In Re Complaint by SAN FRANCISCO WOMEN FOR PEACE, THE GI ASSOCIATION, THE RESISTANCE Concerning San Francisco, Calif;
Radio and Television Stations Fairness Doctrine
FEDERAL COMMUNICATIONS COMMISSION
24 F.C.C.2d 156
RELEASE-NUMBER: FCC 70-595
JUNE 4, 1970
[*156] MR. DONALD A. JELINEK, 2437 Durant Avenue, Berkeley, Calif.
DEAR MR. JELINEK: The Commission is in receipt of a complaint filed on February 25, 1970, on behalf of San Francisco Women For Peace, The GI Association and The Resistance (complainants), against numerous radio and television stations in the San Francisco, California area. Briefly stated, complainants contend that the San Francisco stations have violated the fairness doctrine in that armed forces recruitment messages have been broadcast as public service announcements, but the stations have refused to broadcast "public service announcements opposing the viewpoints expressed in the military recruitment announcements" which complainants have offered to supply.
In support of this contention that the armed forces recruitment announcements raise a controversial issue of public importance, complainants assert that: There are many groups in the San Francisco area who do not believe it is beneficial to the individual or society at large for people to participate in the armed forces; armed forces recruitment cannot be considered without reference to the war in Vietnam since the primary purpose of the U.S. Armed Forces [**2] is to fight wars and a military recruit is very likely to be stationed in the Vietnam war zone at some time during his military career (U.S. v. Sisson, 294 F. Supp. 511 (D. Mass) 1968, at 513); and there are many groups in the San Francisco area who believe the best course of action for young men "is to seek one of the many possible deferments from military service provided for by Congress." Complainants assert that the Commission's application of the fairness doctrine to cigarette advertising (9 FCC 2d 921 (1967)) is analogous and requires application of the fairness doctrine to the recruitment announcements complained of and that the fact that the U.S. Government is the sponsor does not exclude the matter from application of the fairness doctrine. (Report on Editorializing, (13 FCC at 1249)). Complainants also argue that their point of view is entitled to exposure through spot announcements rather than news and discussion coverage because of the more effective motivating factors inherent in an "uninterrupted" [*157] "prepackaged message" which "allows the sponsor [in this case, complainants] to prepare the announcements in such a manner as to have a desired psychological effect" rather [**3] than the "straightforward manner aimed at persuading the listener's rational sense" which is the way views are presented on news and talk programs. Finally, complainants argue that the fairness doctrine applies to public service announcements because, as opposed to normal commercial announcements, the broadcaster is making an editorial judgment in choosing the particular spot announcement and must therefore be more cognizant of his fairness obligations to preserve his facilities as an "uninhibited market place of ideas" (Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 390 (1969)).
Complainants' presented their request for "substantially equivalent [free] time" to present spot announcements reflecting their views in opposition to the Armed Forces recruitment messages. Fourteen (14) San Francisco area stations formally refused complainants' request and the remainder did not reply. In view of our determination that the stations did not act unreasonably in refusing complainants' request, we need not detail all the reasons advanced by the stations. However, we note that eleven of the fourteen stations who responded to complainants' request stated that they have presented [**4] contrasting views regarding the Selective Service System and the Vietnam War in newscasts and discussions and other programs, and that they did not consider Armed Forces announcements urging voluntary enlistment a controversial issue of public importance.
The fairness doctrine requires that when a station presents one side of the controversial issue of public importance it is obligated to afford reasonable opportunity for the presentation of significant conflicting viewpoints on the issue. The crucial question raised is whether Armed Forces recruitment messages constitute the presentation of one side of a controversial issue of public importance. We are unable to conclude that the presentation of such recruitment messages, in and of itself, involves a controversial issue of public importance.
Under the fairness doctrine, it is the licensee's obligation in the first instance to make a determination regarding the controversial nature of an issue and whether an issue, if it is controversial, is one of public importance. Unless the licensee's judgment is shown to be unreasonable, the Commission will not upset the judgment of the licensee. In short, it is not a question of the [**5] Commission substituting its judgment for that of the licensee, but rather whether, in light of the showing before the Commission, the licensee's judgment can be said to be arbitrary.
In the present case, we do not believe that the broadcast of Armed Forces recruitment messages, any more than similar recruitment messages for policemen, firemen, teachers, census enumerators, peace corp. volunteers, etc., in and of itself, raises a controversial issue of public importance requiring presentation of conflicting viewpoints. We note that the power of the Government to raise an army has not been questioned; rather the thrust of the complaint is an objection to the use [*158] made of the army (war in Vietnam) and the manner in which manpower is conscripted (Selective Service draft).
In reaching this conclusion we also note that complainants themselves reason that recruitment messages are controversial because they are inextricably intertwined with the conduct of the war in Vietnam and the Selective Service draft. There is no indication that any of the stations against whom the complaint was filed have failed to treat the issues of Vietnam and the draft (both concededly controversial issues of [**6] public importance) in conformance with the fairness doctrine. Moreover, the only indication as to what complainants consider the "opposing viewpoint" to the Armed Forces recruitment announcements is one spot announcement entitled "Draft Counseling," which offers information pertaining to draft determents. The fact that Vietnam and the draft are controversial issues of public importance does not, in our view, automatically require that recruitment messages also be considered as such, and we are unable to conclude that it was unreasonable for the broadcast stations in the San Francisco area to decline to broadcast the "opposing" spot announcements.
In reaching the conclusion that no fairness doctrine violation has been demonstrated, we do not mean to imply that nothing connected with a public service announcement could bear upon a controversial issue of public importance. Such announcements, in particular instances, may present one side of a controversy. Here, we simply note that there is no indication that any such announcement (i.e., one presenting one side of a controversial issue of public importance) was broadcast by any station in the San Francisco area.
In view of the [**7] foregoing, it is concluded that no further action is warranted. Commissioner Johnson dissented and issued the attached statement (Letter to Mr. Jelinek).
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
When war begins, all thinking stops.
ZECHARIAH CHAFEE, Jr. Free Speech in the United States.
It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).
Today one branch of the Federal Government ignores the orderly complaints of its citizens and rules that another branch of that same Government, the U.S. Army, can propagandize without preserving for the young their First Amendment right to self-defense. The Army and Marine Corps will be permitted to harness all the seductive merchandising talents of Madison Avenue to persuade draft-age young [*159] men to enlist in the armed forces. In support of the Pentagon, the FCC has ruled that Americans have no right to talk [**8] back to their television sets -- at least on this issue. Quakers, and other groups opposed to military service in general and the Vietnam War in particular, are now left with nothing but the recourse of demonstrations and draft-card burning to attract the largess of the news media's television cameras. To put it bluntly, the majority has held that the young people of this nation must find their path to the Fairness Doctrine in the streets. I dissent.
No one, I think, can ignore the present mood of this country. We are engaged in a vast, officially undeclared land war in Southeast Asia -- a war which has killed over 49,000 American soldiers, and in which countless hundreds of thousands of Vietnamese, Laotian, and Cambodian soldiers and civilians have lost their lives. Reputations and careers in our country (including those of Presidents) have risen and fallen on the extent to which the public has believed that our Vietnam policies have been successful. Military budgets and multi-billion dollar weapons systems are being questioned as never before. There is a movement to isolation in America in international affairs. It should be obvious, therefore, that the military has an [**9] enormous vested interest in preserving public faith in its policies and programs -- indeed its very existence. And one cannot ignore the fact that the military can maintain its "favorable image" in perhaps no better way than through propaganda pumped over the radio and television stations of our country.
Senator William Fulbright has recently warned us of the tremendous machinery that the military has constructed to loose its propaganda upon an unsuspecting American public. According to Senator Fulbright, the Defense Department is spending millions of dollars to promote and justify its activities at public expense. By a conservative estimate, the Pentagon is now spending $40.5 million a year for "Public Relations" -- an increase of 1500% since 1959 ($2.8 million), when the Vietnam War first began to loom larger and larger in the public eye. n1 See Cong Rec., Dec. 1, 1969, p. S-15144; Dec. 2, 1969, p. S-15306; Dec. 4, 1969, p. S-15649; and Dec. 5, 1969, p. S-15804 (Daily Ed.)
n1 In a recent statement to the Senate Appropriations Committee, Senator J. William Fulbright reported that in 1959 the Congressional limit on Pentagon public relations spending was $2,755,000. (Over-all defense spending was then $43 billion.) By 1970, defense spending had doubled; but public relations spending had increased 15-fold! The total was $40,447,000 -- roughly double the entire annual appropriation for the FCC. Senator Fulbright reported defense officials maintained that public relations expenditures were $27,953,000 for fiscal 1969. Now it appears these figures may have been deliberately understated. Senator Fulbright observed, "Apparently the department was not completely candid with me since now, apparently in anticipation of the imposition of a legislative ceiling, they state that the public-relation bill for that year was actually $44,062,000." Washington Post, June 22, 1970, p. A-15, col. 1. For further material on military-oriented public relations spending, see text at n. 2, infra. [**10]
We must heed Senator Fulbright's warning:
There is something basically unwise and undemocratic about a system which taxes the public to finance a propaganda campaign aimed at persuading the same taxpayers that they must spend more tax dollars to subvert their independent judgment. I am reminded of W. C. Fields' admonition: 'Never give a sucker an even break.' Id. at p. S-15333, Dec. 2, 1969 (Daily Ed.)
[*160] I fear the Commission fails to understand what lies behind the "Public Service" announcements, supplied gratis by the Army, and the message they convey. Shortly after assuming office, Secretary of Defense Melvin Laird told the Defense Department that "[propaganda] has no place in the Department of Defense public information programs." Quoted by Sen. Fulbright, Cong. Rec., p. S-15145, Dec. 1, 1969 (Daily Ed.). Yet from all accounts the Pentagon's "public information" program is aimed, not at providing the public "with unvarnished facts, but at persuading it that the programs and weapons systems of the Army, Navy, or Air Force... should have the first claim on public funds and are the key to peace." Senator Fulbright, Cong. Rec., p. S-15333, Dec. 2, 1969 (Daily Ed.).
I believe [**11] that this Commission, as one branch of "The Government," has a special obligation to preserve both the appearance and the actuality of fairness and impartiality when it is called to weigh Fairness Doctrine complaints by a broad range of citizens groups against another branch of "The Government." Chief Justice Burger, then a Judge of the United States Court of Appeals, has condemned this Commission's "curious neutrality-in-favor-of-the-licensee." United Church of Christ v. FCC, No. 19, 409 (D.C. Cir. June 20, 1969). Yet real neutrality -- by the Commission and by broadcast licensees -- is indispensable where broad-based but under-financed groups of citizens attempt to debate the military-industrial complex in the public forums of radio and television.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 396 (1969), the Supreme Court warned:
There is no question here... of a discriminatory refusal [by the Commission] to require the licensee to broadcast certain views which have been denied access to the airwaves * * *. Such questions would raise more serious first amendment issues. [Emphasis added.]
I believe this Commission has required petitioners here to sustain a far greater [**12] burden of proof than it imposed on petitioners in its cigarette decision, Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d 921 (1967), and therefore stands guilty of a "discriminatory refusal to require" licensees to broadcast the views of citizens opposing the "Join the Army" campaign of the military.
On June 2, 1967, this Commission applied the Fairness Doctrine to cigarette advertising. Letter to WCBS-TV, FCC 67-641. In that ruling we stated:
The advertisements in question clearly promote the use of the particular cigarette as attractive and enjoyable. Indeed, they understandably have no other purpose. [Except, of course, the actual sale of cigarettes.] But we believe that a station which presents such advertisements has the duty of informing its audience of the other side of this controversial issue of public importance -- that however enjoyable, such smoking may be a hazard to the smoker's health.
See Cigarette Advertising, 9 F.C.C. 2d 921, 938 (1967). In reaffirming the ruling, we emphasized (referring to a June 29, 1967, Federal Trade [*161] Commission Report) that the "desirability" of smoking in cigarette advertisements "is portrayed in [**13] terms of the satisfactions engendered by smoking and by associating smoking with attractive people and enjoyable events and experiences, and that by so doing the impression is conveyed that smoking carries relatively little risk...." Id. at 938.
Petitioners have attached the text of 18 military service recruitment announcements to their petition. A sample of two adequately conveys the mood of these advertisements:
ANNOUNCER. IT'S A DAY YOU CAN'T PUT INTO WORDS. YOU TRY TO COMPARE IT WITH THE DAY YOU GRADUATED FROM HIGH SCHOOL, BUT THERE'S NO COMPARISON. BECAUSE SOMEHOW THE DAY YOU GRADUATED FROM HIGH SCHOOL, YOU WERE STILL JUST ANOTHER GUY, AND ON THIS DAY, YOU'RE SOMETHING ELSE. YOU LOOK TALLER THAN YOU DID BECAUSE YOU STAND TALLER. YOU LOOK PROUD BECAUSE YOU ARE PROUD. AND NO WONDER... YOU'VE JUST GONE THROUGH THE TOUGHEST EIGHT WEEKS A GUY EVER HAD. AND IF YOU DIDN'T HAVE WHAT IT TAKES, YOU WOULDN'T BE STANDING WITH THE REST OF THEM, YOU WOULDN'T BE WEARING THE SAME UNIFORM. ASK A MARINE. ASK A MARINE WHAT IT MEANS TO GRADUATE FROM BOOTH CAMP. HE'LL TELL YOU. IT'S A DAY TO REMEMBER FOR THE REST OF YOUR LIFE. BECAUSE THAT DAY THEY SEPARATE THE MEN FROM THE BOYS.
REFRAIN. [**14] ASK A MARINE.
* * *
ANNOUNCER. WE UNDERSTAND YOU'RE LOOKING FOR A MAN'S JOB. WELL, WE JUST MAY HAVE ONE. WHO ARE WE? WE'VE BEEN IN BUSINESS SINCE 1775. WE'RE LOCATED IN CLOSE TO 200 PLACES AROUND THE WORLD. WE'LL PAY WHILE WE ARE TRAINING YOU. GIVE YOU THIRTY DAYS OFF PER YEAR. GIVE YOU A CHANCE TO CONTINUE YOUR EDUCATION. AND WE'LL BUILD YOU A MAN. WE'LL BUILD YOU A MARINE. AND THAT MAN AND THAT MARINE WILL BE YOU.
REFRAIN. ASK A MARINE.
I think it is clear from just these two advertisements that the "desirability" of joining the Marines is portrayed in terms of the "satisfactions" to be derived from such an experience [you'll "stand taller," you'll be "proud," etc.] and by "associating" membership in the Marines "with attractive people" [real "men," men who "have what it takes," etc.] and "enjoyable events and experiences" [travel, on-job training, thirty days off per year, a chance to continue one's education, etc.].
As with the cigarette advertisements, there is something missing. What is noticeably absent from these advertisements is the view, widely held by many respected citizens, that "for hundreds of thousands of soldiers the pay is poor, the principal 'educational [**15] opportunity' is the opportunity to learn how to kill, and the 'travel' is to Vietnam, where the question of whether the military is making a 'really worthwhile contribution to the security of [the United States]' is a highly controversial one." Letter from Mr. Donald A. Jelinek to the FCC, Feb. 16, 1970, Appendix IV, p. 2. n2
n2 The internally quoted material is taken from other military recruitment advertisements reproduced in Appendix III, p. 1, to Mr. Jelinek's letter. Some of the material will be quoted elsewhere in this opinion.
In light of the close similarity -- and perhaps even identity -- of the instant complaint with our Cigarette Advertising ruling, let us examine the majority's justification for ruling against petitioner.
In the first place, the majority begins by stating what I believe to be an oversimplified interpretation of the Fairness Doctrine: "that when a station presents one side of a controversial issue of public importance it is obligated to afford reasonable opportunity for the presentation of significant conflicting viewpoints on the issue." [Emphasis added.] This interpretation assumes that the licensee's obligation to present all viewpoints [**16] on issues of controversy and public importance is invoked only when one side is first presented. Were this the case, the licensee could circumvent the Fairness Doctrine by simply refusing to present any views on such issues. I believe, on the contrary, that the Fairness Doctrine is invoked, not when one side of an important issue is presented by a licensee, but when such an issue arises. By my reading, this was the Supreme Court's view of the Fairness Doctrine in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 369 (1969), where it was described as the "requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage."
Next, the majority drags out the customary and familiar boilerplate recitation that the Commission will defer to the licensee's judgment on a Fairness Doctrine matter so long as it is "reasonable." ("In short, it is not a question of the Commission substituting its judgment for that of the licensee, but rather whether, in light of the showing before the Commission, the licensee's judgment can be said to be arbitrary.") Of course, everyone must know that this double talk is nonsense, and [**17] is used primarily when the Commission does not want to apply the Fairness Doctrine to a particular factual situation. Obviously at some point this Commission must decide that the licensee is wrong in his determination that the Fairness Doctrine is inapplicable, and I do not see how we can do this unless we substitute our judgment for the licensee's. Whatever may be the initial responsibility of the licensee, some agency mut arbitrate disputes regarding the applicability of the Fairness Doctrine -- and that task has been assigned to the Federal Communications Commission, with review by the courts. In any case, the majority treats this "throwaway" language precisely for what it is -- a useless appendage inserted routinely in Commission opinions -- and proceeds to make its own, independent determination anyway: "In the present case, we do not believe that the broadcast of Armed Forces recruitment messages... raises a controversial issue of public importance. * * *"
Finally, the Commission majority states why it believes that the recruitment messages do not raise controversial issues of public importance. Its creation is scarcely a monument to clarity. So far as I can determine, [**18] however, the majority seems to be saying that advertisements asking young men to join the Army -- like "similar recruitment messages" asking people to become "policemen, firemen, teachers, [*163] census enumerators, peace corps volunteers, etc." -- only raise the issue whether the particular institution in question (here the Army) has the legitimate power to recruit members. (The majority states: "We note that the power of the Government to raise an army has not been questioned. * * *" I cannot imagine why the majority merely "notes" this point if it is the crux of its holding.) The majority then goes on to reject the petitioners' arguments, stating that the recruitment advertisements do not refer to the "use made of the army (war in Vietnam)" and the "manner in which manpower is conscripted (Selective Service draft)."
This reasoning seems faulty on a number of counts.
First, it merely illustrates the principle that determined men, if they try hard enough, can define any problem out of existence. If the Commission had applied similar reasoning to cigarette advertisements three years go, we would presumably have ruled that cigarette advertisements raise only the issue of whether cigarette [**19] manufacturers have the right to recruit customers. Not surprisingly, the broadcasting industry made precisely this argument with respect to cigarette advertising, contending that "no controversial issue of public importance can be presented where a lawful business is advertising a lawful product." Not surprisingly, we gave it suitably short shrift. See Cigarette Advertising, 9 F.C.C.2d 921, 938-40 (1967). What is surprising, however, is that the majority now finds such specious reasoning so persuasive.
Second, it seems obvious to me from the text of the recruitment advertisements that they do far more than merely assert the right of the army to recruit members. Indeed, it is difficult to treat this latter notion seriously. What would the average listener or viewer think upon hearing a military recruitment advertisement such as, "SHOULD YOUR BOY JOIN THE U.S. MARINES? * * * IT REALLY DEPENDSON * * * HOW SOON HE WANTS TO BE AMAN"? Would he assume that this is the Army's effort to persuade him that it cn legitimately recruit members? On the contrary, the rather blatant message of these spots is that it is "desirable," for a multitude of reasons, for a young man to join the [**20] military. The principle question, therefore, is whether promotion of the "desirability" of military service raises a controversial issue of public importance.
Third, it seems clear that the majority's references to other types of recruitment -- "policemen, firemen, teachers, census enumerators, peace corp. volunteers, etc." -- re simply misplaced. For one thing, so far as I know policemen, firemen, teachers, etc., are not threatened with the prospect that if they do not "volunteer" for service, they will be drafted! Congressional appropriations for "standing armies," the quartering of troops, and the relative role of the military generally have been controversial issues since the very founding of our nation. They are no less so at this hour. This is in part because the military conscripts men against their will, forces them to kill and destroy, and subjects them to the omnipresent threat of death. These risks are simply not shared by census enumerators, whatever else may be the hazards of their job. For another thing, there is no question as to the power of [*164] municipalities and schools to hire policemen and teachers. Serious question has been raised, however, as to whether [**21] the President can legitimately conduct a war in Southeast Asia, invading new countries at will, without a declaration of war by the Congress, as required by Article I, Section 8, of the Constitution. If is one thing to hire men to teach school; it is quite another to force them to fight and die in a war that may be illegal.
The majority finally advances as its essential argument the proposition that there is no connection between military recruitment announcements and two other issues of admittedly high controversy -- the Vietnam War and the Selective Service system. This argument is faulty. This argument is for many reasons.
First, as discussed above, the majority has set up a "straw man" by adopting a highly artificial and narrow definition of the scope, function and impact of the military recruitment advertisements in question, and then knocking it down as "non-controversial."
Even if the recruitment advertisements made no claims that military service was "desirable," but merely contained the exhortation "Join the Army, Join the Army," I believe they would raise an issue of controversy and public importance. The reason is that one simply cannot separate the controversiality [**22] of a recruitment advertisement from the nature and function of the job in question. If -- to pick a deliberately strong example -- the Government were to recruit soldiers for a special commando troop whose function was widely known as encompassing the assassination of civilians in Vietnamese villages, and used advertisements which simply urged men to "Join the Commandos, Join the Commandos," only a person with the most tenuous grip on reality could reason that nothing more than "the power of the Government to raise an army" had been placed in question. Recruitment advertisements for policemen, firemen, teachers, census enumerators, and so forth, are not controversial because the work they do is not controversial. But I suspect recruitment solicitations for National Guardsmen in the Kent State University region of Ohio, or for the CIA in Berkeley, would be highly controversial. So it is for recruitment into the armed forces generally at this time.
Second, the military recruitment advertisements before us obviously do far more than urge young men to "Join the Army." They make grandiose and wide-ranging claims as to the "desirability" of military service, just as cigarette commercials [**23] taught the desirability of smoking. And once the desirability of military service is placed in issue, I simply do not see how one can avoid a discussion of what one will be doing there [continuing one's education, becoming "a man," joining "the leaders"], where one will be doing it [in "close to 200 places around the world" -- one of which is presumably Vietnam], and how one will be rewarded ["good pay" nd a share in the "fight for freedom" and the "protection of our nation and our ideals"].
Third, even apart from the present Vietnam conflict, the issue of military service has traditionally been embroiled in extreme controversy of great public importance. See United States v. O'Brien, 891 U.S. 367 [*165] (1968); Holmes v. United States 891 U.S. 936 (1968) (Douglas, J., dissenting, with a long historical sketch on the controversial nature of the Armed Forces). Indeed, the role of the military in our society in general, and its specialized methods for recruiting members in particular, have generated controversies of such long standing that they extend almost back to the Revolutionary War. See United States v. Nugent, 346 U.S. 1 (1953); Hamilton v. Regents of the Univ. of California, 293 [**24] U.S. 245 (1934); Selective Draft Law Cases, 245 U.S. 366 (1918); Tarble's Case, 80 U.S. [13 Wall.] 397 (1871); Prize Cases, 67 U.S. [2 Black] 635 (1862). The history of this controversy is quite distinct from the experience of other public groups, like firemen and teachers, relied upon by the majority. In Schenck v. United States, 249 U.S. 47 (1919), for example, the Supreme Court adopted the "clear and present danger" test to convict persons of circulating documents which complained that the Conscription Act violated the Thirteenth Amendment's prohibition against "slavery" and "involuntary servitude," and urged potential draftees to "assert your opposition to the draft." Even today one pressing and important "controversial" issue is the extent to which a young man who succumbs to military recruitment advertisements and joints the army loses those constitutional rights guaranteed to civilians by the Supreme Court in cases since Schenck. See Note, Dissenting Servicemen and the First Amendment, 58 Geo. L.J. 534 (1970).
Fourth, it cannot be denied that this country is in fact engaged in a serious war, and that the army is playing an integral part in it. A federal court, for example, [**25] has acknowledged that service in the Armed Forces, whether by recruitment or enlistment, carries with it "a strong probability of ultimate service in Vietnam." United States v. Sisson, 294 F. Supp. 511, 513 (D. Mass. 1968). Indeed, almost all our pressing national problems -- inflation, campus unrest, racial discrimination, the urban crisis, mass demonstrations and protest -- appear linked in some way to the Vietnam War. Highly respected legal scholars have argued, as well, that the President has violated the Constitution in conducting an "undeclared" war. F. Wormuth, The President Versus the Constituion (paper published by the Center for the Study of Democratic Institutions, Santa Barbara, Calif., 1968); Hughes, Civil Disobedience and the Political Question Doctrine, 43 N.Y.U.L. Rev. 1 (1968); The Vietnam War and International Law, Am. Soc. Int'l Law (R. Falk ed., 1968). How can recruitment solicitations be considered anything but controversial?
Finally, consider some simple statistics. In 1969, some 59,000 Americans (49,000 men and 10,000 women) died of lung cancer, and over 90% of these deaths are reputedly linked to cigarette smoking. Smoking and Lung Cancer, Public Health [**26] Service pamphlet (1970). This means that of the 70,000,000 Americans who consume tobacco in one form or another, approximately 53,100 -- or one out of 1,300 -- died of lung cancer in 1969. (If one accepts the higher figure of 300,000 cigarette related deaths per year, the ratio becomes one out of 233.) The enormity of this problem in part lead the FCC several years ago to apply the Fairness Doctrine to cigarette commercials. Cigarette Advertising, 9 F.C.C. 2d 921 (1967).
[*166] Yet what of the hazards of military service? During 1969, the same period in question, the United States had 3,127,000 servicemen in uniform around the world -- many of whom were thousands of miles from Vietnam. Of that total number, however, approximately 11,527 -- or one out of 275 -- lost their lives in Vietnam. Source: Office of Public Information, Southeast Asia Desk, U.S. Department of Defense (June 18, 1970).
Simply stated, it is at least as dangerous to enlist in the armed services s it is to use tobacco. This Commission has ruled that invitations to smoke cigarettes raise issues of sufficient controversy and public importance to invoke the Fairness Doctrine. Yet invitations to join the military [**27] do not. Why? Frankly, the majority's reasoning -- what there is of it -- escapes me.
Cigarette advertisements were brought under the Fairness Doctrine -- which, after all, requires only that the other side be told -- in part because they were inherently deceptive. The ads represented to their audience that smoking was "desirable," without warning that death or serious illness might follow. I believe that solicitations for military service are similarly deceptive, for they do not warn their audience that death or serious injury might follow, as a statistical consequence of enlistment, or that a young man of draft age may have alternatives to the "enlist-or-be-drafted" dilemma. Congress itself has, in the Selective Service Act, exempted from military service, for reasons of strong national policy, persons who fall in numerous categories. Persons, therefore, whom Congress did not intend to induct, may be induced into a military obligation which was unrequired, and perhaps even undesirable, as a direct consequence of partial truths contained in the advertisements before us. To the extent these advertisements suggest that young men can satisfy their patriotic obligations to their [**28] country only by military service, they are inherently deceptive. Only the application of the Fairness Doctrine can correct this deception by requiring the presentation of alternative views.
The majority claims that the military recruitment advertisements do not raise an issue of controversy and public importance. They contend that in any case there is "no indication that any of the stations against whom the complaint was filed have failed to treat the issues of Vietnam and the draft (both concededly controversial issues of public importance) in conformance with the fairness doctrine." In our Cigarette Advertising ruling, 9 F.C.C. 2d 921 (1967), we addressed this problem of sufficiency. Whereas we concluded that the broadcaster was not required to devote an "equal" amount of time to opposing views, we held that the time must at least be "significant." Id., 9 F.C.C. 2d at 949. In National Broadcasting Co. [WNBC-TV], 16 F.C.C. 2d 947, 15 P & F Radio Reg. 2d 1059 (1969), for example, the Commission (over my dissent) ruled that a ratio of one antismoking commercial to 8.1 cigarette commercials was "significant."
In the present case, however, so far as I know, as do not have [**29] any [*167] indication of the ratio involved -- military recruitment advertisements to anti-military coverage. The majority's assumption that all the licensees broadcasting such advertisements have fulfilled their Fairness Doctrine obligations, therefore, seems completely unsupported by any evidence. One can only wonder why the majority seems so eager to base such an important precedent-setting decision on so little.
In addition, there are a number of factors that should be weighed in determining whether a licensee has given "significant" coverage to various views. First, an important factor is the frequency and regularity of presentation. The Commission has explicitly recognized this factor in its decision, Cigarette Advertising, 9 F.C.C. 2d 921, 941 (1967):
We think that the frequency of the presentation of one side of the controversy is a factor appropriately to be considered in our administration of the Fairness Doctrine * * * For, while the Fairness Doctrine does not contemplate "equal time" if the presentation of one side of the issue is on a regular and continual basis, fairness and the right of the public adequately to be informed compels the conclusion that there must be some [**30] regularity in the presentation of the other side of the issue.
In affirming this ruling, the United States Court of Appeals in Banzhaf v. FCC, 405 F. 2d 1082, 1099 (D.C. Cir. 1968), was even more explicit:
In these circumstances, the Commission could reasonably determine that news broadcasts, private and governmental educational programs, the information provided by other media * * * inadequately inform the public of the extent to which its life and health are most probably in jeopardy. The mere fact that information is available, or even that it is actually heard or read, does not mean that it is effectively understood. A man who hears a hundred 'yeses' for each 'no,' when the actual odds lies heavily the other way, cannot be realistically deemed adequately informed. [Emphasis supplied.]
According to the Office of the Controller, U.S. Department of Defense (information supplied June 19, 1970), the American Forces Radio and Television Service (AFRTS) spent at least $229,000 in 1969 producing 1,000 radio and 300 television spot announcements, all supporting military information themselves. n2 Although it is unclear how many of these are devoted to military recruitment advertisements [**31] of the sort before us (an interesting question which the majority has failed to ask), it is perhaps insightful that the Defense Department itself budgets the cost of the spot announcements to "recruiting" -- an [*168] indication that perhaps the Pentagon has something more in mind than mere information to the public when it runs its spots from coast to coast.
n2 It is difficult to put a dollar value on the recruiting spot activities of the Pentagon. The talent of contributors like Jack Webb, Frank Blair, Jonathan Winters, and so forth, are given without charge. Their commercial value would, of course, be thousands of dollars in the aggregate. The air time is also "contributed" (subject to such coercion as may be involved from the combination of the Department of Defense and the Federal Communications Commission). The value of this time is also virtually impossible to compute accurately, but estimates running well in excess of $10 million annually would appear reasonable. The hidden costs of Defense Department personnel, physical facilities, materials, distribution costs, and so forth cannot be ascertained. But even the Pentagon itself is prepared to acknowledge directly attributable costs of at least $229,000 in 1969. The radio spots are prepared by three professionals and one clerical aide (salaried at $49,000 a year), who regularly send them to 350 radio stations across the country for systematic rebroadcast. They produced 1000 radio spots in 1969 alone. The acknowledged cost: $121,000. AFRTS also spent a total of $108,000 in 1969 producing 260 television recruitment spots and 40 five-minute fillers (combining both entertainment and a recruitment pitch) for regular use on 90 television stations across the country. The AFRTS television effort employs six full-time professionals and one clerical aide, also at a cost of $49,000. Thus, AFRTS publicly acknowledges spending a total of $229,000 for radio and television recruitment spots in 1969 alone. [**32]
How effective are these military advertisements? No one can tell. However, the Chief of Naval Personnel, Vice Admiral Charles K. Duncan, recently reported to Congress that the Navy alone receives from $8 to $10 million in free time over the airwaves for military programming every year -- a "significant" amount by anyone's public relations standards. Hearings on Fiscal Year 1971 Department of Defense Budget, House Subcommittee on Defense Appropriations, 91st Cong., 2d Sess., Pt. II, at p. 86 (Mar. 3, 1970). Without more direct evidence before us, and in light of this military propaganda barrage, I would question whether the San Francisco stations have truly fulfilled their Fairness Doctrine obligations.
Second, even if licensees have satisfied the Fairness Doctrine under traditional analyses, I think we must recognize the unusually powerful impact of spot advertising as compared to normal news coverage. Prepared spot announcements should be placed in a class by themselves -- a proposition acknowledged by FCC Chairman Dean Burch with respect to political advertising. Voters' Times, Twentieth Century Fund Commission on Campaign Costs in the Electronic Era, p. 15 (New York 1969); [**33] Statement of Chairman Dean Burch, Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce, June 2, 1970. The spot announcements in question invoke the familiar Madison Avenue techniques:
The enticements of glamour and excitement, the promise of a rewarding future, the allure of travel to faraway places, the invocation of an ethic of masculinity, and the reassuring appearance of well-known celebrities -- Jack Webb, Coach Richie Guerin of the Atlanta Hawks, Jonathan Winters, former U.S. Senator Paul Douglas, and "Marine Reservist Ed McMahon" -- to intone the blandishments prepared by the army's recruitment officers and public relations specialists. Petitioners seek only to present an alternative to the siren call of the military establishment. This the majority has refused them.
One final point requires mention. The broadcasting industry bitterly fought the anti-smoking announcements, fearing that their insertion into daily programming might eliminate time that otherwise could be used for paying commercials. The military recruitment advertisements before us, however, provide the licensee with no income. They are donated, free of charge, [**34] by broadcasters as an alleged "public service announcement." If a station broadcast two such advertisements a day, it could easily reduce this number to one a day, and fill [*169] the vacated spot with the proffered anti-military recruitment advertisements. In so doing, the license would be out-of-pocket nothing. It seems clear to me, therefore, that the intensity of resistance to petitioner's message may be caused more by "political" than "economic" considerations. Let's face facts. One ruffles no feathers when one supports the military establishment; but opposition to that establishment always seems controversial. I find it revealing, to say the least, that broadcasters find themselves so eager to donate free time to the army to recruit soldiers to fight its wars, yet deny a portion of that free time to opponents of that process. The "robust, wide-open debate" so often publicly cherished by this Commission seems sadly lacking in this decision. That the Commission is a party to both decisions -- the implied encouragement to broadcasters to carry the government's "public service" announcements, and support for the exclusion of contrary views -- makes today's decision especially vicious. [**35]
Even if there were no basis in law whatsoever for petitioners' claims (which most assuredly there is), a confident and compassionate government would grant their "humble petitions" (to quote from the Declaration of Independence). Is this Administration really so frightened of the rights of free speech and press and "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" (to quote from the Bill of Rights) that its critics must be met with intimidation (the Vice President versus the networks), gunfire (at Kent), and slammed doors (at the FCC)? What harm can be done by granting American citizens access to the airwaves they own to present their modest messages of reply to their government, when it would cost the broadcast industry nothing? If that truly constitutes a threat to national security, then the "Decline and Fall of the American Empire" is closer at hand than any of the modern-day Gibbons have feared to predict.
But the fact of the matter is that -- whatever side God may be on -- the law is with the petitioners. The FCC and the broadcasting industry together, using U.S. Army commercials, have the "power" to abridge [**36] Americans' freedom of speech (subject to review by the courts). But I do not believe they have the legal right to do so. At any rate, as is by now obvious, they do not have the wisdom to refrain from doing so.