In Re Application of ROBERT H. SCOTT, SARATOGA, CALIF. For Review of Fairness Doctrine Ruling Concerning Station KTVU, Oakland, Calif.
FEDERAL COMMUNICATIONS COMMISSION
25 F.C.C.2d 239
RELEASE-NUMBER: FCC 70-883
AUGUST 24, 1970
[*239] Mr. ROBERT H. SCOTT Post Office Box 761, Saratoga, Calif.
DEAR MR. SCOTT: This is with reference to your letter of April 17, 1970, concerning the ruling of October 1, 1969, issued pursuant to authority delegated to the Chief of the Broadcast Bureau. We are treating your letters of November 12, 1969, and April 17, 1970, as an application for review, under Section 1.115 of the Commission's Rules, of the October 1 ruling.
We have considered the arguments advanced in support of your contention that the fairness doctrine applies to a prayer recital and a portion of the Pledge of Allegiance broadcast by Station KTVU, Oakland, California, during the program titled "Romper Room," but for the reasons set forth herein we are not persuaded that the staff's ruling was in error.
In seeking to apply the fairness doctrine here, you assert that:
To say, "God is great" and "God is good," along with the phrase "under God," is clearly tantamount to saying "There is a God, and therefore atheism is mistaken." * * * Indeed... any religious utterance, ceremony, or ritual, is necessarily antiatheistic...
In this connection, we invite your attention to our ruling in Mrs. Madalyn Murray 40 FCC 647 (1963) that licensees acted reasonably and in good faith in determining that mere broadcast of church services, devotionals and prayers is not the presentation of controversial issues of public importance within the meaning of the fairness doctrine. Also applicable here is our ruling in the Martin-Trigona case, n1 wherein we stated that:
n1 Letter to Anthony R. MartinTrigona, 19 FCC 2d 620 (1969), reconsideration denied, FCC 70-390, FCC 2d. .
a mere passing reference to an issue in an entertainment program [does] not constitute such advocacy of a viewpoint with respect to that issue so as to impose an affirmative obligation on the station to present contrasting viewpoints.
Initial responsibility rests with the licensee for determining whether one side of a controversial issue of public importance has been presented, and the Commission will review the licensee's decision only to determine whether it appears to have been a reasonable one, made in good faith.
[*240] We are unable to find that the decision of the licensee here was unreasonable or made in bad faith. Accordingly, your application for review is DENIED.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
According to the complaint before us, KTVU broadcasts a children's program, "Romper Room," five days a week before noon. The children regularly recite the following grace:
God is great. God is good.
Let us thank him for our food.
This prayer clearly presents -- presumably to pre-school or primary school children, not adults -- the view both that a God exists, and that he is "good." The majority rules that presentation of this prayer, five times a week, to children at an impressionable age, does not involve the fairness doctrine, and does not require access by opposing views. I dissent to this ruling on two grounds.
First, the position that a God exists and that he is "good" has been a view of controversy and public importance since the Founding Fathers adopted the First Amendment, prohibiting the Government from making laws "respecting an establishment of religion, or prohibiting the free exercise thereof." Religious prayers in public schools, delivered to "captive" young audiences of children, have merely illustrated recent aspects of the controversy. See, e.g., School District v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). Given this history, I do not see how we can defer, without any evidence, to the licensee's own judgment that the prayers do not touch issues of controversy and public importance in the community in question.
Second, by barring the expression of opposing views, I fear we are "establishing" the religious viewpoints contained in the prayer. If the Government permitted advocates for certain religious viewpoints to speak in public parks, for example, but barred speech by non-believers in those same parks, that action would clearly violate the Establishment Clause of the First Amendment. Yet that is precisely what the Commission does in the public forum of broadcast communication. The Supreme Court has ruled that "neither a State nor the Federal Government... can constitutionally... impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in God as against those religions founded on different beliefs." Torcaso v. Watkins, 367 U.S. 488, 495 (1961). The Government must remain "neutral" toward religions and non-religions -- protecting all, but preferring none and disparaging none. School District v. Schempp, supra. The Commission's action, however, is not "neutral" -- it permits expression of one religious viewpoint, yet bars access by other views. Such seemingly innocuous prayers as the one before this have been found by the courts to fall within [*241] the Establishment Clause prohibition. E.g., Engel v. Vitale, supra.
It may very well be that, had we inquired, the station could have demonstrated it has fully complied with the fairness doctrine on these issues. There is certainly no general lack of radio and television programming and commercials that propagandize for values and life styles wholly at variance with basic tenets of all the world's great religions. However, there is simply no evidence before us one way or the other on these issues. I regret our refusal to make the necessary inquiries in this case.