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In Re Complaint by MARK LANE Concerning Fairness Doctrine

Re Station KTLA-TV, Los Angeles, Calif.

 

FEDERAL COMMUNICATIONS COMMISSION

 

36 F.C.C.2d 551

 

RELEASE-NUMBER: FCC 72-659

 

JULY 19, 1972

 

 


OPINION:

 [*551]  TRACY A. WESTEN, ESQ., Stern Community Law Firm, 2005 L Street NW., Washington, D.C. 20036

DEAR MR. WESTEN: This refers to a complaint and request for declaratory ruling n1 filed by you on behalf of Mark Lane (1) alleging that Station KTLA-TV, Los Angeles, California, deleted certain comments of Mr. Lane, thus engaging in censorship in violation of the First Amendment and the Communications Act of 1934; (2) requesting the Commission to notify licensees that they may not "blip out" or otherwise censor the comments of guests on talk programs when such comments fall short of "illegal" speech and the remainder of the program is broadcast without editing; and (3) requesting the Commission to require KTLA-TV to provide Mr. Lane with time to convey the content of his deleted remarks. 

 

n1 Section 1.2 of the Commission's Rules state that "The Commission may, in accordance with Section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty."

I.  COMPLAINT

The complaint alleges the following as giving rise to this complaint: Jane Fonda and Mark Lane were invited to appear on "The Virginia Graham Show" to discuss the Vietnam war and the Movement for a Democratic Military.  In an apparent attempt to balance these views, representatives of the armed forces, the John Birch Society, and Students for a Democratic Society were invited to ask questions from the audience.  "During the shows' taping, a Mr. John Cole rose from the audience, described himself as an 'agent' for a governmental intelligence agency... and proceeded to attack the 'Movement for a Democratic Military' in derogatory and critical terms...." Mr. Lane then came on stage and stated that he had written Conversations with Americans, a book on "war crimes," and that he had recently interviewed Mr. Cole.  Mr. Lane stated that during his interview with Mr. Cole, Mr. Cole indicated that at the "Interrogation, Prisoner of War School" at Fort Meade, Maryland and Fort Holabird, Maryland, he had been trained to use torture to extract information from prisoners  [*552]  and that he had admitted the use of those techniques to torture and kill Vietnamese in order to obtain information.  Mr Cole did not deny any of Mr. Lane's statements, but rather said the story had something to do with his "cover." Mr. Lane replied that he had obtained signed affidavits and releases from Mr. Cole as well as tape recordings and films of the interview which he would make available to anyone desiring confirmation.  Mr. Lane repeated this offer to the producers of "The Virginia Graham Show" after the taping of the show.

Mr. Steve Jaffe, press agent for Miss Fonda, attended a prescreening of the program and, at that time, the show was "completely intact -- without sound failures or deletions of dialogue of any kind...." When the program was broadcast by KTLA-TV (on June 23, 1970), it proceeded normally until Mr. Lane was introduced, at which time the audio portion of the program went silent.  An offscreen voice stated, "We are having difficulty with the audio portion of our program.  Please bear with us." When Mr. Lane's "silent" statement was finished a commercial was presented and the sound returned.  The next day Mr. Jaffe and Mr. Lane made telephone calls which revealed that the deletion was not due to technical difficulties but was the result of a "programming decision" by the KTLA-TV management.  The producer of "The Virginia Graham Show" stated he did not delete the material and a KTLA-TV employee said the deletion was made by the KTLA-TV Program Director.

The complainant suggests that the incident related above may be only one example of a general policy by KTLA-TV to delete comments which it does not like.  The complaint cites two other alleged instances.  In one, Mr. Jaffe states that Mr. Lane was subsequently invited to appear on the "Robert Dornan Show," but the producer of the show said he would first check with KTLA-TV's Program Director because a "controversial guest" might result in "static" from the station.  The complaint states Mr. Lane was not allowed to appear because the KTLA-TV Program Director feared Mr. Lane "might say something they would have to cut out -- as they did on 'The Virginia Graham Show.'" The complainant also states that the station's complaint file contained a letter from a listener who complained that he was watching a discussion about marijuana on the "Steve Allen Show"; that when one guest began to express views "counter to some of the 'safer,' more conventional views already expressed" he was "cut off by a commercial, following which the screen went black and the station put up a 'please stand by -- technical difficulties' sign"; and that when the program was resumed the show was ending.

II.  LICENSEE'S RESPONSE

In response to the complaint, the licensee states that it does not produce, have ownership interest in, or determine the content of "The Virginia Graham Show." Regarding the deletion of Mr. Lane's remarks, the licensee states that the Director of Programming was notified by RKO General, the owner of the program, that Mr. Cole had threatened a libel suit if certain of Mr. Lane's statements were broadcast.  A text of Mr. Lane's statements was provided to the station's  [*553]  attorney who stated that he believed that the remarks were defamatory per se and advised the station that it should either delete the audio portion of the statement or not carry the program.  The attorney stated that because the station had "been put on notice by Mr. Cole, KTLA could not evoke the retraction statute and the station would be exposing itself to substantial punitive damages." n2 The licensee states the issue is not freedom of speech but rather "whether a station has the right, after consulting with competent counsel, to eliminate matter which is defamatory per se where a law suit has been threatened...."

 

n2 The licensee deleted the italic portion of the following statement by Mr. Lane:

"MARK LANE -- I would like to comment on the last gentleman who asked the question because I conducted many hours of interviews with him -- yeh, with Mr. Cole.  I'm sorry he didn't tell everyone the same things that he told me in the tape recording and signed for release and that is that he was a prisoner of war interrogator in Viet Nam for the American Army -- that he participated in torturing to death up to 200 people while he was in Viet Nam.  And I'm sorry that he didn't tell everyone about his activities.  Because I think we could have learned a lot about the American presence there and he also could have told us how he was trained to use electrical methods...."

The licensee states that since the broadcast occurred almost a year prior to the Commission's inquiry, n3 neither the staff announcer nor the duty director can recall the circumstances surrounding the announcement made during the twenty-five second deletion of the audio portion of the program.  The licensee states that although the Program Department did not order such an announcement to be made, the apparent explanation would be that the staff announcer was unaware of the deletion and, since technical difficulty is the usual reason for loss of the audio portion of program, the announcer assumed that to be the case in this situation and made the announcement to that effect. 

 

n3 The program was aired in June 1970.  The complaint was not filed until May 1971.

The licensee has also submitted statements by members of its staff and its attorney regarding the other alleged incidents cited in the complaint.  The material indicates that Mr. Lane did appear on the "Robert K. Dornan Show" on December 13 and December 20, 1970, and that no cuts were made during the remarks about marijuana on the "Steve Allen" program but rather technical difficulties caused the screen to go blank.

The licensee has also submitted a letter which indicates that prior to the taping of "The Virginia Graham Show," Mr. Cole wrote to Mr. Lane revoking the permission which he had granted to Mr. Lane to use the interview and stating that all statements made therein were false.

III.  COMPLAINANT'S REPLY

In reply to the licensee's response the complainant asserts that the licensee did not dispute the complainant's position on improper audio censorship; that under California law Mark Lane did not slander Mr. Cole and therefore the licensee could not be held liable for the broadcast of such nonslanderous statements n4; that Mr. Lane's First Amendment right to speak over the air waves controlled by KTLA-TV should receive the same degree of protection that the New York Times Co. v. Sullivan case, 376 U.S. 254 (1964), provides to KTLA-TV against  [*554]  civil liabilities; that KTLA-TV has not shown that its "censorship" was reasonable; and that KTLA-TV's "censorship" was apparently motivated by a reluctance to afford Mr. Cole rebuttal time under the personal attack doctrine, or to resist a frivolous defamation suit in court. 

 

n4 Mr. Westen has submitted numerous references to the California Civil Code and to applicable court cases and this detailed information as well as all other pleadings in this case are on file in the Commission's Washington, D.C. office and are available for public inspection.

The complainant contends that there are several reasons why a licensee may not delete remarks -- even defamatory -- of a guest on a talk-discussion show and cannot be held liable for their broadcast; for example, if the person attacked is present and able to rebut or deny the charges, and, in any event, he may request time to respond under the Commission's personal attack rules.  The complainant asserts that the Supreme Court "has acknowledged that the right to respond, whenever a feasible alternative, takes precedence over the right to recover damages against the public medium chosen." He cites the following language from Rosenbloom v. Metromdia, 403 U.S. 29, 47 (1971), n. 15:

 

"...  Constitutional adjudication must take into account the individual's interest in access to the press as well as the individual's interest in preserving his reputation, even though libel actions by their nature encourage a narrow view of the individual's interest since they focus only on situations where the individual has been harmed by undesirable press attention.  A constitutional rule that deters the press from covering the ideas or activities of the private individual thus conceives the individual's interest too narrowly."

IV.  DISCUSSION

This complaint questions the right of the licensee to delete a portion of Mr. Lane's comments and raises issues as to the Commission's proper role under such circumstances.

In a recent case that raised issues similar to those in this complaint the Commission discussed the scheme of the Communications Act of 1934, as follows:

"Under Section 3(h), the Congress explicitly defines a broadcast licensee as not a common carrier.  He can and must make reasonable judgments as to the programming presented over his facilities.  Indeed, that is his affirmative responsibility under the Act -- and in a real sense it is the essence of our broadcasting system, which rests its confidence on the independent decisions of many entrepreneurs and not on an agency of the Federal Government." Letter to Honorable William H. Harsha, 31 FCC 2d 847 (1971).

Were a licensee not allowed to make reasonable programming decisions and "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." Letter to Honorable Richard L. Ottinger printed as an attachment to the letter to Honorable William H. Harsha, supra.

 [*555]  However, a licensee's programming decisions must be based on his obligation to serve the needs and interests of his community, and we have stated we would be concerned if a licensee rejected "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." Ottinger, supra. (See also letter to Albert H. Kramer (Back Alley Theater) 25 FCC 2d 705 (1970). In the Back Alley Theater case at page 707 we stated:

"... a serious public interest question would be presented if in its over-all programming a licensee ignored the needs of a substantial segment of his community or, for example, arbitrarily refused to present members of an ethnic group, or their views.  Refusal to present members of such a group, either as such or in integrated situations with members of other groups, would constitute discrimination in programming.  It is not enough, however, simply to state that a speaker has been censored because a licensee has edited or rejected a particular piece of program matter.  Such exercise of the licensee's judgment in programming occurs thousands of times a year, as to which claims could be made that the licensee was serving some improper purpose or policy.  Absent substantial extrinsic evidence of motives inconsistent with the public interest, the Commission should not and will not intervene in this continuing program practice."

Regarding your First Amendment claim, the Constitution does not guarantee any person the use of any particular platform for the expression of his views and we believe that the licensee in this case was neither obligated to broadcast the syndicated program on which Mr. Lane was a guest, nor to present his appearance without editing it.  The Commission expects a licensee to maintain control over, and assume responsibility for, all material broadcast.  In the present case, the licensee states and its counsel confirms that deletion of Mr. Lane's remarks was based upon counsel's advice that the remarks were defamatory per se and their broadcast would expose the licensee to substantial punitive damages.  Thus, the licensee's decision to delete the remarks does not appear to have been arbitrary, capricious or based upon a policy of excluding views with which it disagreed.  See letters to Harsha and Kramer, supra. Since the licensee acted because of advice of counsel, we do not intend to become involved in arguments as to whether in fact the licensee would have been subject to recovery of damages had it broadcast the material.

With regard to the announcement made during the silent period, serious questions would be raised concerning a licensee's qualifications if it deleted material and deliberately misrepresented to the public that the interruption was caused by technical difficulties.  However, we have no evidence here that the licensee either authorized or condoned such announcements, and in view of the passage of time since the 1970 broadcast, we believe that additional inquiry into this aspect of the complaint would not be likely to provide any further substantial evidence.

 [*556]  Based on the foregoing, we cannot find that the licensee acted unreasonably or in violation of the First Amendment or the Communications Act.  Therefore, no further Commission action appears warranted and the relief you request IS DENIED.

Commissioner Johnson dissenting and issuing a statement; Commissioner Reid absent; Commissioner Hooks not participating.

 

BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.


DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

On June 4, 1970, Mark Lane, attorney, author, and petitioner in this case, appeared with actress Jane Fonda on the "Virginia Graham Show" to discuss the Vietnam War and the Movement for a Democratic Military.  The show was aired in Los Angeles by KTLA-TV.  Representatives from the armed forces, the John Birch Society, and the Students for a Democratic Society were invited by the show's producers to ask questions from the audience.

During the show's taping, and prior to Mr. Lane's introduction, Mr. John Cole rose from the audience, described himself as an "agent" for an unidentified governmental intelligence organization, and sharply criticized the members and objectives of the Movement for a Democratic Military.  After being introduced, Mr. Lane advised the audience that he had previously interviewed Mr. Cole while researching a book on "war crimes" entitled Conversations with Americans.

During that interview, said Mr. Lane, Cole admitted that he had been trained by the government to use torture to extract information from prisoners. According to Lane, Cole also admitted to having put his learning to use in Vietnam.

Unlike the studio audience, none but an accomplished lip-reader in the greater television audience was able to comprehend Mr. Lane's report when the show was aired some two weeks later.  The station deleted Lane's words, leaving the visual portion of the episode intact while an off-stage voice explained:

"We are having technical difficulty with the audio portion of our program.  Please bear with us."

The majority has, indeed, borne with the station.  Yet, the majority is fully aware that KTLA's audio equipment was functioning without fault, that the station deceived the viewing public, and that the station's present justification for censoring Mr. Lane is questionable at best.  I dissent.

The majority notes that a licensee's programming decision may not contravene the public interest.  I agree.  Yet, the majority then suggests that so long as a licensee does not embark upon a "policy" of discriminatory programming, a policy which the complainant must establish by "substantial extrinsic evidence," the public interest is not violated.

The majority thus affords licensees broad leeway to engage in censorship.  Presumably, my fellow Commissioners would have no problems with a licensee who censors only occasional speakers with whose views the licensee does not agree.  For sporadic censorship might not constitute the sort of "policy" to which the majority refers.

With this I cannot agree.

 [*557]  Not only does such an approach ignore the First Amendment and afford licensees the power to impose their moral and social opinions upon the viewing public, but this approach, insofar as I am aware, was rejected in an earlier decision by this Commission.  See Letter to Albert H. Kramer, 25 F.C.C. 2d 705 (1970), where the Commission appeared to concede that even one incident of program discrimination would abridge the public interest.

Now the Commission appears to back away from its earlier, more rational approach.  Indeed, the Commission demands that a petitioner prove, by "substantial extrinsic evidence," the existence of the licensee's policy of program discrimination.  As I have tried to point out on an earlier occasion, see my dissent in the Kramer case, supra, at 713, the majority's reliance on the Hunger in America case, 20 F.C.C. 2d 143 (1969), for its "substantial extrinsic evidence" rule is misplaced.  Hunger in America involved the Commission's response to the problem of alleged news-staging, a problem which is very different from broadcast censorship of invited guests.

In any event, the petitioner in this case has, in my judgment, offered substantial extrinsic evidence of KTLA's "policy" of program discrimination.  The petitioner has presented an affidavit asserting that KTLA refused to allow Mr. Lane to appear on the "Robert Dornan Show" for fear that he, Mr. Lane, might be too controversial.  Petitioner has also submitted a letter from KTLA's files complaining about the station's apparent censorship of a young attorney who attempted to espouse "unconventional" views on the subject of marijuana.

Curiously, the majority finds that Mr. Lane, did, in fact, appear on the Dornan show and that the deletion of the marijuana discussion was the result of a technical failure.  But, there has been no hearing on these questions, and at the very least, the facts must remain in dispute.  One wonders how the majority and the staff managed, in so casual a fashion, to resolve these disputed issues in the licensee's favor.

Though I believe that the petitioner has met the majority's purported test by providing substantial evidence of KTLA's continuing pattern of program discrimination, I remain troubled by that "test." One instance of program discrimination should merit our disapprobation, for such censorship cannot possibly serve the public interest.  The licensee's censorship of Mr. Lane during the "Virginia Graham Show" constitutes such program discrimination irrespective of the excuse now put before us by KTLA.

The majority admits, as it must in view of the licensee's own concession, that there were no audio difficulties during the Graham show.  The station now argues that the explanation conveyed to the public was false and that the real reason for deleting Mr. Lane's remarks was the assertion by the station's attorney that Mr. Lane's comments constituted defamation per se.

The majority accepts this explanation and also sees no problem with the licensee's misrepresentation to the public.  I have substantial difficulty with both conclusions.

First, it is inconceivable to me that the station could have believed, in good faith, that Lane's remarks constituted defamation per se.  Lane never accused Cole of committing atrocities.  Rather, Lane merely reported what Cole had told him during an interview.  The only question,  [*558]  then, insofar as defamation was concerned, was whether Cole actually said what Lane was attempting to repeat.  n1

 

n1 Under the California statutory and common law, truth is a defense to a charge of defamation.  See, e.g., Cal. Civ. Code   46; Emde v. San Joaquin County Central Labor Council, 23 Cal. 2d 146, 143 P. 2d 20 (1943); Jeffers v. Screen Extras Guild, Inc., 162 Cal. App. 2d 717, 328 P. 2d 1030 (1958).

Cole never denied making the statements reported by Lane.  Indeed, Cole admitted in his affidavit that he had made similar statements to People's World magazine which published his account in December, 1969.

Further, the licensee never accepted Mr. Lane's offer to exhibit films of his interview with Cole -- films which Lane contends would have established the truth of his report concerning Cole's statements.  The station's refusal to view these films illustrates full well the station's unwillingness to determine the facts and, hence, to avoid any possible legal problems raised by the station's attorney.  n2

 

n2 It is unlikely that KTLA could have been held liable for defamation unless it broadcast Lane's statements in "knowing or reckless" disregard for the truth.  New York Times Co. v. Sullivan, 376 U.S. 254 (1965); Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Had KTLA viewed the films which Mr. Lane claimed would verify the truth of his remarks, KTLA could not have acted in reckless disregard for the truth.  At the very least, then, the licensee should have a duty to investigate whenever it censors a guest's comments on the ground that it believes those comments may be defamatory.

Further, the Rosenbloom case strongly indicates that even if a broadcast station permits a party to make a false statement over the air, the station will not be subject to damages if it affords the injured party an opportunity to respond.  Rosenbloom, supra, at 17-18 n. 15.  In the future, therefore, the Commission should give little credence to a station's claims of possible defamation.

There is, then, no evidence of KTLA's good faith.  Yet, the majority accepts the licensee's excuse without reservation.

Second, the majority blithely accepts the station's assertion that the fraudulent explanation given to the public for the deletion of Mr. Lane's words was unintentional.  The majority apparently adopts a presumption that a licensee who misrepresents itself to the public does not do so intentionally.  For, the majority asserts, the complainant has not proved otherwise.  I would have thought that the licensee's intent would be presumed, with the burden of proving the contrary on the station.

A licensee has an affirmative duty to deal candidly with the viewing public.  If it is going to persist in censoring views with which it disagrees, the station must at least advise the public of its true reasons.  This was obviously not done here.  The licensee contends that the program director did not order the fraudulent announcement, that he had not ordered any explanation for the deletion.

This is sufficient for the majority.  In the future, if the majority is consistent, all a program director bent on censorship need do is deny responsibility for the false representations given by his station to the public.  At the very least, I should think that the station's program director must have a duty to be aware of his station's censorship and must, therefore, have an affirmative duty to see to it that the public is properly informed.

All of the foregoing is merely to illustrate my objections to the majority's rationale and to its disregard for the public interest.

Perhaps more fundamental is my disagreement with the majority's underlying assumptions in this highly complex and sensitive area.  As I have argued in the past, see my dissent in Letter to Ottinger, 18 P & F Radio Reg. 2d 1031 (1970), I believe it is long past time for us  [*559]  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.

The majority notes that the licensee is not a "common carrier" under section 3(h) of the Communications Act and that, as a result, the licensee is not obligated either to afford access to Mark Lane or to refrain from "editing" his opinions.  Access is not at issue in this case; the only question is whether the licensee is under any First Amendment constraints when it seeks to censor a person to whom it has already granted access.

The majority's convenient contention that, under section 3(h), the licensee is not a "common carrier" merely begs the question.  In my view, the legislative history reveals that the statutory reference to "common carrier" refers only to the regulation of rates charged by stations.  But even if the majority's interpretation were correct, and if section 3(h) was intended by Congress as a means of shielding broadcasters from Constitutional imperatives, then the majority should consider whether section 3(h) can be squared with the First Amendment under the Red Lion case, Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969), and the more recent Business Executives Move for Vietnam Peace v. F.C.C., F. 2d (D.C. Cir. 1971).

The thrust of those cases is that television stations are imbued with at least a partial governmental function, and that they are therefore subject to First Amendment principles.  I would think this especially true of governmentally licensed stations when they broadcast "talk shows" which serve as forums for the airing of various forms of public expression.  For, in such circumstances, "Conduct that is formally private may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 299 (1966).

I repeat, the issue before us is not whether Mark Lane has a legally enforceable "right" to force his way onto the stage of the "Birginia Graham Show" and leave such views as he pleases on video tape for national distribution by the show's owners.  The issue is whether, having invited Mr. Lane on the show in the first place for the expression of views generally known to the producer, the show (or a station broadcasting it) can selectively censor ideas, facts and opinions from the tape because they do not square with those of the management.

The Commission should consider this increasingly important problem in broadcast regulation.  It should attempt to develop an analytic scheme whereby broadcast licensees, like other governmental bodies, might be subject to the doctrine against prior restraints of expression.  Such an approach would surely reduce the broadcast industry's censorship of opinions between the time they are taped and the time they are aired.

But the majority has clearly ignored this approach and has declined to deal in any but the most superficial manner with the very real problem of corporate censorship in this country.

Hopefully, the courts will not abide either the majority's reasoning or its result.  In any event, I cannot.  I dissent.


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