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LEXSEE 18 F.C.C.2D 124

 

 

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

 


 

JUDGES:

 

BY THE COMMISSION: COMMISSIONERS COX AND JOHNSON ISSUING SEPARATE STATEMENTS; COMMISSIONER WADSWORTH CONCURRING AND ISSUING A STATEMENT.

 

OPINION:

 

    [*124] REPORT

 

   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 Chicago in October 1968 and, pursuant to Commission directive (F.C.C. 68-891, released Aug. 30, 1968), his findings of fact and certification of record to the Commission (F.C.C. 69M-8) (herein called report) were released on January 6, 1969. CBS, pursuant to its request, was afforded an opportunity to file a response to the chief hearing examiner's findings and a brief in support of its response in addition to the presentation of an oral argument before the Commission en banc on March 3, 1969 (F.C.C. 69-56, released Jan. 22, 1969).

 

   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 North Shore suburbs of Chicago. In the regular course of a daily staff conference, Ferrante mentioned the subject and his interest concerning the North Shore arrests. John Victor Missett, a 23-year-old desk assistant to the assignment editor was present and responded that he was not surprised, because while a student at Northwestern University he had had opportunities to attend marihuana parties. n2 Ferrante was interested and asked Missett to write a memo on the subject and the possibility of WBBM-TV doing a story on the use (including frequency of use) of marihuana. Missett submitted his memo to Ferrante in mid- August 1967, and suggested the possibility of filming or interviewing a marihuana smoker or doing a first-person report on the purchase of marihuana or LSD. Ferrante expressed doubt that it would be possible to film someone smoking. Missett wanted to do a comprehensive report and proposed to concentrate his investigation at Northwestern, the college campus with which he was most familiar. Missett also told Ferrante he believed he could be invited to a marihuana party if he went back to the Northwestern campus. Ferrante told Missett to pursue the matter and it is with regard to his actions in pursuing it that the initial dispute of fact occurs.

 

   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 McGill University, was a graduate student at Northwestern at the time Missett contacted him in early September 1967. According to Spector, Missett (whom he had not met before) came to his apartment and introduced himself as representing CBS, which he said was interested in doing a documentary on marihuana and coming out against [*126] the harshness of the marihuana laws. Spector was emphatic that it was Missett who suggested the idea of filming a pot party and that Missett wanted Spector to arrange a marihuana party in his own apartment so that CBS could film it for broadcast use. Spector clearly recalled the details of his conversation with Missett: Missett wanted "eight to 10 people, cleancut kids" to attend the party; CBS would neither pay them or supply the marihuana; and, although CBS would film the program, it could offer the participants no protection from possible legal prosecution. Spector told Missett that the people he knew smoked alone or in groups of 2 or 3 to minimize risk. Spector suggested a panel show on marihuana. Missett wasn't interested in this type of program. n4 Missett left Spector's apartment without having reached any agreement, saying he would call in a few days; immediately upon Missett's departure Spector spontaneously related the conversation he had just had with Missett to Mrs. Spector, who was then his fiancee. Mrs. Spector was present in the apartment during the entire conversation with Missett although not in the room where it took place.

 

   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 Chicago's four major newspapers to the upcoming event. Bloom also invited Dean Gysel, television critic of the Chicago Daily News, to preview the program, a privilege which was denied to representatives of Northwestern University at about the same time. WBBM-TV explains this action by saying that preview invitations to television critics are a normal occurrence, with the critic welcome to write a notice of the upcoming program but expected to reserve criticism until after the broadcast, whereas permission to preview is denied to outsiders involved in the program. In this instance, Ferrante viewed Northwestern's representative as involved because the filming took place on the Northwestern compus. n6

 

   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 campus in Evanston, Ill. We do not believe that the precise location of this building is material to our decision in that WBBM-TV's identification of it as part of the Northwestern campus was reasonably based upon information distributed by Northwestern University and the erroneous implication that it was owned or controlled by the University was apparently the result of an honest misunderstanding of the facts.

 

   12. Before the broadcast, Sam Saran, in charge of public relations for Northwestern University, contacted Ferrante about the program. Saran was apparently irritated that a marihuana party had been filmed on the campus without consultation with the University. At the same time Saran asked to see the film; his request was refused. Saran advised Franklin M. Kreml, Northwestern's vice president for Planning and Development, of what had occurred and Kreml pursued the matter.

 

   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 Illinois, no attempt was made prior to the broadcast to discuss the legality of the filming with legal counsel.

 

   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 Northwestern University which appeared in the Chicago daily newspapers. The charge was made in bare terms that the film report and broadcast by WBBM-TV News Wednesday which purported to show a group of former and present students of Northwestern University smoking marihuana in an Evanston apartment was staged by the participants and others for the station's filming. (See also footnote 9, infra.) Faced with these charges, Ferrante again spoke to Missett, but again did not ask the identity of any of the participants, and was satisfied that the report of staging was false. Ferrante then called Kenefick, who was in Washington at a meeting with other CBS executives, to discuss the report. Kenefick had already learned of the Northwestern statement and discussed it with John Schneider, president of the CBS Broadcasting group, and Robert D. Wood, president of the CBS Television Stations group. Neither Schneider nor Wood suggested that part II not be broadcast. Likewise, Kenefick and Ferrante did not discuss such a possibility. After speaking to Kenefick, Ferrante wrote a disclaimer of the staging charge which was read prior to the showing of part II on the 10 p.m. news on November 2, 1967.

 

   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 Chicago, at about the same time, Ferrante again questioned Missett and was satisfied with his assurance that the charge was without foundation. Ferrante, based upon his conversation with Missett and later with Kenefick, wrote a disclaimer of the Northwestern charges which preceded the broadcast of part II.

 

   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. Stanton called Richard W. Jencks, the head of the CBS law department, and asked him to get the facts. Stanton made the same request of Schneider, but had no discussion with either Wood or Kenefick. On November 2, he did not know the program was being shown in two parts. Aside from a general description of the program supplied by Schneider, Stanton knew virtually nothing of the events of November 2 at that time, and subsequently left the CBS investigation almost entirely to the law department. The Evanston chief of police sent him the name and address of Missett's coarranger, witness A, in January 1968. A letter was also sent to Kenefick at the same time, containing the same information. No direction was given by Stanton that the witness be interviewed, and he never was by CBS. Stanton merely referred the letter to the law department.

 

   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 Northwestern University, the State's attorney's office, law enforcement officers and WBBM-TV employees. At no time did CBS attempt to interview the party participants or to ascertain their identities. Regardless of how the matter is couched, CBS spoke to only one person (Missett) with actual knowledge of the facts concerning the question of staging. The conversations with public officials and other CBS employees could not, under any circumstances, have yielded additional firsthand facts on this question. CBS defends its omission by saying that the decision to honor Missett 's promises of nondisclosure were made by the CBS law department and other legal counsel.

 

   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 Washington, spoke to WBBM-TV's sales manager who raised the question of ordering the special survey in view of the heavy newspaper promotion. Kenefick told him to order it if he wished. No mention of the survey was made to Wood or Schneider, the CBS executives who had already questioned Kenefick about the part I broadcast. The next day Kenefick was given the results of the survey which showed WBBM-TV outdrawing its competitors in the 10-10:30 p.m. time period, a half hour when WBBM-TV had previously lagged behind its NBC competitor.

 

   DISCUSSION

 

   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 Northwestern University students at the Northwestern campus to point up the pervasiveness of this kind of drug violation at colleges. The party depicted did involve marihuana smoked by Northwestern students (and a teacher and two [*133] college dropouts, so identified) who did smoke marihuana at a campus rooming house apartment (see note 6, supra) where other pot parties had been previously held. In a sense, then, the party was, as stated by one of the students in a subsequent interview with the campus radio outlet, authentic -- it was not staged by actors or nonstudents who did not smoke marihuana or who were pretending to smoke marihuana at some station studio.

 

   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 Northwestern University accused us of staging the party for our news camera. It then stated: "This WBBM-TV categorically denies. We were invited to film the party for use within our news broadcast." While even here the matter is ambiguous, n9 the thrust of WBBM-TV's presentation would appear to be that this party was not being staged for the station; that it was a pot party being held by the students on their own; and that the station was invited to film it for use in the newscast. In short, it would appear that the station was telling the public that it had not induced the holding of this party for its cameras. As we have found, contrary to management 's instruction, that is what did happen here -- Missett did induce the holding of this party. Without Missett's activities, these particular persons would not have gathered to smoke marihuana at this time and place.

 

   n9 Kreml, the Northwestern University official, stated that this statement was based upon his meeting Ferrante and Kenefick and upon his observation of the participants at the party who did not look to him as though they were practiced marihuana smokers. He thus seems to indicate that the thrust of the staging charge was that this was not an authentic pot party in that these were not experienced users of marihuana, but rather students and others willing to be televised by WBBM-TV. In fact, all the participants had previously smoked marihuana.

 

   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 Northwestern University accusation was made, the licensee could not properly deny it, stating that it was invited to film the party, without first checking the critical factor of the arrangements made by Missett. While we can appreciate the licensee's policy of protecting news sources, we believe that it was incumbent upon the licensee at that point to make a check with the one independent source, the participants, and then take appropriate action in light of that check. The licensee could have simply pointed out to Missett that it was incumbent upon the station to reply to the charge; that it could not properly do so without making inquiry of the participants; that it therefore must request that the names be given to a responsible senior news supervisor; and that the confidentiality of the names would continue to be respected (just as it has continued to this date in this proceeding). For, the critical consideration was the integrity of its news operations, and the licensee had to take the necessary, reasonable steps to insure that integrity. This it did not do. n12

 

   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.

 

   CONCLUSION

 

   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.

 


 

CONCURBY:

 

   COX; WADSWORTH

 

CONCUR:

 

   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.

 

   While 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 Northwestern University official, that the party had been staged by the station. n16 There apparently was no factual basis for this allegation, and the university never made any effort to substantiate it. The station did not have much time before the scheduled presentation of the second segment of the program. It made some further inquiry, though it perhaps should have done more. However, I find it hard to fault its management for going ahead as planned.

 

   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.

 


 

DISSENTBY: JOHNSON

 

DISSENT:

 

   DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

 

   On November 1 and 2, 1967, the CBS-owned television station in Chicago, Ill. (WBBM-TV), broadcast a two-part documentary showing a group of young adults smoking marihuana. Eight marihuana smokers had assembled in an apartment near Northwestern University with the knowledge that a film crew from WBBM-TV would be there to photograph the proceedings. WBBM-TV neither paid the participants nor provided the marihuana. Each of the participants had smoked marihuana before, although they had not all smoked it together. Some, but not all of them, had smoked marihuana before in the same apartment. All the participants were over 21. Each of them [*144] had agreed to participate, according to some accounts, in order to communicate to the public their view that marihuana was essentially harmless and that the laws against it were wrong or excessively severe.

 

   The marihuana party was initiated early in October 1967, when John Missett, a reporter for WBBM-TV, contacted a student of Northwestern University (identified as witness A for anonymity at the Commission's October 1968 hearings) who, Missett was informed, had regularly smoked marihuana. Missett told him WBBM-TV was interested in filming and broadcasting a television documentary on marihuana which would include scenes showing students and others smoking marihuana in typical surroundings. Missett asked witness A if he could assemble a group of eight to 12 persons who would be willing to smoke marihuana before WBBM-TV's cameras at a time and place to be arranged by witness A. Witness A indicated he would try, and a day later informed Missett that the necessary arrangements had been made. The films were then made on October 22, 1967, as arranged.

 

   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:

 

   In the eyes of the law you are witnessing a crime. Under Illinois law, possession of marihuana is a crime, punishable by imprisonment for 2 to 10 years for the first offense and up to life in prison for repeaters * * *. Marihuana, or pot as it is better known, has been smoked in America for years, but recently marihuana has become the focal point for controversy and not just on the college campus. For the police, parents, and even the Armed Forces, the controversy has become a dilemma.

 

   * * *

 

   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.

 

   NBC newsmen, for example, were said to have brought their own picket signs to a Claremont College student debate in order to stage [*145] or simulate a nonexistent controversy. (See Los Angeles Times, Nov. 4, 1967, p. 1; FCC Minute Entry, Mar. 20, 1968.)

 

   The three networks were charged with having staged a number of events during the August 1968, Democratic National Convention in Chicago. The U.S. attorney for the Northern District of Illinois, Mr. Thomas A. Foran, stated that he saw a cameraman build a fire out of burning trash in Michigan Avenue, place a "Welcome to Chicago" sign in the fire, and then film its burning. He and an assistant reported also witnessing the filming of a bandaged and supposedly injured individual who, before being photographed, had been conversing (sans bandage) with the photographers. See letter to ABC, CBS, and NBC, 16 F.C.C. 2d 650, 658-59 (1969).

 

   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).

 

   And, 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 Haiti. See "Washington Post," November 25, 1966; "Variety," November 30, 1966, page 1. The matter was never, to my knowledge, investigated by Congress, the Commission, or any similar authority, nor was any official action taken.

 

   Today 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, WBBM-TV, in Chicago. These charges have already been investigated by a Congressional Committee. Deceptive Programming Practices, Report of the Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce, H.R. 91-108, 91st Cong., 1st sess., March 20, 1969.

 

   Charges 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 "Divorce Court," to "Peyton Place," to "Gomer Pyle," to "The Avengers," to "Gunsmoke," to "Combat," to "Vietnam" -- reality blends into unreality for some, and the distinctions become irrevocably blurred. In 1938, Orson Wells terrified [*146] half the eastern seaboard with his radio play reporting an invasion from Mars, "War of the Worlds." Last month millions watched a televised drama of two Americans traveling around the moon. Years ago Sheriff Matt Dillon shot down his first outlaw in a street outside the Dodge saloon. Last month an 11-year-old boy reached for his gun and fired a B-B pellet into the heart of his television tube at an outlaw on the screen. Indeed, many seem unable to distinguish television from reality.

 

   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.

 

   Especially 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 Claremont College demonstrations or burned them in Chicago protests, those voters may cry for restrictive legislation. If these events did not in fact occur at all, the ballots cast become unjustifiable and irrational. Democracy ceases to function, and arbitrariness and injustice enter.

 

   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.

 

   More 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); Near v. Minnesota, 283 U.S. 697 (1931). Television has just turned 21. It is time that it, and the FCC, begin to come forward with standards to govern the obligations of honest disclosure, accuracy of research, and full presentation of information. Today the [*147] FCC has attempted to perform this difficult task without much in the way of industry assistance. Its failure is in part a result of that lack of guidance.

 

   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

 

   After receiving evidence and weighing testimony at a hearing in Chicago in October 1968, the hearing examiner in this case certified his findings of fact to the Commission in a document released on January 9, 1969 (docket No. 18101, F.C.C. 69M-8). In it he concluded that the pot party * * * was "prearranged" for the benefit of CBS, and that this particular party would never have been held "but for" Missett's request. (Id. at par. 101; quotes supplied.) Today the Commission majority accepts this finding.

 

   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

 

   James 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 Virginia resolutions:

 

   Some 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. United States, 197 F. 2d 166, 177 (D.C. Cir. 1951).

 

   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.

 

   Even 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 U.S. 382, 402 (1950). So long as * * * the threat of prosecutions of protected expression (remains) * * * a real and substantial one, (even) the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression. Dombrowski v. Pfister, 380 U.S. 479, 494 (1965); see NAACP v. Button, 371 U.S. 415, 433 (1963).

 

   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, New World Dictionary 744 (1962).

 

   The 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, 389 U.S. 241, 249 (1967). The vice of a vague guideline is that it admonishes people to avoid certain conduct on pain of punishment, but fails to describe precisely what conduct it is they must avoid. The result is that people are forced either to undergo the risk of punishment for conduct they are led to believe is proper, or avoid all acts which might even approach the proscribed zone -- thereby relinquishing their right to engage in constitutionally protected acts.

 

   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.

 

   Although 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 U.S. 589, 604 (1967).

 

   The 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 Massachusetts -- contrary to State law. Assuming that Baird was asked (i.e., encouraged, solicited, or induced) to appear on the program, that he would not have so appeared, but for some prearrangement by the program's officials, and that during the course of this program he advocated birth control and displayed a birth-control pill (illegal actions in Massachusetts), those connected with the program would apparently have violated the guidelines contained in the majority's opinion.

 

   Other 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 Canada to avoid military conscription, and arranged to film the consultations as part of their documentary on the draft. The majority's "but-for" test of solicitation is that whenever an illegal event would not have occurred in precisely the manner it did "but-for" the actions of the media, then the licensee is guilty of serious misconduct (see majority opinion at pars. 5, 25, 28, and 31). This test is so broad that it encompasses virtually any causal factor, including rioting in Watts before the television cameras, illegal assemblies during the Chicago Democratic Convention, and so forth -- events which might not have occurred "but-for" the mere presence of the television cameras.

 

   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 Chicago), requirements of sponsor identification, requirements of surveys of community needs as a part of programming proposals, and so forth. Moreover, the networks hold a position of oligopolistic power in the market place of ideas. With that power goes a concomitant responsibility to evolve standards in these areas as a part of their own informal criteria of acceptable professional behavior. Ultimately, some such standards will become a part of something more formal than the professionals', or the industry's, own standards. The FCC will inevitably continue to announce, as it has since its beginning, individual opinions and general rules regarding such matters. See, e.g., National Broadcasting Co., 14 F.C.C. 2d 713 (1968) (conflict of interest standards expected of newsmen commenting upon events in ways which tend to serve their private economic interests). My position is, simply, that when the FCC announces such standards it has an obligation to be just as rational, tightly analytical, and precise as possible. I feel we have not done so today, and that there may be constitutional defects in our failure.

 

   2. The appropriate standards

 

   Even 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 Illinois which defines the crime of solicitation. The apparent justification for this omission is that the majority has adopted a concept of reprehensible licensee conduct that encompasses far more than the solicitation which comprises a felony or misdemeanor under the laws of many States. (See majority opinion, par. 31, n. 10.) I have several problems with this approach.

 

   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).

 

   Second, 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 appear that Illinois case law confirms this belief. In People v. Clay, 32 Ill. 2d 608, 210 N.E. 2d 221 (1965), for example, n21 the defendant purchased drugs from an undercover agent and at trial argued that he was entrapped (i.e., induced) into making the purchase by the agent's encouragement or solicitation -- that but for the agent's conduct, the purchase would never have been made. The Court ruled against the defendant, finding that although the purchase would not have been made but for the agent's conduct the defendant nevertheless acted on his own volition in buying the drugs, without coercion by the agent, and that entrapment did not exist. The analogy to Missett's case is obvious. At most it can only be said that but for Missett's actions the pot party would not have been held at the apartment in question, on the day in question, at the time in question, and with the specific participants in question. But it is to be doubted whether Missett can be said to have caused or solicited the party in any legally reprehensible sense. n22 All the participants had smoked marihuana before, although they had not all smoked it together. Some of them had been in the apartment before, but not all of them. All of them purchased or brought their own marihuana. Some of them might have smoked it at the same time of day even without the pot party in question. The majority's statement that the party was a direct result (majority opinion, par. 8) of Mr. Missett's actions is, therefore, misleading. Obviously, any of the participants could have refused to attend at the last moment, and obviously the occurrence of the party was the result of individual acts of will, volition, or decision to attend.

 

   n21 As there are apparently no Illinois cases specifically citing Illinois statutory crime of solicitation, contained in (38 Ill. Stats. Anno. Sec. 8-1(a) (Cum. pt. 1969)), I have discussed a case involving the related concept of entrapment.

 

   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.

 

   Third, although I have gone through this analysis to demonstrate that Missett 's actions were insufficient to constitute criminal solicitation [*154] under Illinois law, I do not believe this type of inquiry is appropriate for this Commission without careful attention to the intricate legal problems involved. The FCC is scarcely equipped to function as an administrative agency. It is certainly ill-equipped to function as a court of law. In any event, we should be reluctant to make determinations which are essentially judicial on the basis of standards which fall short of those embodied in the case law particularly when first amendment rights may be involved.

 

   Finally, even if Missett's activities should be construed as solicitation for purposes of Illinois criminal law, I have serious doubts whether this crime could be given its normally broad interpretation when countervailing first amendment rights are involved. The Supreme Court has often held, in analogous areas of law, that the scope of civil and criminal laws must be substantially narrowed when strict enforcement of those laws would interfere with first amendment freedoms. Thus, in Garrison v. Louisiana, 379 U.S. 64 (1964), and New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court carved out exceptions to the criminal and civil laws of libel to encourage unrestrained freedom of the press. In Smith v. California, 361 U.S. 147, 150-52 (1959), the Court promulgated an exception to the criminal law requiring proof that a bookseller knew a book was obscene before he could be convicted of selling obscenity. In Speiser v. Randall, 357 U.S. 513 (1958), the Court held that States could not impose on a taxpayer the burden of proving his entitlement to exemptions from taxation where the device was being applied in a manner tending to cause even a self-imposed restriction of free expression * * *. Smith v. California, supra at 151. And in United States v. O'Brien, 391 U.S. 367, 376 (1968), the Court held that when speech and nonspeech elements are combined in the same course of conduct, only a sufficiently important governmental interest in regulating the nonspeech element can ever justify even incidental limitations on first amendment freedoms -- even though restrictions could be imposed when those speech elements were absent. As the Court said in Smith v. California, supra at 151:

 

   (This) 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 Liberty Lobby, Inc. v. Pearson, 261 F. Supp. 726, 727 (D.D.C. 1966):

 

   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.)

 

   In 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 Illinois law of criminal solicitation. Indeed, the majority is apparently willing to proscribe conduct by the licensee which falls far short of that prohibited by the criminal law. I may concur with Commissioner Cox that Missett's actions do not constitute solicitation, but feel even more strongly that this is a determination which this agency has not even addressed. Finally, there is Supreme Court precedent that indicates that even if Missett's activities might normally be encompassed by the Illinois law of solicitation, when first amendment activities such as news gathering are involved the Constitution may require that exceptions be carved out to permit the full and free exercise of investigative journalism.

 

   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, 385 U.S. 589, 601 (1967).

 

   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.

 

   Sixth. -- 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 Vietnam speech undoubtedly would not have been delivered to the few network technicians in the White House theater at the time it was were they unable to assure him access to the networks' affiliates at that time.

 

   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.

 

   The courts have recently used such a distinction to prevent the punishment of individuals engaging in this kind of behavior. In Stanley v. Georgia, 37 U.S.L.W. 4315, 4317 (Apr. 8, 1969), for example, the Supreme Court held that a man has the right to read or observe what he pleases * * * in the privacy of his own home, and that he cannot be punished for possessing ostensibly obscene literature without some proof that it will cause him to engage in antisocial conduct. Another court has held that (no) constitutionally punishable conduct appears in the case of an individual who prepares (ostensibly obscene) material for his own use or for such personal satisfaction as its creation affords him. In Re Klor, 64 Cal. 2d 816, 415 P.2d 791, 794 (1966). For analogous decisions, see Griswold v. Connecticut, 381 U.S. 479 (1965) (birth control devices); see also One Eleven W. & L., Inc. v. Division of Alcoholic Beverage Control, 50 N.J. 329, 235 A. 2d 12 (1967); Stoumen v. Reilly, 37 Cal. 2d 713, 234 P. 2d 969 (1951). The only point that should be made here is that, in the area of staging illegal events which involve important social problems, we might consider giving the news media greater latitude where those events involve criminal offenses without victims. The Commission majority, however, without any discussion of this question, has flatly barred media intervention in the occurrence of all illegal events. In this, its haste may be unwise.

 

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.

 

   V. Conclusion

 

   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.

 

   I 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. California, 361 U.S. 147, 155, 160 (1959) (concurring opinion). I believe the Commission majority has today ignored that great warning. This Commission should bend over backwards to encourage courageous investigative journalism -- not reach out to stifle it.

 

   I dissent.

 


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