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In re Complaint of UNITED FEDERATION OF TEACHERS, NEW YORK, N.Y. Concerning Station WBAI-FM, New York, N.Y., Fairness Doctrine




17 F.C.C.2d 204 (1969)




MARCH 26, 1969







[*204]  DAN SANDERS, Director of Public Relations, United Federation of Teachers, 260 Park Avenue South, New York, N.Y. 10010.


DEAR Mr. SANDERS: This is in reply to your complaint filed January 15, 1969, urging the Commission to conduct an investigation the conduct of station WBAI-FM because material on the "Julius Lester" program of December 26 was patently anti-Semitic.  Subsequently, a second "Julius Lester" program on January 23, 1969, also became the subject of many complaints received by the Commission, again because of material pointed out as being anti-Semitic.  As requested, the Commission has examined into the matter.  We shall set out the facts as to these broadcasts and the licensee's response, before turning to our disposition of your complaint.


A.  The Broadcasts in Question


On the December 26, 1968, program, the host, Julius Lester, introduced Mr. Lester Campbell, a former teacher of Afro-American history at Junior High School No. 271 in New York, who read several poems by a young black poet, Thea Behran.  The second of these poems entitled "Anti-Semitism," was dedicated to Albert Shanker and reads as follows:


Hey, Jew boy, with that yamulka on your head

You pale faced Jew boy -- I wish you were dead

I can see you Jew boy -- no you can't hide

I got a scoop on you -- yeh, you gonna die

I'm sick of your stuff

Every time I turn 'round -- your pushin' my head deeper into the ground

I'm sick of hearing about your suffering in Germany

I'm sick about your escape from tyranny

I'm sick of seeing in everything I do

About the murder of 6 million Jews

Hitler's reign lasted for only 15 years

For that period of time you shed crocodile tears

My suffering lasted for over 400 years, Jew boy

And the white man only let me play with his toys

Jew boy, you took my religion and adopted it for you


 [*205]  But you know that black people were the original Hebrews

When the U.N. made Israel a free independent State

Little 4-and 5-year-old boys threw handgrenades

They hated the black Arabs with all their might

And you, Jew boy, said it was all right

Then you came to America, land of the free

And took over the school system to perpetrate white supremacy

Guess you know, Jew boy, there's only one reason you made it

You had a clean white face, colorless, and faded

I hated you Jew boy, because your hangup was the Torah

And my only hangup was my color.


Following the reading of a final work of the same poet, Mr. Lester expressed hope that callers in the interview part of the program would not get hung up on the poem entitled "Anti-Semitism." Several of the callers, however, did deplore the poem.  Mr. Lester in response suggested that he did not praise the sentiment in the poem but that he thought his listeners should be exposed to this element of opinion in the black community.


On the January 23, 1969, program, Mr. Lester's guests, Messrs. John Marsh, chairman, Afro-American Student Association; Tyrone Woods, representing concerned Parents and Students of Bedford-Stuyvesant; and John Marson, Tilden High School student, first discussed black reaction to the poem "Anti-Semitism." The group agreed that many blacks support the sentiments expressed in the poem but disagreed on how widespread this support may be.  Conversation then ranged over the many problems of public education for blacks, especially integration and violence.  In this discussion, Mr. Woods said the following:


* * * it seems any time some kind of discriminatory acts or some kind of racist act is shot towards black people, Puerto Rican people, everyone's ears all of a sudden goes deaf.  No one hears it.  And when something happens to one of these kids, the first thing they do is start raising cane, you know.  It tickles me really, the fact that nine out of 10 of them will tell you that they are with you, they identify with you, they understand your persecution, they understand that that's a lot of hog-wash, you see, because they can bring up what Hitler has done to 6 million Jews, what Hitler did to 6 million Jews isn't nothing, in terms of what has been done to black folks over hundreds of years.  They don't relate at all to the amount of black folks between 8 and 12 million killed by Leopold or the amount of black folks that was killed in transporting them from their homeland, here to this foreign land.  You know in relation to that, all that relates here is what Hitler done to them.  As far as I am concerned more power to Hitler.  Hitler didn't make enough lampshades out of them.  He didn't make enough belts out of them.


The reaction of the group to these remarks was to discuss suffering of blacks and Jews and the guilt which some blacks feel when they are accused of being anti-Semitic.  Mr. Lester suggested that it can be a "dead-end street if we get too involved in that hate thing," and that it is a waste of time to hate.  The conversation then ranged over the emphasis and uses of the love and hate by the black people to achieve their goals.


In the telephone question portion of the show, several callers deplored the anti-Semitic overtones of the opinions, especially of Mr. Woods.  They questioned the value of classifying all Jews as enemies, when many Jews, such as the civil rights workers in the South, have  [*206]  been friends to the blacks.  Some comment by Mr. Lester's guests suggested in response that blacks are anti-everything, not just anti-Jewish.


The licensee's response


The licensee, in a letter filed March 12, 1969, submitted material in response to a Commission request for full information concerning the matter.  It stated that WBAI's concern with racism and the confrontation between Negroes and Jews is not a recent development, and pointed to several programs in the period 1967 to February 1969 which dealt with such matters as civil rights, race relation, black attitudes, and Jewish affairs and culture.  Thus, the November 1967 program, "Negroes and Jews," dealt extensively with the question of the Negroes' antagonism against Jews through a series of interviews, recitations of authorities and commentary.  The program concluded with the hope that mutual perils and interests of Negroes and Jews could overcome the baser effects of prejudice and bring peace to these warring minorities.


As to the broadcasts in question, the licensee referred to the statement of the board of directors of WBAI, read by its chairman, Dr. Harold Taylor, on WBAI on January 28, 1969.  The statement asserts that "the anti-Semitic views expressed over WBAI are deeply repugnant to all of us connected with the station"; that it would, however, be a mistake to eliminate the expression of the views, since "to be informed of the existence and extent of dangerous social forces is to take the first step toward coping with them" and that the station has been trying to become "* * * responsible not only for presenting views counter to those expressed by anti-Semites, but for establishing a forum of public discussion and education in which the dangers of bigotry, whether from blacks or whites, the left or the right, are counteracted by informed and enlightened analysis of what the social and educational problems really are."


Mr.  Taylor, in a personal statement, notes that listeners often do not realize that there are others, broadcast at other times, expressing contrary views and that in the case of live programs, the speakers speak without preediting by the station.  He concludes:


* * * when there is an issue of the kind in which we are presently involved, it seems to me that we at WBAI, whether the members of our board, the station manager, the program director or, in this case, Julius Lester, the program producer, have an obligation to extend the range of discussion, and to do everything in our power to counteract the effect of bias and prejudice by a fair and judicious treatment of the entire subject.  That is what we have been trying to do, and what we will be doing more intensively in the days and weeks ahead.  We are organizing programs in which major figures in the black community and the Jewish community will have a full opportunity to discuss the educational and social problems raised by the development of anti-Semitism in relation to the race question, and the programs on the station will reflect, as they have in the past, our concern for helping to solve the problems which racial conflicts have raised.


WBAI's president, Mr. Robert Goodman, then made a statement along the same lines (e.g., that WBAI's "live programing has revealed an evil in our society * * * an old cancer in a new place * * * which, unless mitigated by wise policy, may well get out of hand * * *").  To the complaints that Julius Lester should be silenced, Mr. Goodman  [*207]  stated: "Our answer is that the practice of freedom of expression, the process of full discussion, open to all, involves some risks to the society that practices it.  But the stakes are high and the risks must be run."


The licensee also points to the statements made by Julius Lester on his January 30, 1969, program, where Mr. Lester asserted that he sees his role as revealing to nonblacks "some understanding of the black frame of reference." He then stated as to anti-Semitism:


I'm willing to admit that anti-Semitism is a vile phenomenon.  It's a phenomenon which I don't totally understand as it has existed in the world.  It's a phenomenon which has caused millions upon millions of people to lose their lives.  However, I think that it's a mistake to equate black anti-Semitism with the anti-Semitism which exists in Germany, in Eastern Europe, and in the Middle East.  If black people had the capability of organizing and carrying out a program against the Jews, then there would be quite a bit to fear.  Black people do not have that capability.  Not only do blacks not have the capability, I doubt very seriously if blacks even have the desire.  Part of the present controversy is coming about because no one has bothered to try and see that black anti-Semitism, if it can be called that, and I'm not sure it can, is a much different phenomenon.  It is a different phenomenon because the power relationships which exist in this country are different.  In Germany, the Jews were the minority surrounded by a majority which carried out against them rather heinous crimes.  In America, it is we who are the Jews.  It is we who are surrounded by a hostile majority.  It is we who are constantly under attack.  There is no need for black people to wear yellow Stars of David on their sleeves; that Star of David is all over us.  In the city of New York a situation exists where black people, being powerless, are seeking to gain a degree of power over their lives and in the institutions which affect their lives.  It so happens that in many of those institutions, the people who hold the power are Jews.  Now in the attempt to gain power, if there is resistance by Jews to that, then of course blacks are going to respond.  * * *


Mr. Lester then referred to blacks as a "colonized people" and the nonblacks, including Jews, as "colonizers," stating:


When a powerless people begin to fight for the power to control, and have some say over their own lives, then the first thing they will do is to verbally hurt the most immediate enemy.  In this particular instance, that hurt, the articulation, the demand that the colonizer listen, is accomplished in a violent manner, like the language of the poem.  In this particular instance, the language sets off a historical response which has no relationship to what black people are talking about.


Mr. Lester then made similar observations concerning the remarks of Tyrone Woods that Hitler should have made more Jews into lampshades, and stated that he feels "confident that those who have listened to this program more than once know that I have an intense reverence for life; and likewise, an intense love of people."


In another statement, the licensee invited the following organizations to engage in cooperative action over the station's facilities to combat "the dangers of bigotry, whether from blacks or whites": the Anti-Defamation League of B'nai B'rith, the American Jewish Congress, the Workmen's Circle, the Jewish Defense League, the New York Council of Rabbis, the National Jewish Committee on Law and Public Affairs, the United Federation of Teachers; the Afro-American Association, Black Student Unions, CORE, the Urban League, and the NAACP.


It also stated that it was resuming an earlier regular feature in WBAI's program schedule, the weekly commentary on Jewish affairs, a program in which spokesmen for all the Jewish organizations in the city are now being invited to participate.


Finally, WBAI's general manager stated that throughout the course  [*208]  of the teacher's strike, WBAI "respectfully invited the union to avail itself of our aim to respond to criticism and to publicize its position; that on some occasions, union spokesmen availed themselves of the offer, while at other times, they did not accept the offer * * *."




We turn now to a discussion of the merits of the matter, which, in view of prior precedents, need not be extended.  First, we note that with the exception of broadcasts by political candidates, the licensee is responsible for all material presented over his facilities.  This means that the licensee must exercise appropriate responsibility in the treatment of live broadcasts through the various means available to it (e.g., selection of, and action taken by, the moderator; in some cases, tape delay even if only a few seconds).  The need for, and choice of, any particular means is, of course, a matter for the reasonable judgment of the licensee in the varying programming situations.


Turning to the critical issue in this case, n1 whether the Commission may take action concerning WBAI's presentation of the above material set out on pages 1 to 3, we point out that the Commission is prohibited by law from taking action "which shall interfere with the right of free speech by means of radio communication." (Sec. 326 of the Communications Act of 1934, as amended, 47 U.S.C. 326.) This means that Commission action in this respect can be concerned only with speech not protected by the first amendment, such as the broadcast of obscenity and lotteries.  (See 18 U.S.C. 1304, 1464.) See also Carroll v. Princess Anne, 393 U.S.  175, 180 (1968), where the court stated:


n1 Complainant also referred to the fact that it could not obtain from WBAI-FM a copy of the poem in question.  The station asserted that there was no transcript available of the program, and a copy of the poem was apparently supplied from other sources.


We do not here challenge the principle that there are special, limited circumstances in which speech is so interlaced with burgeoning violence that it is not protected by the broad guaranty of the first amendment.  In Cantwell v. Connecticut, 310 U.S. 296, at 308 (1940), this court said that "[no] one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot.


We believe the above cases also make clear that in this sensitive area, governmental intervention must be limited to the flagrant case, clearly calling for remedial action.  (Cf., e.g., Letter to Mr. Bernie Imes, Jr., F.C.C. 65-433, May 19, 1965) (where in the tense "burgeoning violence" crisis at the time of enrollment of Mr. James Meredith at the University of Mississippi, licensees made repeated broadcasts of appeals to listeners to assemble at the university on the day of the rioting).  On the facts before us (e.g., the material involved, the context in which it was presented, the nature of the showing made in the complaints), we do not believe that we are here involved in the narrow area described above.  We thus treat the case as one involving the complaint that the station broadcast material which was patently anti-Semitic, with the station's response that it did so as part of a continuing effort to illuminate a dangerous new form of bigotry and, by discussion of the problem, to aid in its eradication and in developing better relations between the races.


 [*209]  We recognize that media critics and others have asserted that while it is desirable for broadcasters to focus on the problem, there is no need to do so by permitting "sensational" statements such as here involved.  (See the New York Times, Feb. 2, 1969, p. D 19.) While there may well be substance to such criticism, this is not a matter appropriate for this agency.  (Cf. Letter to American Broadcasting Co., F.C.C. 69-192.) Rather, the licensee must evaluate the merits of such criticism, with particular attention to whether its approach needlessly skirts too closely to the burgeoning violence situation.

In its memorandum opinion of June 17, 1966, with respect to a complaint by the Anti-Defamation League of B'nai B'rith against radio station KTYM, 4 F.C.C. 2d 190, 191-192 (1966), affirmed Anti-Defamation League v. Federal Communications Commission, 403 F.2d 169 (C.A.D.C.), certiorari denied,     U.S.     (1969), the Commission stated "* * * that its function is not to judge the merit, wisdom, or accuracy of any broadcast discussion or commentary * * *," but rather to insure that reasonable opportunity is afforded for the presentation of contrasting viewpoints on controversial issues of public importance.  It further stated:


It is the judgment of the Commission, as it has been the judgment of those who drafted our Constitution and of the overwhelming majority of our legislators and judges over the years, that the public interest is best served by permitting the expression of any views that do not involve a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.  Terminiello v. Chicago, 33 U.S. 1, 4 (1949); Chaplinsky v. New Hampshire, 315 U.S. 568; Ashton v. Kentucky [384 U.S. 195], 34 LW 4398 (1966). This most assuredly does not mean that those who uphold this principle approve of the opinions that are expressed under its protection.  On the contrary, this principle insures that the most diverse and opposing opinions will be expressed, many of which may be even highly offensive to those officials who thus protect the rights of others to free speech.  If there is to be free speech, it must be free for speech that we abhor and hate as well as for speech that we find tolerable or congenial.


The Commission's concern in this situation is thus limited to whether the licensee, having initially discharged its responsibility for all that it broadcasts, has fulfilled the obligation imposed by the fairness doctrine to afford reasonable opportunity for the presentation of conflicting viewpoints.  (Sec. 315(a) of the Communications Act of 1934, as amended.) In view of the showing which has been made above (pp. 2-6), there is no question but that the licensee is affording reasonable opportunity for such presentation as to the issue here involved.  Thus, upon the basis of the material presently before the Commission, no further action regarding WBAI-FM is warranted.


Commissioner Robert E. Lee absent and Commissioner Cox, while concurring, would have preferred to spell out more precisely what the obligations of the licensee are in initially determining what material to broadcast over his facilities.  Commissioner Johnson concurred in the result and will issue a statement at a later date.







(Letter to Mr Dan Sanders, Director of Public Relations, United Federation of Teachers, Mar. 26, 1969)





The Censor                                       The Censured

The Censor sits                                Who am I to say who can speak and

Somewhere between                        who can't speak?  If I don't feel this

The scenes to be seen                     can has a right to say who can speak

And the television sets                      and who can't speak, then he feels

With his scissor purpose poised       that naturally I don't have the right

Watching the human stuff                 to limit him.  So to reach a compromise

That will sizzle through                     everybody speaks, and I support that.

The magic wires  

And light up

Like welding shops                           I was shocked by the statement.  I

The ho-hum rooms of America          would not have said it.  However,

And with a kindergarten                    knowing damn well that the black

Arts and crafts concept                     community does not have honest access

Of moral responsibility                      to the air, I was not going to

Snips out                                           put him down.  He had a perfect

The rough talk                                  right to say that, you know.  And

The unpopular opinion                      that is my role in the media -- to

Or anything with teeth                       give the black community access to

And renders                                      speak as they see fit.  I'm not going

A pattern of ideas                              to set the standards.  But white

Full of holes                                      folks and I guess Jews, too, expected

A doily                                               me to be their representative, and

For your mind                                    that's what shook them up -- that


Mason Williams, "The Mason           they had a black man at the microphone

Williams Reading Matter" (1969).     who was not going to be their



                                                          Interview with Mr. Julius Lester,

                                                          "Evergreen," April 1969, p. 75.


I juxtapose these two statements -- Mason Williams' lament at industry self-censorship and its impact upon our society, and Julius Lester's defense of the use of the free speech protections -- because the contrast so neatly illustrates the Orwellian "newspeak" nature of our country's present dialogue about programming standards on radio and television.


A story in this week's TV Guide quotes a high-ranking network newsman's concession: "We've gone after the common denominator.  There are many vital issues that we won't go near.  We censor ourselves." Not that the confession ought to shock anybody -- including the author, who buried the quote in his story.  Haven't we known this all along anyway? One would think so.


Just recently the broadcasting industry has taken a case all the way to the U.S. Supreme Court to protect its advertising revenues, arguing that it is somehow an "unconstitutional" abridgment of "free speech" for the FCC to rule that broadcasters cannot censor from the airwaves all mention of the health hazards of cigarette smoking.


And about the same time we read that "The Smothers Brothers Comedy Hour" is not to appear next year.  Why?  Mason Williams used to be the principal writer for the show.  His poem addresses the issue.  The network, according to Larry Laurent of The Washington  [*211]  Post, "has argued that an entertainment program is not a proper forum for social comment." The Washington Post, April 5, 1969, p. D-1.  What does this mean, "not a proper forum for social comment"?  Hasn't "social comment" been part of entertainment since the beginning of time?  Wasn't it the stuff of which the troubadours' songs were made?  Hasn't it been the raw material of a Will Rogers or an Art Buchwald?  Of course.  Aren't we therefore left with the conclusion that the only kind of "social comment" that is unfit for television is that which involves, in Mason Williams' phrase, "The unpopular opinion/or anything with teeth"?  For Bob Hope's commentary about the Vietnam war seems fully acceptable to the networks.  And so do other entertainers' critical observations about protesting college students, or gun control legislation.  It's not the subject, it's what you say about it.  And it's not even how unpopular your views may be -- it's who finds them unpopular.  The blacks in America find the absence of black faces from television, and the menial (or "super-Negro") roles played by those who do appear, to be very "unpopular opinion." n1 Mexican-Americans find the commercial about "Frito Bandito" to be spreading an opinion about them which they find very unpopular.  But the networks have expressed less concern about the need to censor opinion that is unpopular with America's disadvantaged and minority groups.  The ideas and life-styles endorsed and purveyed by American television are truly "popular" only with those Americans fortunate enough to be native-born-white-Anglo Saxon-Protestant-suburban-dwelling-middle class-and-over-thirty.  Of course this is censorship pure and simple.  Some ideas are permitted to reach the American people but not others.  As Robert Lewis Shayon writes, "The irony of network censorship is its irrational arbitrary character." Saturday Review, April 5, 1969, p. 48. 


n1 I imagine there are those who found CBS censorship of Smothers' remembrance of Dr. Martin Luther King the expression of an "unpopular opinion." As Jack Gould of The New York Times observed: "In a serious vein, Mr. Smothers asked for remembrance of the anniversary of the assassination of the Rev. Dr. Martin Luther King, Jr., an occasion, incidentally, that no commercial network thought worthy of a special." The New York Times, Apr. 8, 1969, p. 79.


And yet at the same time the industry is giving national distribution to these "doilies for our minds," it is also shouting its loud protests that it is being "censored," or maybe, by Congress or this Commission.  As the New York Times editorialized April 7, the Smothers cancellation is only "the latest example of how the networks profess their right to freedom of expression but fail to exercise it in defense of their own programs." There is censorship in this country all right.  Make no mistake about it.  But also make no mistake about its source.  This Commission opinion, involving radio station WBAI in New York City, and the industry's reaction to the complaint involving its programing, clearly illustrate the real source of any threat to full and free expression in America today.


Mr. Julius Lester is a commentator and moderator on a radio program devoted to the discussion of contemporary and often controversial issues -- many of which concern the tensions between black and white citizens in our society.  Mr. Lester's program is broadcast by radio station WBAI in New York.  Today the Commission has ruled that  [*212]  certain anti-Semitic remarks made by two guests on Mr. Lester's program fall within the protective ambit of the first amendment's guarantee of the freedom of speech.  Although the views expressed by the remarks in question are strongly repugnant to me, I fully support the Commission's decision to preserve the freedom of the forum offered by WBAI for the open discussion of important community issues.  Because the policies involved in the WBAI ruling are vitally important to the problems of broadcasting in a free society, I should like to supply a few additional observations of my own.


The quotation from Mr. Lester, reproduced above, refreshingly restates two of the most fundamental policies underlying the first amendment's guarantee of free speech in the area of broadcasting: The need for access by the public to diverse opinions and beliefs, and the need for access by the public (both individual citizens and community groups) to the media in order to express and convey their opinions and beliefs.  The first amendment's guarantee of free speech is equally important on both levels.  On the public level it assumes that society can best gain access to the "truth" when differing ideas are allowed to compete in the crucible of open, public discussion; it provides a safety valve against public disorder by permitting citizens to substitute the logic of rational discourse for the emotion and violence of social turmoil.  (It was the late Dr. Martin Luther King who observed that, "lacking sufficient access to television, publications and broadcasting, Negroes had to write their most persuasive essays with the blunt pen of marching ranks.") On the individual level it grants to the individual the intensely personal freedom to express himself without restraint, and permits him thereby to participate in the decisionmaking processes of government that affect his life.  See generally, Barron, "An Emerging First Amendment Right of Access to the Media," 37 Geo. Wash. L. Rev. 487 (1969); Barron, "Access to the Press -- A New First Amendment Right," 80 Harv. L. Rev. 1641 (1968); Emerson, "Toward a General Theory of the First Amendment," 72 Colum. L. Rev. 877 (1963).


On the public level, one basic assumption underlying the first amendment's protection of speech is that "the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.  * * *" Associated Press v. United States, 326 U.S. 1, 20 (1944). Free and open communication between individuals of differing and diverse persuasions is essential to the operations of a democratic society.  The opinions and views of others may startle, shock, and even offend.  But the drafters of the Constitution believed that no man has a monopoly on truth, and that the successful operation of a democracy depends on the ability of the participants to contribute their ideas to the "marketplace of ideas."


The Commission has always sought to preserve this diversity of views for the public on radio and television by encouraging the full, open, and robust presentation of widely differing ideas and opinions.  The Commission has acted to this end in three ways.


First, the Commission has attempted to preserve, and at times increase, the diversity of ownership of the mass media whenever it was felt that concentration and uniformity of control might result in uniformity  [*213]  of views.  It has studied the joint control of broadcast stations and newspapers, 9 F.R. 702 (1944), diversity in control of the mass media, 1 F.C.C. 2d 393, 394-95 (1965), and multiple ownership of stations, 47 CFR 73.35, 73.240, 73.636 (1947), 33 F.R. 9075 (1968), and it has proposed rulemaking into the questions of ownership of more than one full-time broadcasting property in a single market, 33 F.R. 5315, 12 F.C.C. 2d 912 (1968), and ownership of broadcast stations by "conglomerate" corporations with substantial nonbroadcast interests, F.C.C. 69-117 (docket No. 18449).  Yet this attempt is at best indirect.  "Diversity of ideas, not multiplicity of forums, is the primary objective of the first amendment." Barron, "An Emerging First Amendment Right of Access to the Media," 37 Geo. Wash. L. Rev. 487, 498 (1969). The existence of multiple forums does not automatically produce diverse and varied ideas.


The Commission has also sought to ensure diversity in the broadcast media by a second method: Its "fairness" and related doctrines.  Generally speaking, these doctrines require a station to afford an opportunity for the presentation of views which differ from, or even oppos, views broadcast by the station in question.  This may involve the offer of time to the opponent of a political candidate who has used the station's facilities, 47 U.S.C. 315(a), the right to rebuttal by those who have been publicly attacked by persons using the station's facilities, 47 CFR 73.123, 73.300, 73.598, and 73.679, or the proffer of time for the presentation of views on issues of great public importance when opposing views have been broadcast by the station, 47 U.S.C. 315(a).  But the Commission's fairness doctrines cannot guarantee the presentation of diverse views by the broadcast media; they can only insure the presentation of a particular view once an opposing one has been broadcast by a particular station.  There is little in Commission policy that requires the broadcast of anything other than the mild and inoffensive.  When controversial positions are never taken initially, the Commission's fairness doctrines do not even come into play.


The relative ineffectiveness of the Commission's first two methods for ensuring diversity of views in the broadcast media increases the importance of the third method.  The Commission's third method is scrupulously to refrain from any attempt to censor the provocative programing content of a licensee, whether by license revocation, punitive fine, or other form of censure.  And it is for this reason that the Commission's ruling with respect to WBAI and Mr. Lester's program acquires particular significance.


It should be noted that WBAI, as well as the other Pacifica stations -- KPFK in Los Angeles, Calif., and KPFA and KPFB in Berkeley, Calif., are unique among radio stations in several respects.  For one thing, the Pacifica stations are neither commercially sponsored, nor primarily supported by public grants or private foundations.  The stations are sustained by contributions from the listeners in their respective communities.  For this reason, there is a rough but reliable test by which one may determine whether the Pacifica stations truly serve at least a sizable segment of the public -- and that is, purely and simply, their continued economic survival.  It is not possible to tell whether the American public would actively support in such a manner  [*214]  many of the commercial programs currently available on radio and television; but so long as WBAI and the other Pacifica stations continue to exist, one may assume that their programming is receiving a substantial measure of public support.  This Commission should be particularly reluctant to impose restraints upon the programming of a station so actively sponsored by its listener community.


The extent of WBAI's community support becomes particularly relevant in view of the wide range of public interest programing it has always displayed.  The objectives of Pacifica Foundation, licensee of WBAI, are thus stated in its articles of incorporation:


The purposes of this corporation shall be in radio broadcasting operations to engage in any activity that shall contribute to a lasting understanding between nations and between the individuals of all nations, races, creeds, and colors; to gather and disseminate information on the causes of conflict between any and all of such groups; and through any and all means compatible with the purposes of this corporation, to promote the study of political and econmic problems and of the causes of religious, philosophical, and racial antagonisms, to promote the full distribution of public information; to obtain access to sources of news not commonly brought together in the same medium; and to employ such varied sources in the public presentation of accurate, objective, comprehensive news on all matters vitally affecting the community.


To this end, WBAI has broadcast, in the 2-year period from January 1, 1967, to January 4, 1969, 263 different programs specifically dealing with civil rights, racism, race relations, and the attitudes of black citizens and culture.  In addition, it has broadcast during the same 2-year period some 90 separate programs relating to Jewish affairs, culture, and history.  It goes without saying that many of these programs have been "controversial," and many have contained facts or opinions which others have found shocking.  Yet the Pacifica stations continue to receive their community's economic support.


Despite the Commission's policies toward diversity of broadcast forums and its fairness doctrines, the diversity of views and opinions in radio and television is dependent almost entirely upon the initiative of the individual broadcaster.  When that initiative is exercised, as it has often been exercised by WBAI, this Commission should be the last to stifle it.  As we said when we renewed the license of WBAI in 1964:


We recognize that * * * provocative programming as here involved may offend some listeners.  But this does not mean that those offended have the right, through the Commission's licensing power, to rule such programming off the airwaves.  Were this the case, only the wholly inoffensive, the bland, could gain access to the radio microphone or TV camera.  No such drastic curtailment can be countenanced under the Constitution, the Communications Act, or the Commission's policy, which has consistently sought to insure "the maintenance of radio and television as a medium of freedom of speech and freedom of expression for the people of the Nation as a whole" ("Editorializing Report," 13 F.C.C. 1246, 1248). "In saying this, we do not mean to indicate that those who have complained * * * are in the wrong as to the worth of these programs and should listen to them.  This is a matter solely for determination by the individual listeners.  Our function, we stress, is not to pass on the merits of the program -- to commend or to frown.  Rather, * * * it is the very limited one of assaying, at the time of renewal, whether the licensee's programming, on an overall basis, has been in the public interest.  * * *"


 In re Applications of Pacifica Foundation, 36 F.C.C. 147, 149 (1964) (italic supplied).  I view the Commission's ruling on the issues presently  [*215]  before us as a strong reaffirmation of the policy we enunciated 5 years ago in the 1964 Pacifica renewals.


The anti-Semitic remarks in question were made in the context of a long-simmering and frequently explosive public debate over "community control" of the public schools in the Ocean Hill-Brownsville section of New York City.  At loggerheads in this dispute were residents of the area's black community and the predominantly white United Federation of Teachers, headed by Albert Shanker -- to whom the poem read over Mr. Lester's program was "dedicated." (The original complaint concerning Mr. Lester's program, it should be recalled, was filed with the Commission by the director of public relations of the United Federation of Teachers.) Although the Ocean Hill-Brownsville dispute was confined to the city of New York, it became for many a national issue -- and beneath that dispute smoldered the issues of racial, ethnic and cultural dissent.  The comments made over Mr. Lester's program on WBAI were to an extent a reflection of certain strains of that dissent.


It is an important but oft-forgotten proposition that dissension and strife are better uncovered and exposed to public view than left to smolder in silence and darkness.  The sources of prejudice and hatred can only be fought when it is known that they exist.  This is the important "disclosure" function of broadcasting: To communicate to the public the problems and sources of dissension within their own communities.  As the manager of WBAI remarked when asked by a reporter whether the station ought to broadcast programming which might cause controversy: "I think it's our responsibility to report news fully.  And it's society's responsibility to remove the causes of controversy." The Realist, February 1969, page 4.  Prof. Alexander Meiklejohn underscored the importance of this view and thus the need for radio and television to present the public with hard factual information and opinion, however unpleasant, when he stated: "[When] the citizens who are to decide issues are denied acquaintance with information or opinion or doubt or disbelief or criticism which is relevant to those issues, * * * the result must be ill-considered, ill-balanced planning for the general good." Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, on Senate Resolution 94, 84th Congress, second session, page 5.  n2


n2 It is because they [a self-governing people] are compelled to act without a reliable picture of the world, that governments, schools, newspapers, and churches make such small headway against the more obvious failings of democracy, against violent prejudice, apathy, preference for the curious trivial as against the dull important, and the hunger for sideshows and three legged calves.  This is the primary defect of popular government, a defect inherent in its traditions, and all its other defects can, I believe, be traced to this one.  (Lippmann, "Public Opinion" 275-76 (1922).)

I do not believe that the goals of a democratic society are ever served by the suppression of views.  As Thomas Jefferson said in his first inaugural address:


If there be any among us who would wish to dissolve this union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.


"The Complete Jefferson" 385 (Padover ed. 1943).  The broadcast by WBAI of the sentiments in question may well have lessened, not  [*216]  increased, the feelings of prejudice in the New York community.  n3 In any event, the tolerance built into any system of truly free speech is essential to an orderly democracy.  As Julius Lester put it:


n3 One letter sent by a listener of WBAI to Mr. Larry Josephson, morning broadcaster and assistant manager of WBAI, indicates support for this view.  Excerpts from this letter, reprinted in full in the February 1969 issue of the Realist, pp. 1, 2, follow:


"DEAR LARRY: I have listened to your last few shows with great interest (not that I don't always listen to you with great interest), and after approximately 2 years of silence, I felt it necessary to add my few words to WBAI's Negro/anti-Semitism dilemma.


"I am young (23) and black, and would have until quite recently been considered some-what anti-Semitic * * *."

(After reviewing his personal experiences in growing up, the author continues.)


"What all this leads to is that although WBAI is having its problems, both ideological and financial, it was very instrumental not only in helping me to recognize my anti-Semitism, but in tracing its roots and thus helping me to understand where the feeling came from.  WBAI made me see that although the majority of my bad contacts with whites were with Jews, the Jews as a people are certainly not my only enemy, and definitely not my most powerful enemy.

"What the Jewish liberals who are threatening to end their support of WBAI fail to see is that contrary to fanning the flames of anti-Semitism, WBAI is in fact helping what small minority of black listenership that it has to realize that the Jew is not his real enemy, although he is his most immediate scapegoat * * *.

* * *

"* * * I think WBAI is the only mass media voice today trying to avert the blackwhite violent confrontation, and it is sad indeed that the station is now threatened financially because it is willing to air all views with understanding as its goal.  Acceptance without reservation isn't needed but understanding and discussion is.  You are a very dim light in deepening darkness.  I hold very little hope for us even if you survive, but I do hope you survive.

"Sincerely, * * *"


If I don't feel this cat has a right to say who can speak and who can't speak, then he feels that naturally I don't have the right to limit him.  So to reach a compromise everybody speaks, and I support that.


Evergreen, April 1969, page 75.


On an individual level, the first amendment offers each citizen the freedom to express his own views and opinions without fear of governmental restraint, and thus gives him a sense of participation in the governmental decisionmaking process.  Mr. Lester's program on WBAI is one of the few broadcast forums available to black citizens for the expression of views on current social problems.  The failure of the mass media today lies not in its broadcasting views such as those expressed on Mr. Lester's program, but rather in its failure to provide any forum at all for the expression of minority views.  The verdict of the Kerner Commission Report on Civil Disorders should not go unheeded:


[The] communications media, ironically, have failed to communicate.  They have not communicated to the majority of their audience -- which is white -- a sense of the degradation, misery, and hopelessness of living in the ghetto.  They have not communicated to whites a feeling for the difficulties and frustrations of being a Negro in the United States.  They have not shown understanding or appreciation of -- and thus, have not communicated -- a sense of Negro culture, thought, or history.

* * *

If what the white American reads in the newspapers or sees on television conditions his expectation of what is ordinary and normal in the larger society, he will neither understand nor accept the black American.  By failing to portray the Negro as a matter of routine and in the context of the total society, the news media have, we believe, contributed to the black-white schism in this country.


"Report of the National Advisory Commission on Civil Disorders," 383 (Bantam ed. 1968).  There is no one better suited to portray the  [*217]  Negro against the backdrop of American society than the black citizen himself.


The black resident of the big city ghetto is cut off from the community that controls his life.  His resultant feeling of helplessness and alienation makes it essential that communications media, such as WBAI, offer to isolated minority group members some access to the broadcast forums the media control.  The growing awareness among legal commentators and courts of the need for access by the public to the media of mass communications, see, e.g., Barron, "An Emerging First Amendment Right of Access to the Media," 37 Geo. Wash. L. Rev. 487 (1969), should not go unheeded by the radio and television stations themselves.  The media should be asked to recall that one of the original justifications for the freedom of the press, incorporated with speech into the first amendment, was the importance of communication between individual citizens.  The Continental Congress itself stated, in a letter to the inhabitants of Quebec in 1774, that "[the] importance of [the freedom of the press] consists * * * in * * * its ready communication of thoughts between subjects * * *."


1 Journals of the Continental Congress, 1774-89, 108 (1904).


The individual resident of the ghetto cannot match big corporations or the Government in speedy, easy access to the mass media.  Stations such as WBAI, which turn over their microphones to residents of large city ghettos, perform an inestimable service both to the public and to those individuals who are able to speak.  Members and representatives of this country's minority groups must be given the broadcast time to speak for themselves.  It is no longer sufficient for the "establishment" to serve as their "interpreters" to the predominantly white majority.  n4 The civil disorders in Harlem, Watts, Detroit, and Chicago during past years amply demonstrate how much is lost in translation.  If 20 years ago loudspeakers and sound trucks were constitutionally required to implement "effective public speech," Saia v. New York, 334 U.S. 558, 561-62 (1948), then surely "effective public speech" today requires access to the news media.  See Kovacs v. Cooper, 336 U.S. 77, 102-03 (1949) (Black, J., dissenting); note, "Fairness, Freedom and Cigarette Advertising: A Defense of the Federal Communications Commission," 67 Colum. L. Rev. 1470, 1484-87 (1967).


n4 Mr. Whitney M. Young, Jr., executive director of the National Urban League, forcefully stated this view in a recent speech to this year's convention of the National Association of Broadcasters.  Commenting on his speech, Mr. Jack Gould of the New York Times wrote:


"Television, to be blunt about it, is basically a medium with a mind closed to the swiftly moving currents of tomorrow.  The networks and stations have erected an electronic wall around the status quo.  The test of a communications medium, especially one dependent on survival through use of air waves that are public property, is a willingness and commitment to make its facilities available to persons other than employees under its direct supervision * * *.


"The sorely needed dialogue on current affairs cannot be fully meaningful if the content must be filtered through a handful of executives, be they in commercial or noncommercial TV.  The dialogue can only be worthwhile if the door is truly open to a diversity of viewpoints and opinions that either may not have occurred to a network's editor or be alien to his personal philosophy."


The New York Times, March 30, 1969, page D-21. (Italic supplied.)


WBAI has been disparagingly referred to as "more an electronic soapbox than an organ of broadcast journalism." Broadcasting, February 10, 1969, page 88.  Yet it is rapidly becoming clear that this country needs many more such electronic soapboxes for those citizens who have been deprived of an "effective" voice to communicate with  [*218]  their fellow citizens, and to feel that they have not been totally silenced.


WBAI's programming today is to many what the New England town hall meeting was to others in past years.  It represents, in many ways, one of the oldest and most important of democratic traditions -- the right of an individual citizen to stand up and speak out in public.  This country's overwhelming size and population have made this right increasingly difficult to exercise.  WBAI and other communications media have initiated a partial return to the fundamentals of "participatory democracy."


It is appropriate, therefore, to recall Mr. Lester's part in this trend toward increased participatory democracy:


[The] black community does not have honest access to the air.  * * * And that is my role in the media -- to give the black community access to speak as they see fit.  I'm not going to set the standards.  But white folks and I guess Jews, too, expected me to be their representative, and that's what shook them up -- that they had a black man at a microphone who was not going to be their representative.


Evergreen, April 1969, page 75.


In light of the significance of the WBAI concept and its importance in first amendment terms, it is a little surprising that the station has such few supporters.  One would think, however, that the staunchest advocates of freedom of speech in the broadcast media of radio and television would be found among the traditional spokesmen for the broadcasting industry.  Unfortunately, this is far from true.


Broadcasters, both individually and in concert, have traditionally avoided controversial programming because sponsors are hesitant to become even subliminally associated with opinions disagreeable to potential purchasers.


Note, "The Federal Communications Commission's Fairness Regulations," 54 Cornell L. Rev. 294, 296 (1969). Yet they are quick to invoke the first amendment's protections "for completely commercial and nonideological ends.  * * *" Barron, "An Emerging First Amendment Right of Access to the Media," 37 Geo.  Wash. L. Rev. 487, 502 (1969).


A study of the occasions on which the broadcasting industry has raised the banner of "free speech" leaves one with the distinct suspicion that these occasions almost invariably coincide with the industry's monetary self-interests.  FCC Chairman E. William Henry made this point succinctly in a speech to the National Association of Broadcasters in 1964.  Chairman Henry had previously proposed that the FCC limit the number of commercials per hour on television.  With a surprising deference to the broadcasting industry, he proposed to adopt the industry's own standards as contained in the NAB Code of Good Practice.  The NAB galvanized itself into instant action, and after intensive lobbying efforts obtained from the House of Representatives a resolution prohibiting the FCC from enacting the industry's own standards into Commission policy (H.R. 8316).  At the same time, as Chairman Henry pointed out, the licenses of WBAI and the other Pacifica stations had been deferred for 3 years pending FCC investigation of "programming" complaints sent to the Commission.  Although the case was well-known throughout the industry, and a real danger existed that a broadcaster would lose its license because of the political,  [*219]  economic, or ideological content of its programs, not one commercial broadcaster came to Pacifica's defense.  "Where," asked Chairman Henry, were the "State association delegations * * * letters * * * lawyers and their amicus briefs * * * and ringing speeches?" For, he reported, "not one commercial broadcaster felt obliged to make his views known to the Federal Communications Commission."

As if this ignominious silence by commercial broadcasters in the face of threats to "pure" first amendment speech were not enough, certain "spokesmen" for the broadcasting industry have actually taken the lead in attempting to silence the Pacifica stations!  The license renewal of KPFK, the Pacifica station in Los Angeles, was until just recently delayed while the Commission investigated a programming complaint brought to its attention by none other than Broadcasting magazine -- a vocal and strident industry trade paper that editorializes self-righteously about first amendment freedoms whenever its industry's profits appear threatened.


Recently, Broadcasting magazine has gone so far as affirmatively to recommend in its editorials that the constitutional protections of speech not be extended to WBAI in the present controversy -- arguments it felt no compunction about bringing to the Commission's attention while the case was pending.  It hinted in a lead editorial (Feb. 10, 1969, p. 88) that the comments expressed over Mr. Lester's program on WBAI were an "invitation, if not incitement to riot," suggested that Mr. Lester's broadcast was "open to attack on grounds of social, moral, and professional irresponsibility," and concluded "that a case can be made for the proposition that WBAI may have taken itself beyond the limits of constitutional protection." On the same page, it decried the FCC proposal to prohibit the broadcast of cigarette commercials.  The lesson to be drawn from this performance is clear: If the individual citizen wishes to protect his first amendment freedom of speech over the broadcast media, he would be well advised not to look for support to the broadcasting industry.  He may find to his unhappy surprise that the industry has taken up firm positions in the enemy camp and is far more interested in censoring from the public air those views it finds economically or personally distasteful.


One does not have to reach back even a few years to find examples of the broadcaster's dedication to free-speech-for-profitable-speech-only.  At the National Association of Broadcaster's Convention in March 1969, two issues seemed to predominate: Senator Pastore's concern over what he views to be excessive violence and sex in television programming, and recent Commission decisions which refused to renew automatically the valuable broadcast licenses of several major market stations pending investigation into their concentrations of economic control in their markets.  Variety, March 26, 1969, page 74, pessimistically reported that "[the] industry's decision to accept censorship in exchange for security has been apparent at practically every management event." Faced by threats to their programming and their profits, the broadcasting industry is apparently seriously considering  [*220]  sacrificing the former to obtain the latter.  As Variety concludes:


[Most broadcasters] appear eager to give Pastore his way to get him off the subject and on to the business of pushing legislation that would secure their licenses, as his end of an unspoken (but strongly hinted at) bargain.  * * *

* * *

It has been made clear here, in a number of ways, that the ordinary broadcaster -- the publisher of the airwaves -- is willing to surrender still more of his first amendment freedom for the promise of a perpetual license to do business.

At gunpoint, and given the choice of "your money or your life," the ordinary citizen promptly yields up his money.  Not so the broadcaster.  n5


n5 The network's precipitous reaction to the last (censored and never televised) "Smothers Brothers Show" lends some credence to this interpretation.  One sequence, borrowing a personality and format from another network's fast-moving comedy show, "Rowan and Martin's Laugh In," was described as follows:


"Network officials claimed they balked at a religious parody by comedian David Steinberg as unfit for Easter showing, but the Steinberg segment was one of the mildest things on the show.


"More unsettling to weak executive stomachs might have been the jabs at Pastore and devastating parody on race relations involving Tom Smothers and singer Nancy Wilson."


Here's a sampling:


"Tom and guest Dan Rowan discussing candidates for Laugh-In's 'Flying Fickle Finger' award to Pastore, whom, he says.  'was watching a Merv Griffin show and saw a French actress with a low-cut gown.  He says this sort of thing shouldn't be on television.'


"Rowan: 'C'mon.  He might have been frightened as a boy by a woman in a low-cut gown.'


"Rowan then calls President Nixon for advice: 'I wanted to ask you about Sen. Pastore * * * P-a-s-t-o-r-e * * * Rhode Island, yes.'


"A call to the Senate gets the same result.  Finally, Rowan says, 'Sen. Pastore, whoever you are, keep up the good work.'"


The Washington Post, Apr. 8, 1969, p. B-1.  Although the sketch does not represent my own views of the merits (nor, I am sure, Senator Pastore would find it an amusing spoof.  The sketch is unfair to him, but satire is often unfair.  I know that he holds a deep commitment to the first amendment protections that make such comments possible, and would never dream, for example, of removing the program before airtime because of its content.  Yet this is precisely what the network has done.  The true insult lies in the network's implied judgment of his response to the piece, not the Smothers Brothers' desire to use it.  I have often heard announcers on WBAI take a humorous poke at the FCC -- as have Rowan and Martin. 


It would never even occur to anyone at the Commission to want to prevent their making such comments, or to punish them afterwards for doing so.  Such action would be an intolerable and unconstitutional "prior restraint" on artistic freedom.  Yet while the Government will not so censor, apparently the networks will.  The irreparable damage to the public is the same.  The stifling weight of censorship is to be found, not in the hearing rooms of the Federal Communications Commission, but in the conference rooms of this Nation's large television networks.


(Variety, Mar. 26, 1969, p. 74.) Presumably as part of this battle, the television information office of the National Association of Broadcasters is currently spending thousands of dollars a week for full page advertisements in leading national newspapers and magazines to promote its version of the "freedom of the press." (See, e.g., the Washington Post, Mar. 24, 1969, p. A-17.) Yet to my knowledge, not 1 cent has been expended to assist WBAI in defending its noncommercial speech before this Commission.


As Chairman Henry told the National Association of Broadcasters in his 1964 speech:


[When] you display more interest in defending your freedom to suffocate the public with commercials than in upholding your freedom to provide provocative variety -- when you cry "censorship," and call for faith in the founding fathers' wisdom only to protect your balance sheet * * *, you tarnish the ideals enshrined in the Constitution * * *.


Today the Commission has, without a single dissent, upheld WBAI's right to broadcast speech which is clearly protected by the first amendment.  Yet self-proclaimed spokesmen for the broadcasting industry  [*221]  itself have argued that WBAI's programming may not be "defensible even on constitutional grounds." (Broadcasting, Feb. 10, 1969, p. 88.) Surely it is becoming rapidly clear to individual citizens that they, and not the broadcast industry, must wage the fight for free speech in the broadcast media.  If truly free speech is to flourish in broadcasting, and if individual citizens are to be given rights of access to the media to exercise their first amendment freedoms to any meaningful extent, then it is apparent to all that the public must seek its first amendment champions among other than industry spokesmen.  At least one commentator has resignedly reached this rather disheartening conclusion:


[Broadcasters] actually look to the first amendment as a guarantee of economic rather than civil rights.  When a potential financial interest is at stake, however, they are quick to raise the free speech standard, portraying themselves as earnest educators of the public and the Commission as a bureaucratic and malicious censor * * *.  Unfortunately, mercenary self-censorship [by the broadcasting industry] has led to an abdication of that responsibility.  When the private sector turns censor, it is time to trust the public.


Note, "The Federal Communications Commission's Fairness Regulations," 54 Cornell L. Rev. 294, 297, 305 (1969). (Italic supplied.) Julius Lester aptly summed it all up (Evergreen, Apr. 1969, p. 76) when he said: "[We're] asking, where are those people who understand, why aren't they saying something?"


The Commission's decision to take no further action regarding the WBAI complaints is a strong reaffirmation of the principle that all facts, opinions, and insights, however distasteful to some, must be brought to the public's attention before social problems can be adequately resolved.  If anti-Semitic sentiments exist among portions of New York's population, then no valid social purpose can be served by suppression of this important fact.  John Stuart Mill said it well many years ago:


If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.  Mill, "On Liberty and Other Essays" 20 (Neff ed. 1926).


I support the Commission's disposition of the WBAI complaints, and hope that this statement may add to an understanding of the threats of censorship in our country today, the position of the FCC, and the significance of this decision.


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