Missett interviewed them at the end of October, more than a week after the filming of the marihuana party. Missett did not tell Ward that the marihuana party had been filmed and Ward said that had he known the Narcotics Bureau probably would have declined the interview.
n5 Dr. Jerome H. Jaffe is a psychiatrist specializing in the area of narcotics, presently on the faculty of University of Chicago and director of the Drug Abuse Division of the Department of Mental Health of the State of Illinois.
[*128] 11. Once the entire program was assembled, Ferrante and Kenefick
viewed it on closed circuit television.
Kenefick suggested some re-editing, which was done, to adhere to
Missett's promise of anonymity. In
preparation for the broadcast, Bruce J. Bloom, WBBM-TV's advertising director,
was informed of the program by Ferrante.
Bloom composed newspaper ads, which were shown to Kenefick for
approval. Kenefick suggested a change
in the title from "Pot Party at Northwestern" to "Pot Party at a
University," so as not to single out Northwestern since the program was
supposed to be typical of many universities and colleges. The extent to which the program was
advertised was Bloom's decision, although Kenefick was fully informed. A total of $3,635 was spent on newspaper
advertisements. This expenditure was high
in relation to WBBM-TV's normal advertising for programs of even longer duration. In addition, spot announcements promoting
the pot party film were run on the station on October 31 and November 1 and 2,
and Bloom alerted the television critics of
n6 The marihuana party was
actually filmed at 620 Foster Street, a rooming house which is neither owned
nor controlled by Northwestern University. However, the building is located
within the general area depicted in University publications as the Northwestern
12. Before the broadcast, Sam Saran, in charge
of public relations for
13. On October 31, 1967, Kreml arranged an
appointment with Ferrante and Kenefick.
Kreml asked that Northwestern's name be removed from the program because
of the potential damage to the school's reputation, and particularly because of
possible impact on a large donation the University was then negotiating. Kreml asked to see the program and his
request was also denied. At the end of the interview, Kenefick told Kreml that
he would think about the matters raised.
At no time prior to the first broadcast did Saran or Kreml suggest
either that the marihuana party did not take place on the Northwestern campus
or that the marihuana party had been staged or prearranged by CBS. After Kreml left, Ferrante and Kenefick
discussed [*129] the problem and decided to check with
Missett again. Ferrante and Kenefick
separately questioned Missett to determine whether any encouragement or
inducement had been offered the marihuana party participants and to ascertain
again whether the party had taken place on the Northwestern campus. Kenefick's conversation with Missett lasted
2 hours, but Kenefick never asked the address at which the party was held nor
was any attempt made by CBS prior or subsequent to the broadcast to learn the
identity of, or speak to, any of the participants. Kenefick did direct Ferrante to check on Missett's connections
with Northwestern to determine whether he would have any reason to try to
embarrass the University; Ferrante reported that Missett's Northwestern record
was good. In addition, Ferrante checked
with a cameraman regarding the possibility that the party had been staged by
Missett and to determine the general location of the party. He was satisfied that Missett's statements
were accurate. It was on the basis of
the November 1,1967, conversations with Missett that WBBM-TV's management
decided to go ahead with the scheduled broadcast. Although all were aware that the possession of marihuana was a
criminal offense in the State of
14. The charge that the WBBM-TV pot party was
staged was first made on November 2, 1967, the day after the initial broadcast
of part I, through a statement issued by
15. The management of WBBM-TV was kept informed of developments with respect to the marihuana report by frequent, sometimes casual reports by John Missett. The information upon which the decision was made to broadcast the pot party film was limited, in all significant respects, to that one source. We have found that the marihuana party which WBBM-TV filmed was held at the instigation and behest of WBBM-TV's representative. We further find that the management of WBBM-TV was unaware of this fact. However, the matter does not end there, and will be discussed further (see pars. 41, 43, 44 infra). [*130]
16. CBS's initial response to the charge that
the WBBM-TV marihuana party was staged came on November 2, prior to the
broadcast of part II. At that time Kenefick
was questioned by CBS executives about the wire news stories regarding the Northwestern
assertions. Schneider and Wood asked
him if the party was staged, the identity and background of the reporter, when
the party was filmed, and why the broadcast was delayed. Kenefick's answers satisfied the CBS
executives, and no discussion was had regarding the broadcast or nonbroadcast
of part II. In
17. Dr. Frank Stanton, president and chief
administrative officer of CBS, first learned of the WBBM-TV pot party on
November 2 from a wire news story.
18. In November 1967, shortly after the pot party broadcast, the Commission initiated a series of inquiries concerning the broadcast, as did the special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce.
19. The chronology of CBS's investigation is set
forth in paragraphs 72-100 of the examiner's findings of fact and need not be
repeated in detail. Representatives of CBS spoke to officials of
20. Dr. Stanton articulated CBS' general policy of protecting sources of information. For this reason, CBS never attempted to ascertain the names of the participants in order to corroborate Missett's version of the facts and never attempted to interview any of the participants [*131] when their identities became known to CBS. Dr. Stanton said CBS follows an ad hoc policy which leaves to the judgment of individual station managers the question of whether to consult with CBS headquarters or whether to participate in programs involving the commission of a crime of which the station is aware in advance.
STAGING FOR PURPOSE OF "HYPOING" AUDIENCE RATINGS
21. The next factual question raised is whether
the marihuana party was staged in order fraudulently to increase or
"hypo" WBBM-TV's audience ratings. Some of the evidence bearing upon
this question has already been recited: i.e., WBBM-TV's news director decided
to present the program in two parts, presumably for maximum audience exposure;
and $3,635 was spent on newspaper promotion for the program, a somewhat higher
than usual expenditure for the length of the program, which was merely a
segment of the regularly scheduled 10 o'clock news. In addition, a telephone
coincidental survey was ordered by WBBM-TV on November 2, 1967, for part II of
the pot party broadcast. On November 2,
1967, Kenefick, attending a meeting in
22. The foregoing constitutes a brief treatment of some of the factual highlights; we again point out that the chief hearing examiner's factual findings, except where inconsistent, have been adopted and should be referred to for a fuller statement. We turn now to a discussion of the main issues raised: (A) The issue of staging the news events, together with the issue of investigative news reporting in situations involving the commission of a crime; (B) the issue of licensee responsibility in this type of situation; (C) the issue of staging for the purpose of hypoing audience ratings. We shall treat each in turn.
A. Staging Investigative Reporting in Situations Involving Commission of a Crime
23. We are here in the sensitive field of broadcast journalism. The field comes within the requirement of operation in the public interest (see sec.315(a) of the Communications Act). But it is an area where the Commission's proper interest is narrowly confined and where Commission intervention should be limited to appropriate matters. See letter to ABC, CBS and NBC, 16 F.C.C. 2d 650 (1969). Broadcasting is, of course, no less entitled to first amendment protection than the print media. Rather, broadcasting is the press, and something more -- the "more" being the requirement, because of the system of Federal [*132] licensing which excludes all others from use of the frequency, that the broadcast operation be consistent with the public interest in such respects as the fairness doctrine and that the licensee eschew deliberately slanting the news or staging news events.
24. The latter category -- improper staging of news events -- can be a most difficult one. As we stated in our recent letter to ABC, supra:
* * * In a sense, every televised press conference may be said to be staged to some extent; depiction of scenes in a television documentary -- on how the poor live on a typical day in the ghetto, for example -- also necessarily involves camera direction, lights, action, instruction, etc. The term "pseudo-event" describes a whole class of such activities that constitute much of what journalists treat as news. Few would question the professional propriety of asking public officials to smile again or to repeat handshakes, while the cameras are focused upon them. In short, while there can, of course, be difficult gray areas, there are also many areas of permissible licensee judgment in this field.
The staging of the news with which we are here concerned is neither an area coming clearly within the licensee's journalistic judgment nor even a gray area. Rather, it is the deliberate staging of alleged news events along the line of the charges set out under No. 3 infra (i.e., a purportedly significant event which did not in fact occur but rather is acted out at the behest of news personnel). Where such staging occurs, it may constitute a range of abuses as serious as those present in the Richards case. n4 See also paragraph 17, editorializing report, 13 F.C.C. at pp. 1254-55. In the Richards case, according to charges made by newsmen, the licensee instructed his news staff to slant news reports in specified ways. Such slanting of the news amounts to a fraud upon the public and is patently inconsistent with the licensee's obligation to operate his facilities in the public interest. It calls for a full hearing to determine the facts and thus whether the licensee is qualified to hold the broadcast permit.
n4 See KMPC, Station of the Stars, Inc., F.C.C. 49-1021, 14 F.R. 4831 (1949).
25. There are thus many aspects and issues which can arise in the area of staging news events, and it is not, of course, possible to set out a discussion which will cover all such aspects. Some situations are clear-cut. For example, the licensee's newsmen should not, upon arriving late at a riot, ask one of the rioters to throw another brick through a store window for its cameras. First, if the window is already broken, it is staging a news event -- one which did not in fact occur but rather is acted out at the request of the news personnel; the licensee could fairly present such a film only with the full disclosure of its nature. In any event, whether or not the window is broken, the licensee cannot encourage or induce the commission of a crime, and throwing the brick is a crime (see discussion, infra, par. 30). There are other clear situations, but, as stated, there will arise situations where the answer is not clear-cut – where difficult decisions must be made by the broadcast journalist, keeping in mind the desire to portray the matter as graphically as possible and at the same time preserving fully the bedrock upon which the entire industry rests, namely, the integrity of the news and related programming operations.
26. This case presents a different aspect of the
staging issue. We are not involved here
with a news event which did not in fact occur but rather was acted out at the
behest of the news personnel. WBBM-TV
set out to show a pot party involving
27. Further, the public obviously was aware that the party was being held with the television camera a major factor. It knew that the camera was there, and had to have an effect on the participants. It could hear Missett asking questions of the students. In all respects, lighting, placing, questions, etc., there had to be the usual cooperative aspects of any such televised event. In short, the public thus knew fully that this was a televised pot party – an inherently different event from a private, nontelevised pot-smoking gathering. n8
n8 In a sense, it is like the theory of indeterminancy. When you use an instrument to ascertain the orbit of the electron, you affect the orbit, and, similarly, when you introduce a television camera and crew into a meeting such as the above (rather than televising the meeting covertly through a mirror or screen, without any knowledge on the part of the participants of the presence of the camera) you affect the nature of the meeting.
28. But having said all this, we nevertheless
believe that there was deception of the public in one significant respect. At the beginning of the second broadcast,
WBBM-TV noted that
n9 Kreml, the
29. The plain fact is that had WBBM-TV known of Missett's actions in inducing the holding of the party, it clearly would not have broadcast the film of the party in the first instance. This brings us to the related, and, in this case most important, aspect of this issue -- what could the licensee properly do in the furtherance of this kind of investigative journalism?
30. We have previously set out our position on this aspect in testimony before the Congress (Hearings before the Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce, 90th Cong., 2d Sess., p. 331). We adhere to that position. The broadcast licensee is not automatically barred from investigative journalism involving situations where there is unfolding a commission [*134] of a crime. Of course, there are situations where, rather than determining that the investigative journalistic effort should be undertaken, the licensee would have to notify the police (e.g., mugging, robbery, or other violent situations where a participant's life or safety or someone's significant property interest was at stake). But there are other situations where there would be no such requirement (e.g., The Biography of a Bookie Joint F.C.C. 62-779 (1963) the numbers racket or prohibition violations in certain States). Print journalism has long engaged in such investigative exposures. It has been commended, not condemned, for these efforts to hold a mirror before the public. Broadcast journalism is no less a part of the press -- no less entitled under the first amendment to show through such investigative journalism that substantial segments of society are flouting a particular law, thereby raising hard questions concerning what should be done in such situations.
31. In this case, WBBM-TV could therefore properly use television coverage of a pot party to point up graphically the widespread nature of this drug violation on college campuses. But it had to be a pot party which was being held, whether or not WBBM-TV was there to televise it -- one to which it was truly invited. The licensee could not properly induce the holding of a pot party. Simply stated, the licensee has to be law-abiding ( FCC v. ABC, 347 U.S. 284 (1954) n. 7) and cannot induce the commission of a crime such as the use of marihuana. There is, we think, no dispute on this point. The station's management again and again cautioned Missett that he must not encourage, solicit, induce, support through payment, etc., the holding of a pot party (see, e.g., pp. 4, 6, supra; pars. 9, 32, 33 of the chief hearing examiner's report). They clearly recognized the impropriety of such action. And it remains improper, whether or not the participants might smoke marihuana elsewhere and in different groupings the next day or week. n10
n10 We wish to make clear that we are using the term, "INDUCE", NOT IN ANY SENSE OF THE CRIMINAL OR RELATED LAW (E.G., ENTRAPMENT), BUT IN ITS PLAIN DICTIONARY SENSE (TO BRING ABOUT; CAUSE; EFFECT * * * TO LEAD ON TO SOME ACTION,ETC.). Upon the basis of the chief hearing examiner's findings adopted by us, WBBM-TV did induce the holding of this marihuana party (e.g., that Missett, as he had in the case of Spector, told witness A that the marihuana laws were too harsh and that he wanted to film an actual pot party with eight to 10 participants who were upper class college students with no criminal records) (see discussion, pp. 2-5, supra). Indeed, the licensee has recognized that if the testimony of witness A and Spector is credited, there was improper inducement, against its instruction; its defense has always been that the above testimony should be rejected and that of Missett accepted.
32. In sum, on issue (A), while the pot party was authentic in many respects and thus cannot be deemed a flagrantly staged event or outright fraud on the public, it would appear that it was misleading in that the public was given the impression that WBBM-TV had been invited to film a student pot gathering which was in any event being held, whereas, in fact, its agent had induced the holding of the party. There is some ambiguity with respect to the situation leading to the foregoing conclusion. There is none with respect to the most important conclusion reached, namely, that the film should not have been made because inducement of the commission of the crime involved, as the licensee recognizes, is improper and inconsistent with the public interest. We stress that our holding is limited to the fact of this case and the particular activities involved. See paragraph 25, supra.
[*135] 33. We have found that the licensee was not aware of Missett's activities to encourage or induce the party and that these activities were contrary to management's specific instructions. But that does not end the matter. The licensee is responsible for the conduct of its employees. It must set down appropriate policies and exercise reasonable control or supervision over its employees with respect to the observance of these policies. We turn now to the question whether the licensee has complied with these requirements in this case. This question is centered about the licensee's policy as to investigative reporting and staging and its supervisory actions here to promote compliance with the policy.
34. CBS's policy as to investigative reporting such as was involved in this case is to leave this matter to the news judgment of its station manager. As to the argument that CBS should have a policy of notifying authorities when it is known that a crime is about to take place, we have already set forth our view that this is not necessary in situations like this. We also disagree with a blanket requirement that station managers must clear in advance all proposed controversial programs with top management. Of course, the licensee remains fully responsible for all programming, and its station managers should consult, and be encouraged to consult, with top management on matters of special import.
35. This was clearly such a decision, and understandably Kenefick might well have chosen to consult with top management. Indeed, since CBS remains fully responsible for all actions of its station manager, it might have insisted upon such prior consultation in this unusual and difficult area of investigative journalism involving the commission of a crime. Had it done so, or had Kenefick voluntarily consulted CBS's top management, the latter might have pointed up to crucial defect in the local station's manner of proceeding in the case – the total and unreasonable reliance upon the young reporter, Missett (see Discussion, infra, par. 41). The issue before us, however, is not what might be appropriate but what is required in the public interest, and specifically, whether prior consultation with top management is a prerequisite to the presentation of such an investigative journalistic broadcast.
36. We do not believe that it is. Station managers properly have discretion to exercise judgment on controversial news matters, the majority of which are fast breaking in nature. We do not believe that this discretion must be said to end where time is not a critical factor. A station manager, who may have to decide under great time pressures how and whether to cover a news matter such as a local riot, remains an individual who may exercise judgment as to an investigative news item. The rigid policy of blanket prior clearance in this area is not required in the public interest, and indeed, since it appears to be urged from the standpoint of an essentially hostile view as to such investigative journalism, might not serve the public interest in the widest possible dissemination of news and viewpoints on controversial issues. As a final incidental matter, we point out that the station manager of WBBM-TV did not abuse the confidence placed in him with respect [*136] to whether this was an appropriate matter for investigative coverage despite the fact that the participants were involved in the commission of a crime; in our view, WBBM-TV could properly present a pot party as a facet of investigative journalism.
37. We stress again that the licensee -- top management -- remains fully accountable for the activities of its station manager. It must therefore not only choose persons with responsible judgment but must have responsible policies to be followed in this sensitive area. We turn to these policies.
38. First, CBS itself has no written policies in this area of investigative journalism. As stated, the matter is left to the judgment of the station manager. We think it clearly desirable that CBS, and other licensees, set out the basic policy (e.g., whether it is permissible when a crime of violence is being permitted; etc.). While this particular station manager did not abuse his discretion in this instance, we do not believe it unreasonable that, in this difficult and sensitive area, top management should make clear the general guidelines for all its stations.
39. Further, top management should also set out the general guidelines for implementation of these policies. We do not mean just a policy statement against sin. In this case, there was no lack of policy direction to Missett. WBBM-TV's management repeatedly stressed to Missett that he was not to encourage the forming of a party, that he was in no way to arrange the party, that he could in no way pay any money or encourage or induce any of the activity, and that the party would have to be purely an actuality (pars. 9, 13, supra; pars. 9, 32, 33, report). The station's policy against the staging of news events, mainly in connection with the coverage of demonstrations, was reduced to writing and circulated to its staff in a memorandum dated October 27, 1967. These policies are adequate.
40. Yet the policies were not followed by Missett, as we have found. We recognize that the licensee is not an insurer in this respect -- that no matter how fully and adequately it may establish and implement policies, misconduct can occur. But we do not believe that this is a case where the licensee is without fault. Indeed, in our view, Missett should not be regarded as the fall guy in this case, but rather the licensee, under established policies, should bear the brunt of responsibilit y for the matter.
41. WBBM-TV's management knew that it was proceeding in a very sensitive, difficult area, as evidence by its repeated admonitions and questions to Missett. The key at all times to whether the station was proceeding properly was Missett's activity in making arrangements with the participants. But as to this factor, it placed its entire reliance on Missett, a young, ambitious reporter (p. 39, report). It never sought to have any check by Ferrante or Morrone on the crucial activities or arrangements of Missett with the participants. The reason given -- Missett's promise of anonymity to the participants -- simply cannot be controlling in the face of the circumstances here confronting the licensee.
42. First, we note that the promise of anonymity would have still been preserved, as a practical matter, if there had been a check by a senior news supervisor. The names would still be within the station's [*137] news department, albeit in two newsmen pledged to maintaining confidentiality rather than one. It is difficult to believe that these participants who were willing to attend a televised pot party where their faces would be closely observed by the TV crew, would have balked at this one additional check. If they had, the licensee could then consider whether it wished to televise an event such as this, where it had to rely solely upon the assertions of its young reporter as to the crucial and delicate facet of arrangements for the party. n11 In short, in view of the sensitive, difficult nature of the assignment, we cannot find that WBBM-TV acted responsibly in relying solely upon a very young, new reporter.
n11 We also note that if WBBM-TV had made the requisite inquiry prior to the November 1 broadcast, it would have ascertained the nature of the program and taken appropriate action. Thus it would not become necessary to disclose the identity of the participants to anyone outside of the station management.
43. In any event, and more important, the matter
does not end there. When the
n12 Similarly, we do not find acceptable CBS's reliance on the decision by its law department and outside legal counsel to honor Missett's promises of nondisclosure. CBS is the licensee. Advice of counsel is not dispositive of a licensee's responsibilities.
44. Finally, when it was called upon to investigate the matter and submit a report to the Commission, again, for the reasons stated above, it should have made contact with the participants. Its investigation -- and its conclusion that there was no misconduct -- was fatally defective so long as it continued to avoid the one vital action -- inquiry of the participants as to what Missett's activities had been. The pattern followed by the licensee from the beginning of the matter (i.e., preparations for the broadcast) to the post-broadcast investigation remained essentially the same. The mere repetition of the same questions to the same reporter did not, in the circumstances, constitute a reasonably diligent effort initially to insure operation in the public interest or subsequently to investigate the matter. Missett obviously was not going to indicate any wrongdoing or deviation from instruction. n13
n13 Furthermore, CBS's response to the Commission's inquiry of Nov. 21, 1967, which indicated that a careful and intensive investigation had been conducted and that the charges made against WBBM-TV were without foundation represented a cavalier and inappropriate response. No complete investigation could have been made without contacting the crucial source, the participants. Witness A, Missett's prime contact, was the critical source, and we note that CBS was given witness A's name in January 1968. CBS still never sought to contact witness A, even though it now had his name from a source wholly independent of Missett.
[*138] 45. In short, we hold that where investigation is called for in this type of situation -- in order to deny a charge of impropriety or to report to the Commission -- that investigation must encompass contact with the participants, and reliance upon a promise of anonymity is impermissible in light of the licensee's public interest responsibility. We note as a further matter the consideration that the confidentiality of the participants could be essentially maintained in an in-house investigation.
46. In sum, we hold that on issue (B) the licensee failed to set out written general policies to guide its station managers in the field of investigative journalism, both as to what is permissible and how the general policies in this area should be implemented. The latter area is crucial in this case, because WBBM-TV's supervisory actions in this case to implement the station's policies were deficient at all stages (prior to broadcast; after the first broadcast when the Northwestern charge was made; and after the receipt of the Commission's request for an investigative report). With proper licensee policies, the matter of reliance in these circumstances on a young reporter or on the policy of anonymity should have been handled differently and so as to insure operation consistent with the public interest. We stress that formulation of such policies is wholly consistent with encouragement of broadcast journalism, and of robust, wide-open debate, for all that is entailed is licensee responsibility --not curtailment of the licensee's right to make news judgments, or engage in appropriate investigative journalism. (c) The Issue of Staging for the Purpose of Hypoing the News
47. The facts on this issue have been set out at paragraph 21. The question presented by WBBM-TV's marihuana program is not whether a larger than usual audience was sought and attracted but rather whether WBBM-TV staged, as opposed to reported, news in order to increase its audience ratings. Based on our previous discussion, we conclude that it did not. Initially, as we have earlier found, those responsible for presenting the program in two parts, placing the newspaper advertisements, ordering the coincidental telephone survey, etc., had no knowledge of any improper conduct by Missett concerning the arrangements for the party. It follows logically that WBBM-TV's management cannot be found to have staged or induced the party in order to hypo ratings of its news program. Moreover, as to the latter consideration, there is other independent evidence that the program was not presented for purposes of hypoing audience ratings: The telephone coincidental survey was ordered at the last minute on the day of the broadcast; no prior surveys during the relevant time period were taken for the weeks preceding or subsequent thereto which would allow a comparison; the survey showed only that, during the 10 to 10:30 p.m. time period on a particular night, WBBM-TV outperformed its competitors in terms of audience; during more than 15 minutes of the half hour surveyed, WBBM-TV was presenting a movie which had been an academy award winner and which would be expected to attract a larger than usual audience; and the survey would have been unproductive if the aim had been to determine the audience attraction of [*139] the marihuana party because it would be impossible to determine whether the 10 to 10:30 p.m. WBBM-TV audience watched the end of the movie or watched the news program which followed at 10:17 p.m. n14
n14 The mere fact that WBBM-TV's audience ratings for this time period for the month of November 1967 improved vis-a-vis those of its competitors does not, in our view, demonstrate that the marihuana party was presented for the purpose of hypoing WBBM-TV's audience ratings.
48. There is, of course, the entirely different issue of whether WBBM-TV presented a sensational news program in order to increase its audience. Arguments could be made that, on the one hand, the question of drug abuse on campuses could be presented effectively in other, much less sensational fashion, and, on the other hand, that this type of visual presentation is peculiarly the function of television -- that it gets the audience's attention (an obvious prerequisite), has much more impact upon the audience, and gets it thinking about the subject. We have recently commented on this aspect. Letter to American Broadcasting Company, F.C.C. 69-192 supra, p. 7, and letter to Mr. Dan Sanders, F.C.C. 69-302, March 26, 1969. We adhere to that discussion here. We do not denigrate the importance of the issue. But, as we stated, such situations involve a matter of journalistic judgment by the licensee and are subject to review by media critics and students, but not by the licensing agency. n15
n15 There are other broader issues raised in this respect, but we do not believe that it is appropriate to treat them in this investigative report dealing with WBBM-TV.
49. The final issue is what action should be taken in light of the conclusions on issues (A) and (B), supra. Here again we believe that there are prior precedents in the news fields which are in point and should be followed. In the letter to National Broadcasting Company, 14 F.C.C. 2d 713 (1968), we found that the licensee had not exercised proper supervisory controls with respect to a broadcast by a newscaster on a matter in which he had a conflict of interest never disclosed to the listening public. We requested that the licensee review its supervisory policies in this respect, in order to guard against such occurrences in the future. We did not place any of NBC's licenses in jeopardy and, indeed, it would have been most inappropriate to do so. For, the result of such action would be to discourage robust, wide-open debate on controversial issues -- the very reason for allowing so much spectrum space to broadcasting. The message to the licensee would be to avoid controversial issue programming, because a mistake in this area could jeopardize the broadcaster's entire existence. Such a policy would not serve the public interest, and would be at odds with our long standing assurance that mistakes such as that involved in the NBC case do not call the license into jeopardy. Cf. Report on Editorializing by Broadcast Licenses, 13 F.C.C. 1246, 1255 (1949).
50. The foregoing is equally pertinent here. We are in the sensitive news field and fully recognize that we must tailor our actions to serve best the public interest in the most robust, wide-open debate -- the underpinning of the first amendment. Here there has been a serious mistake and an inadequate investigative report to the Commission, which occurred because of deficient policies in the field of investigative [*140] journalism. The license of WBBM-TV is not in jeopardy because of these mistakes. But, acting, we believe, consistently with the foregoing paramount public interest consideration, CBS should set forth promptly and to the extent appropriate and feasible, for the guidance of its personnel, its policies in this area and, most important, to make appropriate revisions in its policies (including especially those with respect to its supervisory responsibilities), in order to make every reasonable effort to prevent recurrence of this type of mistake.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
SEPARATE STATEMENT OF COMMISSIONER KENNETH A. COX
I am in general agreement with the result reached here. However, some aspects of the opinion trouble me. I would therefore like to set forth some of my views very briefly.
I agree that broadcast investigative journalism is useful and should be encouraged. I think this means that a licensee may have a policy of not reporting to the police certain classes of criminal incidents of which it has advance knowledge -- so long as failure to prevent the incident will not result in injury to person or property. Indeed, I think a broadcaster may, in rare cases, have to follow such a course in order to advise the public of serious matters which should be brought to its attention -- e.g. a pattern of official laxity in enforcing certain criminal statutes. However, such situations impose special responsibilities on the broadcaster, since he must not induce the commission of the illegal acts. Similarly, in covering civil disorders, broadcast newsmen -- especially those in television -- must follow procedures which are least likely to inflame the participants or to lead them to additional acts of violence, whether to accommodate the newsman or to advance propaganda objectives of the rioters.
The problem is even more difficult where the illegal acts involve a small group in a confined place because broadcast coverage, especially television, is more intrusive and overpowering in such circumstances. Thus it is clear that the pot party involved here could not have been filmed without the knowledge, consent, and cooperation of the participants, and that the nature of the party must have been materially changed by the presence of the cameras, lights, and the strangers who manned them. But that does not necessarily mean that the party was not authentic and a proper subject for television coverage -- eventhough prearrangement would clearly be necessary.
If WBBM-TV had learned that a particular group was going to hold a party at a particular time and place, and had obtained permission to film it, then the station could clearly have broadcast the resulting film and interviews. Mr. Missett says this is what happened, and WBBM's management believed him. Our chief examiner found, however, that Missett induced the holding of this party for the purpose of filming it.
CBS says that if WBBM had realized that this was not a group which regularly smoked marihuana together, and that it had come together at this time and place only because of Missett's interest in [*141] filming such an event, it would not have broadcast the film. The Commission says that Missett's intervention amounted to inducement of an illegal act; that WBBM would have discovered this if it had made a proper investigation; and that it could not then have broadcast the film.
I think this is too close a semantic question to permit the making of a clear judgment on contradictory testimony. I agree that licensees should not induce the commission of illegal acts in the sense of procuring or instigating them. But I think the line is drawn too closely here, so that it may be difficult for newsmen to know when their efforts cease to be permissible arrangement and become improper inducement.
in retrospect, a different course of action may seem to have been called for, I
think that the management of WBBM was within its rights in presenting the first
segment of film. A new complication was
introduced by the widely disseminated charge, by a
n16 It was a report of this charge that led the Commission to make an inquiry with respect to this matter. I think that we must always investigate reports from apparently responsible sources that broadcast news has been staged, which implies that it has been fabricated and did not depict an authentic event. It was later necessary to initiate a formal inquiry in order to provide a vehicle for giving the necessary student participants in the party the immunity before they could be compelled to testify. However, I think our hearing should have been conducted on a nonpublic basis.
But when the Commission inquired about the matter, I agree that CBS should have investigated the matter far more carefully and completely than it did. I think its top management should have played a more active role in the investigation, and that its replies should have been more responsive. I think broadcast journalism's vital freedom will be better assured if licensees cooperate willingly and fully with the Commission in examining serious charges of falsification than if they make cursory investigations and try to gloss the whole thing over with broad assurances that everything was perfectly proper. If CBS had done this in the first instance here, it might have avoided both Commission and congressional investigation.
These cases pose a serious problem. I think that we should not investigate charges against broadcast news coverage which clearly involve only disputes as to editorial or reportorial judgment. But when we receive apparently substantial charges of fabrication or falsification of news by licensed users of public frequencies who are required to operate in the public interest, I think we must inquire far enough to satisfy ourselves that there is no clear proof of the alleged misconduct. We have demonstrated our concern that we not go so far as to endanger the freedom of our licensees to investigate and report all matters of concern to the public. See our recent rulings with respect to the networks' coverage of the 1968 Democratic National Convention n17 and WBAI-FM's broadcast of antisemitic material. n18 I think broadcasters [*142] should respond in like spirit. In my judgment they would be better advised to forego ringing statements that they cannot be called on to respond to any inquiry as to their news activities, and to do their best, instead, to develop the facts as to these difficult disputes and to correct any deficiencies which are established, or even seriously indicated. After all, it is to the interest of all of us that public confidence in broadcast journalism be preserved, and the knowledge that only staging is prohibited should not inhibit broadcast journalism.
n17 16 F.C.C. 2d 650 (F.C.C. 69-192 dated February 28, 1969).
n18 17 F.C.C. 2d 204 (F.C.C. 69-301 dated March 26, 1969).
I agree with the ultimate disposition of this matter, but would have read the record somewhat differently as to the course of events preceding our first letter to CBS. I think that WBBM is to be commended for its effort to illuminate an important and pervasive problem. While it might have handled matters differently, I think that it did not induce the commission of a crime in any real sense of the word. I think it should feel free to continue such investigative reporting. I would prefer, therefore, to address ourselves primarily to the need for the formulation of clearer policies in this area by licensees and for full and complete investigation in response to Commission inquiry.
CONCURRING STATEMENT OF COMMISSIONER JAMES J. WADSWORTH
Although I concur in the majority's opinion, I feel that it should have made more clear the shock which at least this member of the Commission felt. A situation arose where a young, ambitious reporter apparently encouraged the commission of a crime for the benefit of his employer's television cameras. The licensee failed to take those reasonable and prudent steps which would have revealed this fact to it in time to have prevented the broadcast in question.
I do not think the majority opinion is strong enough. I agree that it is not our purpose to discourage or inhibit legitimate investigative reporting, but I think it should be made even more clear that the licensee here, as well as all other licensees, must have a specific policy for the guidance of its personnel which will make known to them that they may in no way stimulate the commission of a crime under the aegis of investigative reporting. The FCC can expect no less of its licensees.
Explanatory Note for Preliminary Dissenting Opinion of Commissioner Nicholas Johnson
My dissenting statement regarding the Commission's disposition of the WBBM pot party complaint is in preliminary draft form and will be revised and reissued in the future. A note of explanation is in order.
In one sense the FCC can be charged with taking too long on this matter. The programs in question were, after all, broadcast in 1967. During the intervening time there has necessarily been some anxiety in the broadcast journalism fraternity as to how the case might be resolved. This has been unsettling and unfortunate.
In another sense, however, the case has been handled with unwarranted speed. A final draft of the majority statement was not prepared until last week. The meeting schedule on other matters this week has been a heavy one. We have not, therefore, in my judgment, taken [*143] sufficient time to consider the serious issues involved in this case and to evolve constructive standards for what all would concede to be an extremely difficult area of law and journalism. The Commission has certainly not considered this draft opinion of mine. Its reason is noteworthy.
We are confronted at the FCC with a problem of leaks. Staff documents are thoroughly reported and discussed in the trade press before they come to the attention of the Commissioners. Commission actions are known and reported before they have been made public by the agency. This is a matter of considerable continual embarrassment to the Commission at a minimum, and a matter of potential legal or criminal consequence on its most serious occasions. It is but one consequence of a self-protective, self-serving subgovernment, a phenomenon colloquially characterized as a captured agency serving the bidding of the very industry it was setup to regulate. One of the reasons we are now pressing ourselves into hasty Commission action is the fear that the majority opinion in the WBBM case will probably appear in the trade press Monday morning whether we release it today or not. I have no way of knowing, but I certainly wouldn't have been surprised if it had happened. (See any issue of "Broadcasting" or "Television Digest.") But I think the Commission is following an unwise course. Who are we fooling? When long feature stories appear in magazines that are first distributed Saturday evening, will anyone seriously believe they were written sometime after 3:00 p.m. Friday afternoon -- when the documents involved were first legitimately available to the press? Won't everyone assume they were written earlier in the week based on leaked documents anyway, with minor corrections at the last minute? Be that as it may, it does not seem to me a proper consideration for this agency in formulating opinions dealing with matters of major national importance. If we have leaks, we have leaks. Let us not also have ill-considered opinions.
In view of the majority's urgency in releasing its opinion, however, I have felt obliged to release my own current draft of a separate opinion in this case at this time. It would have better suited my personal desires and interests to have released nothing now. But there is a divergence of view among the Commissioners, much continued analysis of these issues remains to be done by agency, industry, and working journalists alike, and I believe that all are entitled to know as best they can where they stand.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
November 1 and 2, 1967, the CBS-owned television station in
marihuana party was initiated early in October 1967, when John Missett, a
reporter for WBBM-TV, contacted a student of
WBBM-TV's purpose in televising this marihuana party, according to witnesses, was to dramatize the widespread use of marihuana among college students and to inform the public as to the seriousness of the problem. The narration accompanying the program reflects this position:
the eyes of the law you are witnessing a crime. Under
* * *
These people are risking more than just a jail sentence by smoking marihuana. Conviction on a narcotics charge can mean the end to a career, expulsion from college, or high school. In our next segment, we take a look at the legal and medical aspects of smoking marihuana * * *. All concede the report was a serious journalistic effort to deal with an important issue.
Confronted with the question of improper conduct on the part of CBS, the Commission majority has responded by constructing a number of guidelines supported by miscellaneous and varying references to the term solicitation, in order to warn WBBM-TV -- and necessarily the rest of the television industry as well -- not to commit the serious mistake of arranging (to some undefined extent) an illegal event. I believe, and for the reasons stated below will attempt to show, that this move is at least journalistically unwise, and may even be unconstitutional.
I. The context of news staging
In recent months, the performance of the major news media, including television, has become the object of increased public and official scrutiny. Much of it has been critical. And much of it has come from the numerous charges of news staging recently received by this Commission.
newsmen, for example, were said to have brought their own picket signs to a
three networks were charged with having staged a number of events during the
August 1968, Democratic National Convention in
For more than a year the Commission has had before it charges of staging by CBS in its filming of the "Poor People's March" in Marks, Miss. Charges have been made that network newsmen made suggestions as to what clothing should be worn during filming, that automobiles be moved away from homes being photographed, that TV antennas were not shown, and that a local Negro policeman was offered $5 to say that Negroes were starving in Marks. See, e.g., volume 114, Congressional Record page H 3296 (daily edition, May 2, 1968).
The Commission also has before it charges that CBS's documentary, "Hunger in America," first shown over the CBS network on May 21, 1968, identified a San Antonio baby as dying of starvation when the network either knew, or should have known, that the infant's death was unrelated to starvation or malnutrition. See, e.g., volume 115, Congressional Record page H 2309 (daily edition, Mar. 27, 1969).
finally, some time ago news stories in various publications charged that CBS
network employees and officials had participated in plans for, and filming of,
an armed invasion of
the Commission is confronted with charges that CBS officials and employees are
implicated in the staging or prearranging of individuals smoking marihuana (a
pot party) filmed by and televised over the CBS-owned television station,
such as these, and others like them, are serious for a number of reasons. Although for thousands of years many
believed that when man looks at the world he perceives not reality but some
image of a greater truth concealed from view, television and other modern forms
of communication have stood this ancient notion on its head. For many today, truth is the image of
reality seen on television. From
"Walter Cronkite," to "Local News," to "
For this reason, the integrity of the mass media is essential to its role of communicating honest opinion and accurate information. When people lose their faith in even isolated incidents of news as they are depicted to them, they will begin to distrust all news presentations. It is therefore essential that no element of falsity or deception creep into the news. Once it does, like the proverbial "rotten apple," the rest of the barrel will decay.
important, democracies function, or fail to function, on the accuracy of the
information and opinion supplied to their citizens. When voters cast their ballots for law and order and against
violence, for example, they do so on the basis of what they understand to be
the true state of the world. If they
believe that militant students carried picket signs in
It is essential, therefore, that public confidence in the integrity of the broadcaster's product be maintained. In this, the FCC's important role is to evolve rules and standards for proper licensee behavior in the area of investigative reporting. Since its inception, however, the FCC has received and disposed of charges of improper broadcaster behavior largely in a haphazard case-by-case way. This approach simply cannot continue. The FCC must now begin to formulate a consistent approach to the broad range of staging problems. Its responsibilities are threefold: (1) It must evolve, clearly and rationally, precise standards that all can understand. (2) It must apply these standards firmly and fairly to all its licensees, from the smallest radio station to the largest and most politically and economically powerful television network. (3) It must assume the burden of providing public understanding of its decisions; it must realize that it is just as important to explain to an outraged public why seemingly illegal behavior is appropriate and desirable as it is to explain to a placid public why a serious offense has been committed.
In my judgment, the FCC has failed each of these responsibilities today.
than 500 years have passed since Johann Gutenberg invented moveable type, and our
courts and legislatures have had the leisure of centuries to develop standards
of propriety and ethics regarding print journalism. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964);
Staging is a widely thrown charge today. What do we mean by it? To what extent are all events affected in some way by the presence of television in our society generally, or in particular events? What degree of cooperation between television journalist and subject is permissible (or even desirable), and what should be discouraged? These are issues with which thoughtful electronic newsmen, journalists. writers, and cameramen are struggling today. They need the FCC's support against corporate management that is all too willing to sacrifice their first amendment rights and responsibilities upon the altar of comfortable, complacent, noncontroversial programming. The public is entitled to a statement from this agency on the issues surrounding staging -- so it can better understand the reasons for permissible conduct as well as the evils of journalistic abuses. Confusion, corporate protection, and vague generalizations serve no one. And I'm afraid the Commission majority has offered us little more.
II. The majority's guidelines
receiving evidence and weighing testimony at a hearing in
Without attempting adequately to define prearrangement, or describe the extent to which a licensee must become involved in the occurrence of a news event before it may be thought to have been prearranged (or encouraged or solicited), the majority sets forth its notion of the line between permissible and impermissible news staging or prearranging. Its basic conclusion or guideline for the permissible limits on investigative reporting is contained in paragraphs 30-31 of its decision. In essence, the majority's guidelines are that broadcast licensees cannot investigate, film, broadcast, or otherwise inquire into certain newsworthy events if three conditions are present: (1) The event in question was illegal; and either (2) the licensee induced (i.e., encouraged, solicited, or prearranged) the occurrence of the event in question; or (3) the licensee was obliged not to film or report the event, but rather to disclose its impending occurrence to the police in advance.
The majority then describes WBBM-TV's conduct in violating these guidelines as a serious mistake, and asks CBS, its licensee, to set forth promptly its policies in the area and make appropriate revisions in its policies * * * in order to make every reasonable effort to prevent recurrence of this type of mistake. (Majority opinion, par. 50.) Although the majority expressly states that the license of WBBM-TV is not in jeopardy due to its mistake, it ominously fails to state what would happen if WBBM-TV or any other television licensee should deliberately arrange, film, or broadcast a similar [*148] illegal incident, not by mistake, but out of a clear and forthright station policy encouraging such investigative reporting. Although the majority states its willingness to forgive an occasional mistake -- and even a serious one – its clear view is that such conduct is improper and inconsistent with the public interest. (Majority opinion, par. 32.) Today's majority decision, therefore, clearly warns all broadcast licensees not to engage in investigative reporting which exceeds the guidelines contained in the majority's opinion. There seems little doubt that deliberate violations of the majority's decision might easily lead to punitive sanctions. Indeed, one is left with the uncomfortable impression that -- given the seriousness of this offense -- were the errant licensee someone without the political and economic power of a CBS, the sanction might well have been more than the somewhat ironic slap-on-the-wrist administered here.
In any event, it is clear to me that the majority's decision will effectively chill or deter broadcast stations from engaging to the fullest extent in broadcast investigation and journalism. For these reasons it may well be unconstitutional.
III. The constitutional deficiencies
A. Basic principles
Madison, a leading spirit in the drafting of the first amendment, stated his
view on the freedom of the press in his report on the
degree of abuse is inseparable from the proper use of everything, and and in no
instance is this more true than in that of the press. It has accordingly been decided by the practice of the States,
that "it is better to leave a few of its noxious branches to their
luxuriant growth, than, by pruning them away, to injure the vigour of those
yielding the proper fruits." And can the wisdom of this policy be doubted
by any who reflect that to the press alone, chequered as it is with abuses, the
world is indebted for all the triumphs which
have been gained by reason and humanity over error and oppression. * * * (Emphasis supplied.) 4 Elliot's
Debates on the Federal Constitution 570-71 (1876). And, as the majority
correctly states, it is beyond doubt that radio and television are equally
entitled to the first amendment's protection.
See majority opinion, paragraph 23; Rumely v.
This does not mean, of course, that the Government in general, or the FCC in particular, are forbidden from any actions that in any way involve the verbal expression of others. I will have more to say of such proper Government actions later. But for now, let us address the general principles from which the exceptions must be carved.
It seems clear that freedom of the press covers all aspects of newspaper and broadcast journalism -- from the initial processes of news gathering, to the eventual printing and dissemination of that news. Absent the showing of some compelling and carefully articulated governmental interest, therefore, this Commission can no more prevent a broadcast licensee from broadcasting certain events than it can bar the original filming of those events. The newsgathering activities of WBBM-TV and Missett, its reporter, therefore, are at least entitled initially to a presumption of constitutional protection -- albeit a rebuttable presumption.
[*149] The essential question involved in this case is whether Missett's and therefore CBS's prearrangement of the activities in question took them beyond the pale of constitutional protection. There have always, of course, been instances when freedom of the press has been restricted -- for example, in cases of libel and obscenity. But whenever the Government wishes to enforce direct prohibitions on the press, it must first conclusively demonstrate that compelling governmental justifications exist to support those prohibitions -- or, otherwise stated, that the expression in question does not come within the first amendment.
the threat of potential governmental sanctions, which impose a chilling and deterring
effect upon the full and free exercise of first amendment freedoms, have
sometimes been held to be barred by the Constitution. "(The) fact that no direct restraint or punishment is
imposed * * * does not determine the free speech question. Under some circumstances, indirect
discouragements undoubtedly have the same coercive effect upon the exercise of
first amendment rights as imprisonment, fines, injunctions, or taxes."
Communications Ass'n v. Douds, 339
Because the majority's guidelines pose the threat of potential sanctions for certain specified conduct by broadcast licensees operating in the first amendment area, they must be given close constitutional scrutiny. B. The use of solicitation in the majority's opinion
According to the majority's opinion, a television crew cannot even film, much less broadcast, a news event when the following elements are present: (1) The licensee solicited the occurrence of the event in question -- i.e., induced, encouraged, or generally engaged in conduct but for which the event would not have occurred in the manner it did; and either (2) the event in question was illegal; or (3) the licensee had a duty to warn the police in advance of the event's impending occurrence, rather than film it. Whereas I have serious difficulties with each of these elements, the first element, in my view, unjustifiably limits the freedom of broadcast licensees to gather and disseminate news and information.
1. Vagueness and overbreadth
An essential part of the majority's test for news staging involves the extent to which it can be said that actions by a broadcast licensee caused or induced the occurrence of the illegal event in question. Throughout its opinion and in support of its holding that a licensee cannot induce the commission of a crime such as the use of marihuana (majority opinion, at par. 31), the majority invokes a plethora of vague and potentially unlimited terms to describe that element of its test.
Thus, we are told that the pot party was: In some manner arranged (par. 5); was held at the behest of Missett and, but for his solicitation, [*150] would not have been held on that day, nor have included the eight people who attended(par. 5); held at the investigation and behest of WBBM-TV's representative (par. 15): and that (without) Missett's activities, these particular persons would not have gathered to smoke marihuana at this time and place (par. 28). Further, broadcasters are warned that they cannot encourage or induce the commission of a crime (par. 25), and told they must not encourage, solicit, induce, support through payment, etc. any illegal activity. And to top-it-all off, the majority announces its intention to make clear that we are using the term, induce, not in any sense of the criminal or related law * * *, but in its plain dictionary sense (to bring about; cause; effect * * * to lead on to some action, etc.) (par. 31, n. 10). n19
n19 The dictionary definition apparently relied on is even broader:
"1. To lead on to some action, condition,
belief, etc.; prevail on; persuade. 2. to bring on; bring about; cause; effect:
as, indigestion is induced by overeating." Webster,
majority's guidelines for industry self-restraint in prearranging the
investigation and filming of illegal conduct suffer from two fatal
deficiencies: vagueness and overbreadth.
As the Supreme Court has long recognized, a statute, guideline,
decision, mandate, or order is vague when it forbids or requires the doing of
an act in terms so vague that men of common intelligence must necessarily guess
at its meaning and differ as to its application. * * * Zwickler v. Koota,
A mandate, order, or guideline is overbroad when, by overreaching, it prohibits both permissible as well as impermissible conduct. The vice of an overly broad guideline is its violation of the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Zwickler v. Koota, supra at 250.
Can it be seriously contended that the majority has, without any vagueness or overbreadth, defined precisely that amount of conduct which broadcast licensees may or may not undertake? Clearly not.
the majority attempts to define induce by reference to the plain dictionary
sense of the word (majority opinion, par. 31, n. 10), it in fact uses
throughout its opinion many vague terms with different meanings to refer to the
same general concept -- e.g., arrange, instigate, at the behest of, encourage,
induce, support through payment, bring about, cause, effect, lead on to some
action, and but for which. The vice of
vagueness inherent in this confusion of terms is obvious. Does a television crew, for example,
encourage students to enter a university administration building and conduct an
illegal sitin by stationing its cameras next to the building's entrance? Does a television station induce employees
of a Federal agency to leak currently pending items of public interest to its
reporters in advance of publication by its fraternization with agency
employees? Does a [*151]
television station support through payment criminal activities when it
pays travel expenses to obtain an interview with a gambler, a drug peddler, a
prostitute, or a member of the mafia?
Does a broadcaster bring about the violation of the smoking laws when he
arranges to film a panel discussion of 15 year olds who believe the smoking age
should be lowered -- and in the course of the discussion several of them light
up (tobacco) cigarettes to prove their point?
Can it be said that, but for the cigarette advertisements broadcast by
numerous television stations many youngsters would not violate the law and
smoke before the legal age? In sum, is
it not obvious, to paraphrase the Supreme Court in another context, that the
majority's regulatory maze of terms and loose definitions is wholly lacking in
terms susceptible of objective measurement?
Keyishian v. Board of Regents, 385
majority's guidelines are also overly broad to the extent they prohibit
activities which appear to be constitutionally protected. For example, Mr. William R. Baird was
recently invited to appear as a guest on "The Mike Douglas Show." See
Playboy, June 1969, page 64. Mr. Baird,
a crusader for birth control, was at the time fighting a criminal conviction
and 10-year sentence for displaying a birth-control pill and handing out
contraceptive samples during a lecture in
examples are obvious. The majority's
guidelines would prevent a television station from arranging for a Negro couple
to purchase a house in violation of racially restrictive (but unconstitutional)
covenants in order to film a television documentary on discrimination in
housing -- a documentary which might lead to the law's elimination by the
courts or the legislature. A television
station might be guilty of a serious mistake if it contacted a selective
service counselor on a college campus who felt morally compelled in certain
cases to advise draft-age students to move to
There may be ways of drawing precise lines between various types of licensee conduct which will leave no doubt how far broadcasters may go. There is no doubt in my mind as to the propriety and constitutionality of appropriate and precise FCC standards. But it is equally [*152] clear the majority has not drawn them. Because its "but-for" test of causation extends into almost every aspect of news reporting, it will force licensees to refrain from many otherwise constitutionally protected activities. As the Supreme Court said in New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964), an overly broad rule leads to self-censorship in which persons are deterred from acting in otherwise constitutionally protected ways. They tend to make only statements which steer far wider of the unlawful zone. * * * The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the first * * * amendment. * * * n20
n20 The defect in the Commission's action
today, in my view, is its vagueness and overbreadth. Needless to say, I am not urging a constitutional argument that
any time a broadcaster alleges that he finds an FCC rule or practice to be
chilling that it is also, automatically, unconstitutional. The Communications Act, and our regulations
and decisions, can quite properly include, in my judgment, such provisions as
the fairness doctrine, equal opportunity, and personal attack rules,
prohibitions on lotteries, restrictions on undisclosed bugging or wiretapping
(e.g., as allegedly occurred when an NBC employee reportedly bugged a private
meeting room at the Democratic National Convention in
2. The appropriate standards
if one were to conclude that the majority's guidelines for licensee
self-regulation were not unconstitutionally vague and overly broad, the
majority 's entire approach to the problem of soliciting is seriously
deficient. The majority has taken the
hearing examiner's factual findings concerning Missett's activities and used
them to reach the quasi-legal conclusion that they constituted impermissible
solicitation of an illegal event. Yet,
it is important to note, the majority has done so without any reference to the
case or statutory law of
First, it only serves to emphasize how far-reaching and overly broad the majority's guidelines really are. One would have thought the majority would recognize that first amendment activities of news gathering must be allowed to expand at least up to the benchmark of the civil or criminal law. Yet the majority is apparently unwilling to concede even this. By ignoring the carefully constructed common law and statutory concepts of solicitation, as well as the related concepts of conspiracy, misprison of a felony, aiding and abetting, and entrapment -- and all the inherent safeguards built into those judicial formulations -- the majority rejects the only available, reasonably definite guidelines for adjudging activities such as those here said to be illegal. It seems clear, however, as a matter of constitutional law, that the [*153] freedoms of speech and the press prohibit restrictions that fall short of criminal conduct. See, e.g., Liberty Lobby, Inc., v. Pearson, 261 F. Supp. 726, 727 (D.D.C. 1966), aff'd 390 F. 2d 489 (D.C. Cir. 1968).
it is not clear that Missett's activities in arranging the marihuana party in
question can be characterized as solicitation within the meaning of the
criminal law. And, indeed, it would
n21 As there are apparently no
n22 If I say, for example, "Let's have a party at my house," 10 people come, and each bring records, refreshments, and guests, in one sense the party is a result of my solicitation, but in another sense my individual role is only to provide the occasion for the event and not to compel its occurrence or supply its direct or complete cause.
In law there are two separate (although not always clear) notions of causality: "direct" or "but for" causality; and "proximate" or "legal" causality. The first is satisfied if the particular event in question would not have happened "but for" the presence of the factor singled out for attention. Thus, if A leaves a loaded revolver lying on a table in B's living room, and B picks it up and shoots C, the shooting would not have happened "but for" A's leaving the revolver within B's reach. Of course, there are a countless number of factors "but for" the presence of which the event would not have occurred -- including the manufacture of the gun, the discovery of gunpowder, and so forth. But far more is necessary before the second notion of "legal" causality would be satisfied, such that A would be held liable or to some extent responsible for B 's shooting C.
although I have gone through this analysis to demonstrate that Missett 's
actions were insufficient to constitute criminal solicitation [*154]
even if Missett's activities should be construed as solicitation for purposes
Court has intimated that stricter standards of permissible statutory vagueness
may be applied to a statute having a potentially inhibiting 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.
* * * Judge Holtzoff addressed the question most directly in
The courts may not review the manner in which a newspaper man obtains his information and may not restrain the publication of news merely because the person responsible for the publication "obtained it in a manner that may perhaps be illegal or immoral." It would be a far-reaching limitation on the freedom of the press if courts were endowed with power to review the manner in which the press obtains its information. * * * If such were the law, we would not have a free press; we would have a controlled press. Such, however, is not the law (Quotes supplied.)
sum, the majority has established guidelines for self-censorship by the
broadcasting industry in the realm of investigative news reporting -- under the
threat of sanctions for lack of compliance.
The standards may well be unconstitutionally vague and overly broad by
failing to warn broadcasters when their activities cross the line into [*155]
impermissible conduct, and by prohibiting activities which cannot be
constitutionally proscribed. In addition,
the majority makes a finding that Missett solicited the marihuana party in
question -- without making any reference to the
IV. The broader issues
The majority today has done far more than erect a highly efficient in terrorem mechanism n23 of deterrent censorship which may chill the full and free exercise of broadcast journalism. It has failed to grapple with the entire field of broadcast news staging by defining and distinguishing all the separate threads that run through the area.
n23 Keyishian v. Board of Regents,
When charges of news staging arise, it is essential that the media come forward to assist the Commission in formulating guidelines consistent at the same time with the first amendment and the public interest. Newspapers and other print media have a long and proud tradition of defending their freedom to publish fact and opinion as they see fit. Yet the record of broadcast journalism is spotty indeed. Not only have broadcasters, both individually and in concert, * * * traditionally avoided controversial programming because sponsors are hesitant to become even subliminally associated with opinions disagreeable to potential purchasers, Note, The Federal Communications Commission's Fairness Regulations, 54 Cornell L. Rev. 294, 296 (1969), but they have primarily invoked the first amendment's protections for completely commercial and nonideological ends. * * * Barron, An Emerging First Amendment Right of Access to the Media?, 37 Geo. Wash. L. Rev. 487, 502 (1969). A study of the occasions on which the broadcasting industry has raised the banner of free speech leaves one with the distinct suspicion that these occasions almost invariably coincide with the industry's monetary self-interests. United Federation of Teachers, 17 F.C.C. 2d 204, 210 (1969) (concurring opinion).
The heads of the three television networks have recently spoken out against what they view to be the threat of governmental restraints on their journalistic freedom. Julian Goodman, the president of NBC, fears that television is now under threat of restriction and control. Frank Stanton, the president of CBS, states that attempts are being made to block us. Elmer Lower, president of ABC News, thinks television may face the prospect of some form of censorship.
[*156] I have publicly disagreed. I have argued that the real threat of censorship over television's programming content comes not from the government, but from the networks themselves -- that they have been all too eager to keep off the Nation's television screens anything they find inconsistent with their own personal philosophies or corporate profits. It has been my increasing suspicion that the networks are concerned primarily with safe, cautious, bland, don't-rock-the-boat, profit-maximizing programming, not the brand of hard-hitting, controversial, investigative analysis they are so capable of producing. United Federation of Teachers, 17 F.C.C. 2d 204, 210 (1969) (concurring opinion).
It is my fear, therefore, that the broadcasting industry will find it commercially profitable simply to acquiesce in today's majority opinion. To be sure, when corporate pocketbooks have been threatened in the past, the networks have reached deep into their coffers to fight lengthy and complicated appeals all the way to the U.S. Supreme Court. That has been the case with the FCC's personal attack doctrines and its cigarette fairness ruling. The essential question now is: will they make a similar effort in this case? Will they use their resources to challenge what I believe to be unreasonable constraints which the Commission majority has placed upon the freedom and latitude with which newsmen and investigative journalists search out and report on pressing social problems? Will the television industry spend as much challenging the majority's vague and overly broad guidelines as it does placing nationwide full page newspaper ads with famous Americans praising the freedom of the press?
If not, if the broadcasting industry merely acquiesces in the majority's guidelines and opts for the safer programming of soap operas and situation comedies, their credibility as advocates for the freedoms of speech and the press will be lost. And in the longrun, both the industry and the American viewer will suffer. If the television industry is unwilling to champion the citizens' first amendment rights to receive the broadest possible range of information concerning contemporary social problems, we will all be losers.
It is not within the scope of this dissenting opinion to set forth all the various distinctions that complicate the analysis of news staging. It seems clear, however, that such an analysis would include mention of at least the following elements: (1) The extent to which television caused, or in some way influenced the occurrence in question; (2) the legality of the event in question -- and whether society in general views the crime as forgivable (e.g., the dissemination of birth control information) or unforgivable (e.g., the smoking of marihuana, prostitution, etc.); and (3) the duty of the broadcaster to inform the police in advance of an impending event's occurrence instead of filming it. This list is by no means complete. But it may at least serve to initiate discussion in an area presently devoid of analysis. For purposes of illustration, therefore, the following distinctions may be useful. A. Impact of the media on the occurrence of newsworthy events
At a news conference, the presence of the television cameras and lights causes the speaker to look in certain directions (into the cameras), speak in certain ways (succinctly, and into the microphones), [*157] dress in certain ways (blue shirt, slight makeup), and even deliver his thoughts in certain ways (short quotable statements suitable for 30-second television news clips). Indeed, there are some events which would not occur at all but for the presence of the news media. One initial question, therefore, is to what degree was a particular event caused by the presence of television? The following are some suggested distinctions between the ways in which the presence or conduct of television influences events.
First. -- Of course, there are those events which occur without (or despite) the presence of the media, and which may be filmed and presented precisely as they occur. These hard news events include floods, traffic accidents, large construction projects, and the like.
Second. -- There are events which occur without the presence of the media, but which are altered through their presentation simply because they must be reproduced through an electronic journalistic medium. Conventions and graduation exercises might be examples. Television lights change the shadows and skin tones in the face, and microphones electronically amplify the voice. Further, filmed television reports necessarily require editing, and probably no two reporters would delete the same segments. What is presented to the viewer, and how, is therefore a function of the tastes and attitudes of many editors -- the cameraman, the director, the producer, and so forth.
Third. -- There are events which occur without the presence of the media but are distorted, edited, slanted, or censored by the media in the process of presentation. Thus, a video tape containing a short statement by some person can be edited: the eliminating of the word, not, for example, might completely reverse its meaning. The essential point in the first three illustrations is that the presence of the media does not cause events to occur, nor influence the way in which they happen, but that the media may depict them more or less accurately.
Fourth. -- There are events that would have occurred without the media, but which are altered by those planning the events to suit the convenience of the media. The best examples are press conferences, demonstrations, and the like. Often the time, place, conditions, and even the content of a speech or press conference are tailored for radio and television. For a demonstration to be effective, its instigators may desire that it receive radio, television, and press coverage. Accordingly, demonstrations are held in places easily accessible by the press. Dramatic locations are chosen in order to make the event more interesting to television's viewers -- the White House has been found to be a popular backdrop. Clothes (even costumes), picket signs, songs, etc., may all be used with the media in mind. Of course, these events might occur even without media coverage. But the presence of the media causes their organizers to alter and shape them in subtle and important ways.
Fifth. -- There are events which would 'have occurred anyway, but persons employed by the media take the lead in arranging the time, place, participants, and so forth. For example, a television station may want to televise an annual debate between colleges around the State. The station may take the lead in arranging the time and place, and may even specify the participants -- choosing, for example, particular colleges from various regions of the State to obtain an even geographical representation. The media, therefore, may be said to [*158] have induced the occurrence of the debate on a particular day, in a particular place, at a particular time, and with particular participants. But in a more important sense the debate would have occurred anyway and was caused by decisions made by individuals in the colleges long beforehand. WBBM-TV's pot party may well fall into this class of events.
-- There are events which are planned by others, but would not occur without
(but for) the presence of the media. A public
figure may, for example, wish to make a statement on a matter of concern to him
and convey it to the media and thus to millions of citizens. If he discovers that the press cannot
attend, he may cancel the statement.
President Nixon's recent
Seventh. -- There are events which are caused exclusively by television -- such as panel discussion shows in a television studio (reports of which appear in the next day's newspapers). And such programs have, in turn, themselves affected events, attitudes and actions in a community, whether for good or ill. For example, a media-staged, on-camera confrontation between blacks and whites who would not otherwise have spoken with one another might bring viewers to change their own racial views.
Eigth. -- And finally, there are events that indirectly result from the sheer presence of mass media in our culture. A riot, for example, is in an important sense a form of communication -- someone crying out for attention and the opportunity to be heard. It might not happen if ghetto residents had access to the media. (As the young man in Watts said the day after the 1965 disorders, "Ain't nobody come down here and listen to us before.") In another important sense, the level of violence in our society may directly or indirectly be caused by continual physical violence on television entertainment programs.
This partial analysis of the many senses in which the presence of television and other media may influence the occurrence of various events should at least indicate that the majority's test for solicitation or news staging -- would the event have happened differently but for the media? -- encompasses an almost unlimited number of usefully distinguishable occurrences. The majority's primary mistake lies in adopting a but for test of causation. This test is excessively vague and encompasses far too much for constitutional validity.
B. The illegality of the event
The majority's proscriptions apply to broadcast licensees, of course, only where the event in question involves the commission of a crime. (Majority opinion, pars. 31-32.) The crime here involved the smoking or possession of marihuana. Although the majority draws an important distinction between different types of illegal conduct, in a different portion of its opinion, relating to the duty of licensees to disclose an impending crime (see par. 30, "violent situations where a participant's life or safety or someone's significant property interest was at stake"), it fails to make a similar distinction in the type of conduct the licensee's newsmen can legitimately influence. Apparently, therefore, so long as the newsman induced or encouraged the occurrence of [*159] the illegal event in question to some extent, it does not matter whether the event involved a crime of violence (murder, robbery, mugging, kidnapping, etc.) or not -- the broadcast of either is equally proscribed.
It is my feeling that this approach fails to acknowledge the relatively common distinction between crimes with and without victims. In a shooting, stabbing or robbery there are clearly victims -- those individuals who suffer from the criminal acts. In other areas, however, there may be no victim in the conventional sense. Examples of crimes without victims might include gambling, prostitution, sexual conduct between consenting adults, the dissemination of birth control information, and so forth. In all these cases, the individuals involved consent to the occurrence defined as a crime, and are therefore not injured against their will.
courts have recently used such a distinction to prevent the punishment of
individuals engaging in this kind of behavior.
C. Disclosure to the police
There is a third thread running through the problem of staging -- and that is the extent of the duty of news reporters to disclose or report the impending occurrence of an illegal event to the police or proper authorities, instead of filming that event. Many would be outraged to hear of a television reporter asking a member of an armed robbery gang or kidnapping ring to arrange a robbery or kidnapping just so his television crew could film the event. Many would feel his primary duty would be to report the impending incident to the authorities and not permit it to happen (see majority opinion, par. 30) (although a news photographer was, many years ago, defined for me as a man who, if he saw a fire, would take pictures first and then call the fire department).
However, where the offense involved is a crime without a victim, one which involves no victim other than the person committing the offense, one who consents to any risk of harm which may flow from his [*160] conduct, the obligation society places on the reporter to disclose the crime in advance may be substantially lessened.
It is interesting to note that the tort and criminal law generally do not require individual citizens to warn others of impending danger. Why, then, is the majority willing to impose this duty on newsmen without discussion? The majority may well be right -- broadcast licensees may indeed have greater obligations to warn individuals of impending danger than do private citizens. This obligation may be contained in the broadcast media's statutory obligation to operate in the public interest. On the other hand, there may be important countervailing values in removing any burdens from the press to allow them to exercise their journalistic talents of reporting to the fullest extent. These are difficult issues, and I do not pretend to know the answers. I do believe, however, that the Commission majority has an obligation to the media and the public at least to identify these issues and articulate the rationale for its positions -- not state them as taken for granted.
These three elements -- causation, illegality, and disclosure -- are by no means the only factors that bear on questions of news staging, and they are by no means the only issues in this case. Other elements bearing on the problems of staging might include the extent to which some staging is permissible so long as that fact is disclosed to the public. In some cases, of course, it is obvious to the public that the media arranged an event, and no formal disclosure is required. In other cases the opposite is true. The media, however, at least have the duty not to inform the public they are seeing a spontaneous event when in fact it was prearranged by the media.
There are other important issues in this case -- such as the extent to which newsmen must disclose their sources of information -- which I do not reach today. Suffice it to say that despite increased public attention and criticism of news staging, the Commission majority has not even begun to analyze adequately the multifaceted problems involved in this difficult area. I can only hope that public scrutiny will eventually lead to the evolution of what is and is not acceptable journalistic behavior. Once established, standards of news reporting will help remove the widespread current cynicism that greets the present product of the networks and the establishment press. It is not necessary or desirable that a citizenry take literally, and accept whole, everything that reaches it through the mass media. But a nation simply cannot function in a climate in which people think you can't believe anything you hear now-a-days.
It goes without saying that the smoking of marihuana poses today an important and serious social problem. Some believe marihuana is one of the greatest threats to our Nation. Others believe young persons' lives, and relations with peers and parents, are as seriously harmed by stiff criminal penalties and clandestine behavior as by modest use. No one knows. This concern has stimulated some to reconsider the validity of existing laws. The American Civil Liberties Union's "National Policy Statement on Marihuana" adopted on December 15, 1968, for example, questions the constitutionality of existing prohibitions on the use of marihuana. Given this controversial national issue, I believe television can play an important role in informing the American [*161] public of the nature of marihuana and the extent of the problem. From that information may come needed information and further understanding. I do not believe that information, in any form, is ever dangerous; ignorance often is. On this, as on other issues, what this Nation confronts today is not so much a generation gap (see the "CBS Reports" constructive current series under this name) as an education and information gap. It is, in largest measure, a gap between those whose primary source of information and understanding is television, and those who read widely from all sources. On the rare occasions when television endeavors to close this education gap I believe it should be encouraged, not punished.
Most acknowledge the social benefit which flows from investigative reporting -- the discovery and analysis of actions and trends by individuals or groups (such as gambling, betting, abortion rings, black market trading, prostitution, etc.) which have many important social consequences and implications. Society benefits from full, free, and untrammeled investigative reporting. It may, for example, be important for the public to learn about the distribution of birth control information -- a crime in some States. But it may only be possible for a television news staff to present a documentary on this problem if, to some extent, it arranges to be present when the information is conveyed. According to the majority opinion, however, such an arrangement might be illegal and subject the television licensee to censure.
believe there are occasions when this would not be desirable. I believe that more social benefit will
result from the type of investigative reporting conducted by WBBM-TV into one
of our most important and pressing national problems, than will result if the
broadcasting industry permits the guidelines contained in the majority's
opinion to stand without challenge. I
believe there may well be cases in which broadcast licensees may perform a
valuable public service by reporting ostensibly illegal activities, and certain
time, place and manner arrangements may be an indispensable part of that
coverage. Finally, I believe that the
guidelines adopted by the majority are excessively vague and imprecise -- and
therefore will trench upon the freedoms of speech and the press to an
impermissible extent. Supreme Court Justice
Hugo L. Black once wrote: "Censorship is the deadly enemy of freedom and
progress. The plain language of the
Constitution forbids it." Smith v.