18 Rad. Reg. 2d (P & F) 1031
Hon. Richard L. Ottinger House of Representatives, Washington, D. C.
March 24, 1970
JUDGES: DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX. DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
This is in reply to your letter of February 16, 1970 enclosing a letter to Mr. Leonard Goldenson, President of American Broadcasting Company, concerning the appearance of Miss Judy Collins on the Dick Cavett Show presented over ABC on February 4, and requesting my comments thereon.
Miss Collins complained of the deletion by ABC of certain remarks made by her at the time of her appearance on the Dick Cavett Show on February 4, and stated that, in her view, the action of the network in deleting these remarks from the televised show was a violation of her right of free speech. The matter deleted reflected "[her] opinions and activity both as a witness and observer of the trial." (Letter of Miss Collins to FCC, dated February 6, 1970.)
I agree that the matter raised is a significant one, and I have therefore given it most serious consideration. I have concluded that the ruling made by the staff in its letter of February 25, 1970 to Miss Collins is correct, and would like to amplify the reasons for the ruling.
Except for broadcasts by legally qualified candidates for public office, where the licensee is enjoined from censoring, the licensee is responsible for all material broadcast over his facilities, and thus can and does edit and select the material to be presented. Each licensee makes thousands of programming decisions a year - that some material "works", some does not fit in a particular program, etc.
That the material in question involves discussion of a controversial issue does not take it outside the scope of the licensee's editing and selection process. The licensee must devote a reasonable amount of time to the discussion of controversial issues of public importance, and cannot exclude from the airwaves views with which he disagrees. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 [16 RR 2d 2029] (1969); Report on Editorializing by Broadcast licensees, 13 FCC 1246 (1949). As the Supreme Court stated in Red Lion, the licensee must ". . . conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airways." But he is not a common carrier (see Section 3(h) of the Communications Act) and can exercise judgment as to appropriate spokesmen, time, or manner of presentation of the issue. (In the case of a personal attack or political editorial, the licensee must act in accordance with the requirements of the Commission's Rules and policies - see § § 73.123, 73.300, 73.598 and 73.679.)
This last point is, of course, crucial. A person or group cannot demand that as a matter of right its message be presented over the station's facilities. McIntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597 (3rd Cir. 1945). The licensee does not have to present programming material which he believes either will not serve the needs or interests of his listeners or will not do so as well as other programming material. Report and Statement of Policy Re: Programming Inquiry, 20 Pike & Fischer, Radio Regulations 1902, 25 F. R. 7291. He is thus constantly called upon to make choices between types of programming, and then, within each type, to choose the format and person to appear. If the licensee were deemed to be a common carrier, having to present any matter brought to him which was not obscene, etc., the result would be not only chaotic but a wholly different broadcasting system which Congress has not chosen to adopt.
While the licensee has great discretion, that discretion is, of course, limited by the necessity to act under policies consistent with the public interest standards. A licensee could not reject a presentation of a view on the basis of a policy that he never presented views with which he disagreed, or views of women, or blacks, or red-headed men. We would thus examine into complaints giving significant extrinsic indication of an arbitrary policy inconsistent with the public interest "in the larger and more effective use of radio" (Section 303(g) of the Act). It is, however, not enough simply to state that the licensee has edited a particular presentation and thus deprived one of "free speech." As stated, such editing occurs, and must occur, thousands of times a year.
The policy followed by the Commission in this area was set forth in the Commission's Hunger in America ruling, a copy of which is enclosed. While this policy was formulated prior to my taking office, I do subscribe to it, as shown by the enclosed letter to Mrs.J. R. Paul. The latter ruling was issued following the receipt by the Commission of many inquiries and comments after the address by Vice President Agnew on November 13, 1969.
The foregoing are, I believe, the sound principles to be applied to this case. Miss Collins' complaint does not contain any extrinsic indication of a licensee policy inconsistent with the public interest. It simply states that the licensee edited her remarks, contrary to her claimed right of free speech. This could be advanced in every case of editing, and is not a proper basis for Commission intervention in this sensitive area.
As a further matter on this issue whether ABC is acting under an arbitrary policy in this instance, the Commission has been informed that ABC's decision to delete the remarks of Miss Collins stemmed from its concern over televising material which might be inappropriate in light of the then pending trial. This general subject - the impact of the broadcast of material concerning active litigation on the rights of parties in such litigation to a fair and unprejudiced trial - has been the subject of continuing discussion and debate on a national basis for some period of time. This question has not been definitively resolved, but a licensee such as ABC may clearly adopt a policy in this field, and then make good faith applications of that policy. We take that to be the case here, since there is no basis for any contrary assumption in this case, where Miss Collins was a witness at the trial. The matter is not whether the Commission would reach the same judgment, or whether it was a good or sound one, but only as stated that it be made in good faith. Here again, the above principles are just as applicable, and Commission intervention is proper, I believe, only where there is independent, extrinsic evidence of bad faith or policies inconsistent with the public interest.
I am sorry to have gone on at such length. But, as I said at the outset, I believe that you have raised a most fundamental issue. Finally, I want to stress that the principles set out in Hunger in America, Letter to Mrs. Paul, and here do not vary with the issue on whether the liberal or conservative side has been presented or deleted. On the contrary, the whole thrust of these principles is to keep the Government licensing agency from improperly interfering with broadcast journalism or treatment of the issues, whatever their nature may be. In my views, we simply cannot look over the broadcaster's shoulder as he deals with the issues of the day, and then expect the robust, wide-open debate sought by the First Amendment.
I hope that the foregoing is helpful to you in understanding what I believe to be the Commission's role in this most important area.
Commissioners Bartley, Robert E. Lee, H. Rex Lee, and Wells join in this letter; Commissioner Cox disagrees, and has submitted his separate views in the attached opinion; Commissioner Johnson was absent at the discussion of this letter, and will, therefore, submit a separate response.
DISSENTBY: KENNETH A. COX; NICHOLAS JOHNSON
DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX
I agree with almost everything set forth in this letter - except the result. Perhaps Miss Collins has not stated her objection as clearly as she should, but I think she is saying that her point of view on an important public matter has not been presented on the ABC network and that she believes the public should be exposed to that viewpoint.
I agree that a broadcast licensee is responsible for all material presented over his facilities, but believe that he must discharge that obligation responsibly.
I agree that a licensee must devote a reasonable amount of time to controversial issues of public importance and cannot exclude views with which he disagrees - but must point out that ABC has done precisely the latter.
I agree that a licensee is not a common carrier. However, I think that permits him to exclude individuals or programs which he thinks are not sufficiently in the public interest, but does not in itself justify deletion of words spoken by someone whom the licensee has invited to appear.
I agree that, except in cases covered by our personal attack rules, a licensee can exercise his judgment as to the appropriate spokesman on an issue - but in this case we have not been advised that ABC chose to put on other speakers in place of Miss Collins, and I think, again, that different considerations apply where, as here, the licensee found her a proper person to discuss issues over its facilities.
And I agree that licensees must edit the raw material from which they put together news and public affairs programs, and must be permitted to do so free of government control. This is the essence of our Hunger in America ruling. There is always more information and more film footage than can be crammed into the available air time, and the selection of the precise matter to be broadcast must be left to the uncoerced judgment of the journalists concerned with the process. But there is a difference between editing and suppression. Here there was no problem of selecting from among a mass of material to develop a program to fit a period too short to accommodate all that was available. Instead, this was a program which was taped live for broadcast later the same day. There was no need to cut and paste in order to reduce the available materials to the allotted time period. The program was recorded with Miss Collins' remarks included. They were then deleted, not to edit the show for length or to make time available for other more worth-while matter, but simply because ABC did not want Miss Collins' words to reach the American public.
I recognize that even in these circumstances there can be justification for deletion of words spoken during a broadcast. However, if a licensee's action in such a case is challenged, the only way to resolve the matter is to find out what was said and to ask the licensee the reason for deleting it. That would have required the investigation Miss Collins requested, but as far as I can determine the Commission has sought no information from anyone. Apparently all we have before us is Miss Collins' original letter, a letter from Congressman Richard L. Ottinger enclosing a copy of his letter to Leonard Goldenson, President of ABC, and a communication (evidently unsolicited) setting forth a statement which Dick Cavett made on his program five days after the broadcast here in dispute. The majority's letter recognizes that this is a significant matter, but they have made no effort to determine the basic facts.
The statement broadcast by Mr. Cavett indicated that ABC deleted Miss Collins' remarks because it believed they "could prejudice the possibility of the parties to receive a fair trial." He went on to say that, in general, "ABC's policy is based on the view that continued televising of possibly prejudicial comments on active litigation could threaten the American legal process itself." These are important concerns, but one wonders if ABC is not simply stating a "policy" which sounds appealing but which it does not follow. This seems to be Congressman Ottinger's view in his letter to Mr. Goldenson, where he said:
"The transparency of this rationale is so obvious that it raises serious questions regarding the level at which broadcast policy is made at ABC. Do you really believe that after the months of radio, television, newspaper and magazine coverage of the Chicago conspiracy trial, Miss Collins' remarks could prejudice the outcome? If you really believe that, you must have either a totally naive conception of the American judicial process or a grossly exaggerated view of television's ability to influence the outcome of a court proceeding."
Without knowing what Miss Collins said, and without more information as to ABC's "policy" and its application in other cases, I am inclined to agree with Congressman Ottinger. While I have no specific recollection of ABC's handling of these matters as distinguished from the media generally, it seems likely that the network has broadcast so much news and comment about the Chicago trial, the charges growing out of the Mylai affair, the trials of Sirhan Sirhan, James Earl Ray, Charles Manson, Rap Brown, and others that the sudden claim that Miss Collins' remarks would shake the judicial system seems a little specious. If, indeed, ABC has no uniform policy of refusing to broadcast comments about pending or prospective trials, then it would appear likely that Miss Collins' remarks were deleted because someone who reviewed the program didn't agree with her - and the majority specifically says this is not a valid ground for excluding matter from the air.
ABC staff personnel selected Miss Collins to appear on the program in question. They decided that she was not only to sing, but was also to participate in discussion with Mr. Cavett and other guests. And they agreed that she was to speak about the trial in Chicago. This is a common pattern - which may or may not be entirely sound - in most shows of this type on television, whether of network, syndicated or local origin. Having gone this far, I do not think ABC could claim that Miss Collins was seeking to force her way onto the network in violation of Section 3(h) of the Communications Act - and, indeed, so far as I know it has made no such claim. On these facts, I do not think it could argue that it was engaged in a process of journalistic editing - and, again, I don't believe that it has so contended. It is clear that ABC's news and public affairs program personnel, whose independence it is most important to protect, were not even involved in this incident. Nor is it urged that Miss Collins' remarks were obscene, indecent or profane - grounds on which language is often deleted from broadcast programs.
The majority's letter closes with the statement:
"We simply cannot look over the broadcaster's shoulder as he deals with the issues of the day, and then expect the robust, wide-open debate sought by the First Amendment."
Certainly the public got no "robust, wide-open debate" here. It should be remembered that the Supreme Court, in the Red Lion case, made it clear that licensee obstruction of such debate is quite as bad as governmental interference would be. I think this is what we have here - arbitrary action by a broadcast licensee resulting in less, not more, discussion, with no clearly established basis in valid policy. I think we should inquire further into this matter, with particular attention to Congressman Ottinger's question as to whether a double standard is being applied with respect to cases of this kind.
Folk singers often speak the purest and most direct thoughts of the people. Therein lies their essential contribution to a free society - and their power.
Andrew Fletcher, the Scott patriot, noted in 1704, "I believe that if a man were permitted the right to write all the ballads he need not care who should make the laws of a nation."
It is wholly understandable, therefore, that politicians, businessmen and television executives should express fear at the sight of guitars and those who strum them.
Peter Seeger, for example, was not permitted to sing "The Big Muddy" - an obvious critical reference to the Vietnam war - on one network program. Joan Baez's views of the selective service system were blipped off the air. Now Judy Collins' observations on the Chicago Conspiracy Trial have met a similar fate.
Judy Collins has complained. Needless to say, the FCC provides her no relief.
According to the evidence before us, and available in newspaper accounts, Judy Collins was called to testify as a defense witness in the "Chicago Conspiracy Trial" on January 22, 1970. The court refused on that occasion to permit her to sing the antiwar protest song "Where Have All the Flowers Gone?" * On February 4, 1970, Miss Collins was invited to appear as a guest, both to sing and to converse, on ABC's "Dick Cavett Show." She meet with the production staff at 3:00 p.m. According to her letter to the FCC of February 6, 1970, the staff "decided" that she "would discuss the Chicago Conspiracy Trial." The program was pre-taped at 6: p.m. that evening, during which time Miss Collins reportedly made comments "sharply critical" of the trial. (See N. Y. Times, Feb. 11, 1970, p. 95).
* In fairness to the FCC majority, it should perhaps be recorded that, by contrast, it permitted Mason Williams to appear in a formal hearing on July 23, 1969 to sing and strum "Cowboy Buckaroo" and conclude:
I'm telling you the truth
I am like the entertainment
I grew up on
Williams, The Mason Williams FCC Rapport (1970).
The program was broadcast later that night at 11:30 p.m. Without prior discussion with Miss Collins, ABC blipped out both audio and video portions of the program containing Miss Collins' reportedly "critical" remarks.
In her February 6, 1970, letter to the FCC, Miss Collins asked the Commission to investigate the incident and obtain a transcript of her comments and those portions which were deleted. Mr. William Ray, Chief, Complaints and Compliance Division, responded to her letter stating, in essence, that the Commission would take no action. In a letter to the Hon. Richard L. Ottinger, Chairman Burch stated for a majority of Commissioners' views similar to those of Mr. Ray. His primary position, as I read it, is that the licensee is not a "common carrier," and can therefore "exercise judgment as to appropriate spokesman, time, or manner of presentation of the issue."
I disagree with the majority's treatment of this highly complex and sensitive issue. I believe that it is long past time for us to begin a general policy review of the existing judicial precedent, past Commission decisions, and general communications and First Amendment policies affecting cases like this. Obviously, the Commission's letter does not purport to be such a review.
I do not believe that all corporate censorship issues - such as the Judy Collins' incident before us - can be squeezed into the fairness doctrine. The following, therefore, are points I would have considered:
(1) It may be that ABC does not have to put Miss Collins on the air upon her mere request - or even offer of payment of the "going rate." That issue is not before us. Miss Collins was picked by ABC as an "appropriate spokesman" (at least for her own views, if not the views of others); the "time" for her appearance was scheduled; and the "manner of presentation of the issue" was pre-determined (an open, talk-format discussion show); she was expressly asked to talk (on this subject) as well as to sing. Although ABC may be able to keep Miss Collins from making any appearance on the "Dick Cavett Show" at all, and may to some extent pre-determine the format if she does appear, I seriously question whether it should be able to silence her at will - on the basis of the views she expresses - once she does appear. Supreme Court decisions, for example, have held that the government can impose reasonable "time, place and manner" restrictions upon the use of public parks for First Amendment activities; but it cannot censor the content of the speech involved once these other details are arranged. Analogous principles might apply to Miss Collins.
(2) The majority seems to feel that mere recitation of the "common carrier" concept is sufficient to justify the censorship of Judy Collins. I believe a more reasonable argument can be made that the statutory reference to "common carrier" referred only to the regulation of rates charged by stations. In any event, in light of the legal principles contained in the subsequent Red Lion decision, I believe we should consider whether the majority's interpretation of Section 3(h) of the Communications Act is constitutional. If it is not, perhaps the FCC should consider narrowing its scope to permit reasonable "access" by groups or citizens to the facilities of mass communication.
In University Committee v. Gunn, 289 F. Supp. 469 (W. D. Tex. 1969), for example, the court asserted that "the individual must be afforded some appropriate 'public forum' for his peaceful protests." In In re Hoffman, 67 Cal. 2d 845, 434 P. 2d 353, 64 Cal. Rptr. 97 (1967), the court ruled that a privately owned railway station was open to the public generally, and that anti-war leaflets could not be barred so long as they were consistent with the normal operation of the station. In Wolin v. Port of New York Authority, 268 F. Supp. 855 (S. D. N. Y. 1967), aff'd, 392 F. 2d 83 (2d Cir.), cert. denied, 393 U.S. 940 (1968), the court held that the privately owned Port Authority violated the guarantee of equal protection in permitting some speech activities but not others - a discrimination based on the content of the speech. In Marsh v. Alabama, 326 U.S. 501 (1946), the Supreme Court held that a privately-owned "company town" could not ban certain speech activities. In Food Employees local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968), the Supreme Court said that picketers could not be excluded from a private shopping center, stating: "The fact that the property from which appellant was sought to be ejected for exercising her First Amendment rights was owned by a private corporation rather than the State was an insufficient basis to justify the infringement on appellant's right to free expression occasioned thereby." Finally, in In re Lane, 457 P. 2d 561, 79 Cal. Rptr. 729 (1969), the court said a pamphleteer could not be barred from a privately owned sidewalk, stating: "When a business establishment invites the public generally to patronize its store and in doing so to traverse a sidewalk opened for access by the public the fact of private ownership of the sidewalk does not operate to strip the members of the public of their rights to exercise First Amendment privileges on the sidewalk. . . ."
At the veryleast, these cases indicate that a private owner of forums traditionally used for the communication of views may not be able to censor, in any manner he wishes, the speech of private individuals who have a right to be there. I believe the Commission should begin to explore the implications of these cases in the area of broadcasting.
(3) Accordingly to statement made by Dick Cavett on February 9, 1970, ABC's policy for censoring Judy Collins was "based on its belief that these television remarks could prejudice the possibility of the parties to receive a fair trail. . . . Beyond this . . . ABC's policy is based on the view that continued televising of possibly prejudicial comments on active litigation could threaten the American legal process itself. . . . I have been advised that ABC's policy is supported by recent decisions of the United States Supreme Court. . . ." This is a rather surprising view. In the famous decision, Bridges v. California, 314 U.S. 252 (1941), Union leader Harry Bridges, the Times-Mirror Company, and the managing editor of the Los Angeles Times had been found guilty of contempt by the Los Angeles Superior Court for stating the following, strong opinion on a pending trial: "Judge A. A. Scott will make a serious mistake if he grants probation to Matthew Shannon and Kennan Holmes [accused of intimidating non-union workers]. This community needs the example of their assignment to the jute mill." On appeal, the Supreme Court (per Justice Black) reversed, stating that the appropriate test was whether "'the words used are used in such circumstances and of such a nature as to create a clear and present danger that they will bring about . . . substantive evils'". The Court continued: The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion." This view has been followed in many Supreme and lower court decisions and, to my knowledge, never reversed. See, e.g., Pennekamp v. Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 364 (1947); Baltimore Radio Show v. State, 67 A. 2d 507 (1949) (involving radio stations); State v. Morris, 75 N. M. 475, 406 P. 2d 349 (1965). In light of this body of precedent, I simply do not understand ABC's legal position. Like Commissioner Cox, I would have appreciated some substantiation from ABC. Unlike Commissioner Cox, however, I do not believe it is necessary at this time for this Commission to request a transcript of Miss Collins' remarks - at least until the law in this area is reviewed.
Corporate censorship by television networks is a problem in this country. The most appropriate response from the Congress, the courts and the Commission is not clear. I believe the FCC ought to get on with the job of working out the standards. This would have been a useful case in which to begin. I regret the Commission majority chose not to do so.