In Re Complaint of the STUDENT ASSOCIATION OF THE STATE UNIVERSITY OF NEW YORK, AT BUFFALO, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 510
RELEASE-NUMBER: FCC 73-246
March 12, 1973 Released
Adopted March 2, 1973
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.
[*510] A complaint and request for a declaratory ruling were filed by Tracy A. Westen on behalf of the Student Association of the State University of New York at Buffalo (Association), Mr. Mark Huddleston, and Mr. Mark Borenstein alleging that the American Broadcasting Company engaged in improper broadcast censorship of political expression.
1. The complainants allege that on October 31, 1970, ABC telecast the Buffalo-Holy Cross football game and during the half-time the Association "presented a program of music, narration and hand formatives" which expressed "strongly felt views on the Vietnam war, racism and industrial pollution"; that ABC, based on a "network policy not to broadcast material which, in its view, composed 'a political demonstration,'" refused to broadcast the half-time show, although it "had previously broadcast 'patriotic' half-time programs supportive of the Vietnam War"; that the TV cameras were turned "away from the football field and focused... instead on the trees that lined the Buffalo campus and the cars driving past the stadium"; that in August 1970, a member of the Association met with ABC Sports Producer Geoff Mason to discuss the program; that when Mason was told the program would probably include "anti-war music, a skit, and a narration attempting to tie the war with abuses occurring in this country every day," he "reacted by stressing ABC's concern that the program not alienate the 'potential customers' of sponsors that were buying commercial time during the telecast"; that the only "specific requirement" mentioned by Mason was that "the students give the network, 10 days before the game, a list of music to be played"; that Mason said ABC required this information, not to exert censorship control, but only to check for copyright conflicts; that Mason further stated that "ABC would broadcast whatever the university decided to present, even 'controversial' material, so long as it did not violate FCC regulations concerning profanity and it did not alienate all of the viewers"; and that on October 29, 1970, ABC announced the half-time [*511] show would be blacked out because of its "definite political implications." n1
n1 The complaint regarding the telecast of October 31, 1970, was received by the Commission on October 7, 1971. A transcript of the half-time program, diagrams of the band formations and all documents filed in this case are on file in the Commission offices and are available for public inspection.
2. The complainants contend that "[although] half-time activities have for decades been used to communicate political and social messages, and although ABC has broadcast many such programs both before and after the Buffalo game, the network chose at this time to avert its cameras and censor the program from the sight of its viewers." The complainants state that ABC telecast the Army-Navy game on November 28, 1970. The half-time show of that game, which was broadcast by ABC, is described by the complainants as follows:
... [it] consisted of West Point Cadets and Navy Midshipmen presenting a truckload of petitions to Mrs. Bobby Vinson, national coordinator of the National League of Families of American Prisoners and Missing in Southeast Asia... While thousands or millions of viewers watched, Admiral Thomas H. Moorer, Chairman of the Joint Chiefs of Staff, stepped forward, introduced four "heroes" of the Sontay raid, and announced:
"The 4,300 midshipmen of the United States Naval Academy join me today in praying for the safe and early return of the brave men of our armed forces who are prisoners of war and missing. We call upon all Americans to support the efforts to secure the protection of the Geneva Convention on P.O.W.s for these men and to obtain their early release...."
As the Admiral spoke, midshipmen wheeled onto the field a replica of a bamboo "tiger cage" in which American P.O.W.s had been allegedly kept...
3. The complainants further state that regarding ABC's "inconsistent action" Roone Arledge, President of ABC Sports, stated:
The reason we didn't show the Buffalo half-time was because it was an editorial to get out of Vietnam. The differences today (at the Army-Navy game) is that this had no political viewpoint...
According to the complainants, the issue raised in this complaint is "whether ABC's refusal to broadcast the Buffalo half-time program, based solely on its 'political' content, was a legitimate programming decision, or whether it abridged the speech freedoms of individuals seeking to convey their message via a legitimate communications medium, and individuals seeking exposure to the entire gamut of 'controversial' and 'political' expression."
4. The complainants contend that: the half-time program constituted speech which was entitled to First Amendment protection; the decision to black out the half-time program constituted "censorship of speech"; the First Amendment applies to actions of broadcasters as well as the government since licensees are imbued with attributes of the state ("state action"); "courts have held that once a private or public individual opens up a forum of communication he controls to permit a certain type of speech, he cannot then discriminate between speakers or views based on the content of what they wish to say, arbitrarily accepting certain views and denying access to others"; that by analogy to the Business Executives Move for Vietnam Peace v. FCC, U.S. App. D.C. , 450 F. 2d 642 (1971), cert. granted, U.S. (1972), a broadcaster may not have to "open his forum" to the presentation of ideas through the medium of a football half-time presentation, but once he opens that forum, he cannot then [*512] selectively close that forum solely because the message seeking expression is "political" or "controversial"; ABC's action involved the doctrine of "unconstitutional conditions"; n2 "ABC cannot 'condition' access to its television cameras for half-time programs that contain no political ideologies or only non-controversial ideologies acceptable to a majority of Americans"; under the First Amendment ABC cannot censor the views of others for an improper reason, motivation or justification, i.e., because of the program's "definite political implications." Complainants conclude that while ABC need not telecast any football game or half-time program, it "cannot legitimately reject a half-time presentation based on a 'policy' of excluding all controversial or 'political' viewpoints."
n2 The complainants state this doctrine holds the state to be "without power to impose an unconstitutional requirement as a condition for granting a privilege even though the privilege is the use of state property." Danskin v. San Diego Unified School District, 171 P.2d 885, 891 (Cal. 1946).
5. The complainants request that the Commission:
(1) Rule that ABC's discriminatory refusal to broadcast the Student Association's half-time program, based on a policy of denying access to certain "political" ideas and not others, comprised illegal licensee censorship under the First Amendment and the Communications Act;
(2) Issue a declaratory ruling that where a broadcaster has for many years held open a forum for the expression of certain political and non-political views, such as those traditionally associated with the half-time activities of football game telecasts, it cannot arbitrarily and discriminatory refuse to broadcast other valid ideas which the network feels are unpopular, controversial, or expressive of views with which it disagrees; and
(3) Require ABC to broadcast a film or other reproduction of the half-time program at a suitable time to a similar audience, or, in the alternative, require ABC to make time available for the Buffalo Student Association to convey the ideas and information contained in its half-time program through another format.
6. In response to Commission inquiry, ABC states that the complaint is not that ABC refused to cover the issues dealt with in the half-time program, but rather that ABC refused to cover them in the format of a half-time football show. ABC states that it has fairly covered the issues raised in the half-time show, thus fulfilling its fairness obligations, and argues that since there is no allegation that it has not provided adequate coverage on an overall basis on the issues the complainant intended to raise in its program, no legitimate fairness doctrine complaint has been raised. ABC contends:
Clearly, therefore, the question presented is whether ABC could reasonably conclude that the half-time program contained program material which, while perfectly appropriate for other ABC programming, was inappropriate for inclusion in the telecast of a sporting event. We believe ABC's determination in this regard was wholly consistent with Commission and judicial precedent.
7. ABC states that it is within the licensee's discretion to determine the format and spokesmen for the presentation of views; n3 that "no individual member of the public has the right of access to the air"; that "licensees may exercise their judgment as to what material is presented and by whom," Green v. FCC, 447 F. 2d 323, 238 (1971); and that "[the] licensee does not have to present programming material [*513] which he believes either will not serve the needs or interests of listeners or will not do so well as other programming material...." In re Letter to Cong. Richard L. Ottinger, 31 FCC 2d 852, 853 (1971).
n3 In re Letter to Cong. Oren Harris, 3 RR 2d 163 (1963); Cullman Broadcasting Co., 40 FCC 576 (1963).
8. Regarding its refusal to carry the Buffalo-Holy Cross half-time program and its carriage of the Army-Navy half-time program, ABC states:
... the Buffalo/Holy Cross half-time program was clearly intended to coincide with the Vietnam War "Moratorium Day" and to comment explicitly on national issues. Against this explicit relationship to current public issue discussion, which ABC covered in other programming, the Army/Navy half-time program presented the military pageantry traditionally associated with that contest, plus an ancillary statement seeking humane treatment of American prisoners of war as well as an introduction of three servicemen who had participated in the unsuccessful attempt to free American prisoners of war held in North Vietnam (arguably an implicit statement on a public issue).
9. ABC also states that except in circumstances which involve personal attacks or political broadcasts, the Commission has never charged broadcasters with responsibility for presentation of controversial issue viewpoints within any specified time frame; and that the standard is one of reasonableness on an overall basis rather than one going to individual programs at a particular point in time. ABC states that the question is whether, in circumstances where an issue or issues have been given extended coverage, there remains a specific right of access on the part of specific groups. ABC also notes that Commission policy in this area has been that licensees must have sufficient control as to format, scheduling, and spokesmen to insure that the public may be adequately informed and that "the assertion of a right of access is incompatible with the overriding right of the public to hear all substantial sides of an issue... " In re Committee of One Million, 33 FCC 2d 545 (1971).
10. ABC contends that it could reasonably conclude that the half-time program contained material which, while perfectly appropriate for other ABC programming, was inappropriate for inclusion in the telecast of a sporting event. ABC further states that "[in] circumstances where the dividing line is necessarily subjective and changing, it is sometimes difficult to determine the precise character of particular program material and to ascertain whether it would be appropriate for the program format in question... [Assuming] that the licensee approaches these determinations in good faith, it must have the necessary flexibility to make these difficult and imprecise judgments free from the threat of constantly being second-guessed by a Government licensing agency...."
11. The complainants state that the critical issue is not whether ABC has fulfilled its fairness obligations but rather "whether a Commission licensee can adopt and enforce a policy whereby it may censor from the air, at will, political viewpoints which are expressed directly and "explicitly" in a forum held open to other less controversial views. Regarding ABC's comments concerning the difference between the Buffalo/Holy Cross and Army/Navy half-time shows, the complainants state:
... [*514] ABC's apparent policy is that "implicit," but not "explicit," political messages are "appropriate" for football games -- and it then proceeds to define half-time programs containing patriotic speeches by Generals, introductions of servicemen involved in attempts to free war prisoners, and large mock-ups representing "tiger cages," as "implicit" political messages.
12. The complaints state that three approaches have been developed to assure that programming includes the vigorous presentation of issues as well as entertainment programs: first, that the fairness doctrine "was conceived as a limitation on the power of a broadcaster, to prevent him from ignoring important issues altogether, or from presenting them in a one-sided fashion," and allows the licensee to control the presentation as long as it does not do all the speaking; second, that the Commission developed "a second approach to negate the 'temptation' in licensees to censor controversial views" which requires that "in a number of circumstances -- e.g., equal time requests, personal attacks, replies to political editorials, the 'political party doctrine,' and the 'Zapple doctrine' and so forth -- the Commission ruled that specific individuals have a right to speak;" and finally, the complainant states the Court of Appeals, in Business Executives Move For Vietnam Peace v. F.C.C., hereafter referred to as BEM, developed a "pure access doctrine" which provides "that because broadcasting is an important and powerful forum for speech and communication of viewpoints, and because the First Amendment places its highest protection on individual, self-initiated and self-controlled speech, broadcast licensees cannot reject all attempts at self-initiated, self-expression without some compelling countervailing justification."
13. The complaints contend that ABC has presented no justification for deleting a "political" half-time program since it has carried political half-times shown before and after the one in question. The complainants argue that under the BEM case carriage of a certain type of programming "waives" the argument that additional programming is "inherently disruptive." In support of the proceeding, complainants quote from the BEM case at p. 32-33:
Ordinarily, courts have to make the basic balancing judgment on their own. However, when the administrator of a forum has determined to grant access to some speakers or some picketers, he has implicitly made that basic judgment himself. When some public speaking is allowed in a park, the park's administrator has determined that the normal and proper functions of the park will not be excessively harmed by public speaking. If he then attempts to deny access to other public speakers, he cannot be heard to claim the opposite. The burden is on him to show some very substantial factor distinguishing the disruption they would cause from that caused by the speaking or picketing already allowed.
14. The complainants further argue that a licensee cannot use the explicit-implicit rationale either to discriminate against controversial ideas in favor of status quo ones or to "protect" its audience from controversial expression. Regarding the fairness doctrine cases cited by ABC, the complainants state those cases are inapplicable since the BEM court recognized "access" was a significantly different question than the fairness doctrine.
THE COMMISSION INQUIRY CONCERNING ABC'S PROGRAMMING DECISION
15. In response to Commission inquiry concerning the allegation made in the complaint that Mr. Geoff Mason, ABC Sports Producer, [*515] reacted to a description of the half-time program "by stressing ABC's concern that the program not alienate the potential customers of sponsors that were buying commercial time during the telecast," ABC enclosed an affidavit by Mason in which he denies having made the statement attributed to him. The complainants filed an affidavit by Philip Leaf, 1st Vice President of the Student Association, in which Leaf stated that the thrust of Mason's remarks were that "ABC was concerned that the production would not alienate any of the viewers who were paying for the broadcast of the game," and that "the broadcast of the half-time show was part of a business venture." Complainants also state that since Leaf went to New York specifically to discuss ABC's reaction to the political content of the half-time program, it is reasonable to conclude that Leaf's affidavit reflects the true and accurate recollection of the conversation.
16. The complaint in this case raises various constitutional issues in regard to ABC's decision not to telecast the Student Association half-time activities. In support of its claim that the Student Association was unconstitutionally denied access to the media, the complainants rely on the decision by the U.S. Court of Appeals for the District of Columbia in the BEM case. n4 However, on February 28, 1972, the Supreme Court granted a Commission petition for certiorari and also stayed the mandate of the Court of Appeals in BEM. In view of the fact that the issue of a First Amendment right of access is now pending before the Supreme Court, we will not re-examine that issue here. n5
n4 Supra. In BEM, the court of Appeals held that a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted. The complainants, by analogy to BEM, argue that since ABC carried other political half-time programs, it cannot now argue that additional programming is inherently disruptive, thereby denying the Student Association access to the use of broadcast time.
n5 It should also be noted that we have also deferred consideration of the constitutional issues raised by BEM in our fairness doctrine inquiry pending final adjudication by the Courts. See In the Matter of the Handling of Public Issue Under the Fairness Doctrine, etc., 35 F.C.C. 2d 800, 804 (1972).
17. Under Section 326 of the Communications Act, of 1934, as amended, the Commission is prohibited from censoring material broadcast by the licensee. The licensee has discretion in discharging his public interest obligations and must be allowed to exercise reasonable discretion as to the type of programming chosen for broadcast. As stated in Letter to Cong. Richard L. Ottinger, 31 F.C.C. 2d 852, 853 (1971):
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.
If the licensee's discretion is exercised reasonably, the Commission can take no further action.
18. In its response to the complaint, ABC states it concluded that the Student Association program material, while appropriate for other [*516] ABC programming, was not appropriate for inclusion in a broadcast of a sporting event, and that since the Student Association program was clearly intended to coincide with the "Moratorium Day" activities, the program constituted an explicit comment on national issues which ABC chose to cover in other programming.
19. ABC's decision not to broadcast the Buffalo half-time activities would raise a serious question of compliance with the public interest standards of the Communications Act if it had a policy, as the complainants contend, of "denying access to certain political ideas and not others, or if it "arbitrarily and discriminately' refused to broadcast valid ideas which are controversial." As stated in Letter to Cong. Richard L. Ottinger, supra, 853:
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.
As support for their contention that ABC's decision was arbitrary, complainants cite ABC's broadcast of half-time activities during the 1970 Army-Navy game. However, ABC stated that it regarded its broadcast of the half-time of the Army-Navy game as part of the military pageantry traditionally associated with the game, and that the statement seeking humane treatment for prisoners of war was ancillary to the program, whereas, the Student Association program was an explicit statement on controversial issues which ABC had covered in its overall programming. Complaints do not contend ABC has not extensively presented opposing views and different individuals and groups representing opposing views both in its public affairs programming and in its news coverage on the issues herein. n6 From these [*517] facts it does not appear that ABC has a policy of refusing to broadcast certain political ideas while broadcasting opposing ones; nor does it appear that ABC has "arbitrarily" and "discriminatively" refused to broadcast valid ideas which are controversial.
n6 In the attached "News Exhibit" ABC lists its extensive coverage of the issues concerning the Vietnam War, racism, and the environment, and also the presentation of these issues by different individuals holding opposing viewpoints. For example, on the Issues and Answers program some of the individuals offering differing views on the Vietnam War during 1970 included:
Jan. 11, 1970
H. Ross Perot
May 7, 1970
Sen. William Fulbright
July 26, 1970
Sen. John Stennis
Aug. 23, 1970
Sen. George McGovern and Sen. Robert Dole
Oct. 25, 1970
Swedish Prime Minister Olaf Palme
On its news documentary series some of the programs broadcast included:
Missing in Randolph (The loss of family, friends and community when a young man does not return from combat)
The Loyal Opposition (Analysis of Nixon Administration foreign and domestic programs -- Sen. Edmund Muskie, DNC Chm. Larry O'Brien, and Rep. Henry Reuss)
P.O.W. -- Next of Kin (The anxieties of waives and families of P.O.W.'s and what is done to gain P.O.W.'s release)
Vietnam: Topic A (The successes and failures of Vietnamization, pacification and land reform)
In addition, ABC lists its coverage of the issues surrounding the Vietnam War in its general news broadcasts.
Some examples of ABC's efforts in regard to the environmental and ecology issues include:
No Deposit, No Return (As a prelude to "Earth Day," students at the Univ. of Michigan held a teach-in featuring a "mess-up" followed by a "clean-up")
The Poisoned Planet (Pesticides, herbicides and insecticides: use of chemicals and their long-range effect on the environment and the food supply)
Death Be Not Loud (How people may be suffering physical and psychological damage due to rising noise levels)
In addition, ABC lists its Special Reports:
The President's State of the Union Message
Earth Day: An SOS for Survival
Some examples of ABC's efforts in regard to the issue of racism include:
The Panthers (A study of the Black Panther Party featuring a poll of Black Americans regarding their opinions of the Panthers)
The Eye of the Storm (A study of the roots or prejudice in an Iowa School)
Unions and the Blacks (Current situation facing Black Americans in the American labor movement)
20. There is also the question whether ABC is following policies that are inconsistent with the public interest. Citizens Communications Center 25 F.C.C. 2d 705 (1970). But there is no showing here of any such policy. It can exercise good faith judgment as to whether to present a particular controversial issue viewpoint in the midst of an entertainment or sports program. The licensee might regard such presentation as jarring or inappropriate at these times. We stress that it is not a matter of how the FCC would program the station, and that we cannot be called upon to review these myriad judgments of taste or appropriateness. There can be a thousand shadings, and licensees could reasonably reach diametrically opposing conclusions. So long as the licensee has not adopted guiding policies that conflict with the public interest standard, the Commission cannot properly intervene in this sensitive programming area. Under a contrary course, any participant in an entertainment, talk or sports show, who was told by the licensee that some controversial material he wanted to present "just didn't fit in," could complain and obtain review of this Governmental agency.
21. In essence the claim in this case is not that ABC has failed to present contrasting views on the issues of the Vietnam War or the environment, but that ABC failed to present the program of the Student Association itself. However, aside from a few well-defined situations, no particular person or group has the right to use a licensee's broadcast facility. n7 The licensee is given wide discretion in its selection of spokesmen and presentation of issues, and it is the right of the public to be informed rather than the right of any particular individual or group to use a broadcast facility which is paramount, Red Lion Broadcasting Co., Inc., v. F.C.C., 395 U.S. 367 (1969). As stated in Green V. F.C.C., 447 F. 2d 323, 328 (1971), "... no individual member of the public has the right of access to the air; the licensees may exercise their judgment as to what material is presented and by whom." See also The Committee of One Million, 33 F.C.C. 2d 545, 548 (1971) in which the Commission said:
n7 See Section 315 of the Communications Act of 1934, as amended, regarding "equal opportunities"; the personal attack and political editorial section of the Commission's Rules (Section 73.123); and Nicholas Zapple, 23 F.C.C. 2d 707 (1970).
The Commission's consistent policy, now under review, has been that licensees must have adequate control to insure that the public will be reasonably informed, and that the assertion of a right of access is incompatible with the overriding right of the public to hear all substantial sides of an issue, particularly in view of the licensee's duty to present an opposing viewpoint without charge if that is necessary to insure that a conflicting viewpoint is not denied a hearing. We read Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969), as being consistent with our position and, indeed, as rejecting a personal right of access.
In light of the Commission's long-standing polices as set forth above, the Student Association's claim for its own personal right of access is denied.
22. One other matter remains, the conflicting statements of Mason and Leaf. Mason, ABC Sports Producer, denied that he had indicated [*518] ABC was concerned that the half-time program would alienate customers of the commercial sponsors of the football broadcasts. Leaf, 1st Vice President of the Student Association, offers a contrary affidavit in which he states that the thrust of Mason's remarks were that ABC was concerned that the broadcast not alienate any of the viewers who were paying for the broadcast.
23. The Commission would be concerned if a licensee chose to broadcast material based on its private commercial interest rather than on the public interest. However, other than the affidavit of Leaf, complainant has afforded no evidence to support its contentions. In this case there is a conflict of memory between Mr. Leaf and Mr. Mason. As we stated in Hunger in America; 20 F.C.C. 2d 143, 147 (1969):
... [There] is a conflict, with the memory of the CBS witnesses differing from that of the hospital personnel. In these circumstances, it is, we believe, inappropriate to hold an evidentiary hearing and upon that basis (i.e., credibility or demeanor judgments) make findings as to the "truth" of the situation. The truth would always remain a matter open to some question, and unlike a tort or contract case, where a judgment must be made one way or another, that is not the case here. The issue presented here by the complaints is not the one under the fairness doctrine, concerned with presentation of contrasting viewpoints (a different matter upon which we do not pass), but rather, whether to find the licensee has sought deliberately to slant the news... [Intervention] by the Government should be limited to cases where there is extrinsic evidence involving the licensee or management or in the unusual case where the matter can be readily and definitely resolved.
While we cannot resolve the conflict, evidence before the Commission shows that ABC has broadcast the very views which complainant states were to be presented during the half-time program. Therefore, under the circumstances and based on the information before us, we cannot conclude that ABC's decision not to broadcast the program was based on reasons contrary to the public interest or violative of any Commission rule or policy.
Leaving aside the constitutional issues raised by the complainants, it is clear that ABC does not have a "policy" of denying access to certain ideas and not others. Although the complainants do not rely on the fairness doctrine for their claim, but rather base their argument on a "right of access" concept, we note that ABC has broadcast many public affairs programs on the issues of the Vietnam War, as well as having covered these issues on its news programs. Because of ABC's apparent compliance with the fairness doctrine requirement of presenting contrasting views on issues of public importance, it does not appear that ABC has "arbitrarily and discriminately" refused to broadcast valid ideas simply because they are "political", "unpopular", "controversial", or "expressive of views with which it disagrees." Furthermore, the decision by ABC not to broadcast the half-time activities was within the degree of discretion allowed a licensee in choosing material for broadcast; this is particularly so in light of the fact that ABC has, in its overall programming extensively covered the [*519] issues raised by the Student Association half-time program. For the above reasons, the relief requested by complainants IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
On October 31, 1970, the American Broadcasting Company (ABC) televised the Buffalo-Holy Cross football game. When it came time for the half-time show -- a musical narrative critical of the Vietnam War -- ABC's cameras were averted, focusing not on the field, but, rather, on passing automobiles. On November 20, 1970, ABC televised the Army-Navy football game. But this time the viewing audience was allowed to watch the half-time show -- a pageant designed to encourage citizen support for American prisoners of the Vietnam War.
The Student Association of the State University of New York, distressed over ABC's apparent preference for combining football with essentially pro-war expression, filed this complaint seeking F.C.C. disapproval of ABC's policies. Today, while admitting that broadcasters have a statutory duty to serve the public, and while admitting that a broadcaster's programming discretion is, therefore, not unlimited, the F.C.C. majority refuses to examine the reasons underlying ABC's deletion of the anti-war half-time show during the Holy Cross game. In effect, then, the majority holds that, at least with respect to censorship decisions, a broadcaster's discretion is virtually as broad as that broadcaster's imagination allows. I dissent.
The F.C.C. majority has held, over my dissents, that neither the public nor the public's elected representatives have a Constitutional right to obtain access to the broadcast media. See Business Executives Move For Vietnam Peace, 25 F.C.C. 2d 242 (1970), reversed, Business Executives Move For Vietnam Peace v. F.C.C., 450 F. 2d 642 (D.C. Cir. 1971); Availability of Network Programming Time to Members of Congress, F.C.C. 72-1194, F.C.C.2d (1973).
The majority has also held repeatedly, again over my objections, that once such access is granted, broadcasters do not encroach upon constitutional rights by censoring views with which those broadcasters might, for whatever reason, find not to their liking. See, e.g., Letter to Congressman Richard L. Ottinger, 31 F.C.C. 2d 852 (1971); Letter to Tracy Westen re Mark Lane, F.C.C. 2d (1972). In essence, the majority has rejected the theory that broadcasters, licensed by the F.C.C. to serve a peculiarly public function, are imbued with the sort of attributes of "state action" necessary to subject them to specific Constitutional restraints.
The majority concedes, however -- as well it must, given the language of the Communications Act of 1934 -- that broadcasters do have a duty to serve the "public interest, convenience or necessity." And while the majority has nevertheless steadfastly refused to inject any precision into so amorphous a command, it would appear eminently reasonable to suggest that this Congressional mandate embodies, at the very least, principles of Constitutional proportion. For, above all else, the Constitution is designed to protect the public from governmental excesses in a manner very similar to the protections from broadcast abuses [*520] afforded the public through the "public interest" standard. Though it may well impose restraints upon broadcasters which go far beyond the limits imposed by Constitutional principles, then, the Congressional command embodied in the 1934 Act would appear to preclude broadcasters from engaging in the sorts of activities in which they could not engage were they cloaked with state authority. See Johnson and Westen, A Twentieth Century Soapbox: The Right to Purchase Radio and Television Time, 57 U. Va. L. Rev. 574, 607-608 (1971).
Even assuming arguendo that the "public interest" standard might not preclude broadcasters from imposing a blanket ban on access to parties desirous of expressing controversial views, see Business Executives Move For Vietnam Peace, supra, it is clear that that standard demands that once access is afforded to some it may not be denied to others on the basis of the content of the proposed expression. In other words, even if access to the media were not a right of constitutional proportions, once access is granted by broadcasters it must be administered with an even hand. The Constitution demands this much, see, e.g., Marsh v. Alabama, 326 U.S. 501 (1946); Harper v. Va. Bd. of Elections, 383 U.S. 663 (196). And, properly viewed, the "public interest" should command no less.
Under such an approach, of course, it is incumbent upon this Commission to examine ABC's asserted justifications for its treatment of the Holy Cross-Buffalo half-time show -- treatment which, on its face, was radically different from that afforded the Army-Navy game half-time show. ABC attempts to justify this different treatment by arguing that the Army-Navy show included "traditional military pageantry," whereas the Holy Cross-Buffalo show presented material (the band in the shape of the peace symbol) "inappropriate for inclusion in the telecast of a sporting event." In short, ABC attempts to justify its censorship of the Holy Cross-Buffalo show and its carriage of the Army-Navy show on the theory that pro-war expression is somehow more suited to football than is anti-war expression.
Personally, I am somewhat underwhelmed both by the justification and by its implications. And the majority's acceptance of that justification is simply irresponsible. For, in placing the stamp of legitimacy upon such a justification, the majority approves the broadcast censorship of expression based on the content of that expression.
The majority's approach is as irrational as it is irresponsible given the majority's own concession that it would be concerned if "a licensee chose to broadcast material based on private commercial interest rather than on the public interest." Through this remarkable statement, the majority suggests that a broadcaster may censor expression based on the content of that expression so long as the censorship is not motivated by commercial concerns. Even on this narrow and somewhat disturbing theory, however, complainants have presented evidence which makes out a prima facie case that ABC engaged in just such commercially-motivated censorship.
First, it is common knowledge that the commercial broadcasting industry -- a virtual salve to the rating systems -- makes programming decisions in conformance with the advertising industry's demand for the largest possible audience. Advertisers tend to support only that [*521] programming which is devoid of controversy on the contemptuous theory that the vast majority of Americans will not tolerate programming which stimulates thought processes, which inspires, which educates or which does more than lull viewers into a dull state of witlessness. With very rare exceptions, the commercial broadcasting industry consistently does the advertising industry's bidding. See the Statement of David W. Rintels before the Senate Subcommittee on Constitutional Rights, Feb. 8, 1972.
Second, complainants have presented an affidavit by their First Vice President wherein it is alleged that ABC's sports producer actually admitted that the network's refusal to carry the Holy Cross-Buffalo half-time show was motivated by ABC's desire to avoid offending its advertisers' customers. Apparently, ABC had resolved that while anti-war sentiments would not sit well with football fans, extravaganzas lauding the military are as patriotic as the game of football itself. ABC's sports director, of course, denies that he made such remarks, and in the face of such obviously conflicting evidence, the FCC majority simply abdicates its role.
The majority, which has admitted that purely commercially motivated programming decisions would offend the "public interest" standard, asserts, with remarkable casuistry, that any exploration into ABC's real motivation would constitute censorship by the FCC. In support of this approach, the majority relies upon Hunger in America, 20 F.C.C. 2d 143 (1969), where the Commission held that absent extrinsic evidence of motives inconsistent with the public interest, F.C.C. investigation into charges of "news staging" would be inappropriate.
As I have indicated on prior occasions, see, e.g., Letter to Albert Kramer, 25 F.C.C. 2d 705, 713 (1970); Letter to Tracy Westen, supra, while I fully support the application of the "extrinsic evidence" rule enunciated in Hunger in America to cases of broadcast journalism "staging," I simply believe it inapplicable to cases of alleged censorship such as the instant one.
News "slanting" or distortion, while properly disfavored by the F.C.C., is an extremely subtle phenomenon, difficult to discover and prove if only because no news documentary can possibly provide all the information existing on a topic being covered. For this reason, and because the Commission did not wish to cast a "chilling effect" over broadcasters desirous of presenting important information to the American public, the Commission adopted its "extrinsic evidence" test to avoid the dangers of overboard regulation.
Censorship, in striking contradistinction to news slanting, is easy to detect. It is especially easy in the instant case ABC simply averted its cameras during one portion of a broadcast.
By refusing to make the requisite inquiry the F.C.C. majority, far from deterring broadcasters from presenting informative, controversial programming, simply strengthens the broadcasting industry's resolve to censor such programming at every possible opportunity. As usual, the industry benefits while both our process and the public can only suffer.