LEXSEE 24 F

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In Re Complaint by DOROTHY HEALEY, LOS ANGELES, CALIF. Concerning Fairness Ruling Re Station KTTV-TV,

Los Angeles, Calif.

FEDERAL COMMUNICATIONS COMMISSION

24 F.C.C.2d 487

RELEASE-NUMBER: FCC 70-658

JUNE 24, 1970

OPINION:

[*487] Mrs. DOROTHY HEALEY, Los Angeles, Calif.

DEAR MRS. HEALEY: This is in reply to your letter of complaint dated March 26, 1969, against Metromedia, Inc., the licensee of Station KTTV-TV, Los Angeles, California. You allege that on February 17, 1969, Station KTTV-TV broadcast some comments by a newsman, George Putnam, during a news program which attacked your "honesty, character, integrity, or like personal qualities" within the meaning of Section 73.679(a) of the Commission's Rules, and that the station has violated this rule by rejecting your request for an opportunity to respond. The comments were directed to a front-page article on you in the Los Angeles Times, of February 16, 1969, entitled "Patriot-Marxist -- No. 1 Red Finds That U.S. Isn't All Bad."

The Times article, after noting that you are "a Marxist, a Communist, and an atheist," states that "in some ways Dorothy Healey might be considered an exemplary American and a good member of the bourgeoisie;" that "at 54, she runs her home, pays her taxes, cares for her aged mother, dotes on her scholarly son and generally likes folks, young and old; and that she professes a sincere patriotism and for years, while her [**2] son was in school, rarely missed a meeting of the PTA." The article further states that "she has been investigated, prosecuted and persecuted"; that "her house, she says, is bugged, her phone tapped and her mail examined"; and that, according to her, in case after case, the parents of young people who come to her "... are visited and threatened with the loss of their jobs if their children come back any more to see me."

Roughly, half of Mr. Putnam's commentary consisted of reciting the Times article, including all of the foregoing. The other portion of the commentary reflected Mr. Putnam's vigorous and complete disagreement with the Times' story and its use of the term "Patriot" in relation to you. Mr. Putnam states, after reciting Communist horrors and your expressed desire to see the American economic system overthrown, that the article is "an insult to American patriotism," and that Mrs. Healey while "she may be the Los Angeles Times' kind of patriot... sure as hell is not [his]." The commentary also states that the visitor intimidation allegation is an "unsubstantiated charge" concerning [*488] an activity which "* * * just doesn't happen in the United States of America."

The licensee [**3] asserts that Mr. Putnam's statements concerning you do not constitute personal attack; that the Putnam commentary comes within the exemption of the personal attack doctrine in that it was made during the course of a news broadcast; that, as a Communist, you do not have the right to time to reply, citing Tri-State Broadcasting Co., Inc., 40 FCC 508 (1962), and Storer Broadcasting Co. (DuBois Clubs), 11 FCC 2d 678 (1968); and finally that the personal attack doctrine does not apply because the commentary was not made "during the discussion of a controversial issue of public importance."

Complainant, on the other hand, argues that personal attack was made by implication; that commentary, although given during a news broadcast, was an "editorial portion thereof involving the statement of opinions;" that the role played by you as a Communist is a matter of a "controversial nature and of public importance" (e.g., alleged lack of patriotism, absence of integrity), and that the Tri-State Broadcasting Co., Inc. case is inapplicable because here an individual communist was attacked.

First, it is clear that the personal attack rules are in any event inapplicable. The rules specifically exempt [**4] from their scope commentary which is part of a bona fide newscast. That is the situation here.

The matter thus turns on the applicability of the fairness doctrine to Mr. Putnam's commentary. Under established policy (see Report and Order 12 FCC 2d 250, 252-3, par. 5 (1968)), the licensee itself may present the contrasting viewpoint. For example, a licensee which had reasonably discussed both sides of an issue in its programming, could add a short editorial stating its viewpoint on the issue, without being required to extend opportunities for discussion.

With this as background, we turn to the facts of this case. First, we note the licensee's judgment that the matter which you claim to be a controversial issue of public importance -- the role played by you as a Communist -- is not an issue of public importance in its area. In this connection, we have considered a second factor -- that Mr. Putnam devoted considerable time in his commentary to reciting your views as expressed in the Times article (i.e., nine out of 19 paragraphs in his commentary). We wish to make clear that we do not believe that fairness can be achieved by relying upon the person making the criticism or attack [**5] to present the other side. See Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, m. 18, quoting J. S. Mill, On Liberty 32. If this were the sole issue in the case, we would not therefore accord it decisional significance. However, here it is not the sole issue. We believe that we can take the above noted factor into account in evaluating the need for action in this case, and specifically, whether we should find unreasonable the licensee's judgment as to the public significance of your role as a Communist, in circumstances where your views have been put before the public to a significant extent. The combined force of these considerations (i.e., the showing (or lack thereof) before us on controversial issues of public importance; the devotion of significant time to setting forth your views, indeed to an [*489] unusual extent in this kind of critical commentary) leads us to conclude that no further action is warranted. Under a standard of reasonableness, a case such as this should, we believe, be resolved in the licensee's favor. We stress that the matter is one of applying the standard of reasonableness to the facts of the case -- and not what the complainant, or the Commission, or [**6] some other entity might have done or preferred in the exercise of their discretion.

Accordingly, your request is denied.

Commissioner Bartley concurring in the result; Commissioners Cox and Johnson dissenting and issuing separate statements.

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

DISSENTBY: COX; JOHNSON

DISSENT:

DISSENTING STATEMENT OF COMMISSIONER KENNETH A. COX

I cannot agree either with the majority's result or the very brief and inadequate rationale they have advanced to justify it. I therefore dissent.

I agree that the personal attack rules do not apply here because the attack complained of took place during a newscast, which brings it within an express exemption to the rules. However, when we added the exemptions, we made it clear that the basic fairness doctrine applies to personal attacks in newscasts and other exempt programs. See 12 FCC 2d 250 at 252-253 and Note to the revised rule. So KTTV should permit Mrs. Healey to respond to Mr. Putnam's comments if the latter constituted an attack upon her "honesty, character, integrity or like personal qualities" and if they were made "during the presentation of views on a controversial issue of public importance."

The [**7] majority tacitly concede that what Mr. Putnam said constituted a personal attack upon Mrs. Healey. Indeed, it is clear that he charged her with being unpatriotic and with lying in claiming that parents of young people who have visited her are visited and threatened with the loss of their jobs if their children continue their visits. These are obviously attacks upon her character.

The only remaining question is whether the attack was made in the course of presenting a controversial issue of public importance. The majority do not rule that it was not. They recite the licensee's claim that the commentary was not made during the discussion of a controversial issue, but do not find that contention to be valid. Instead, they quickly turn to a "second factor -- that Mr. Putnam devoted considerable time in his commentary to reciting... [Mrs. Healey's]... views as expressed in the Times article." Of course, they immediately go on to say that they "do not believe that fairness can be achieved by relying upon the person making the criticism or attack to present the other side." I agree with that, and with their further statement that if this were the sole issue it would not be of decisional [**8] significance.

At this point it seems clear to me that logic and justice require them to return to the disputed question of whether the attack took place in a controversial issue setting, thus giving rise to a right of [*490] reply. But they never face that issue. Instead they say, without explanation or citation of authority, that they can take "the above noted factor" -- that is, that Mr. Putnam recited Mrs. Healey's views -- into account in evaluating the "need for action in this case." I know of no other personal attack case in which we have ever talked of the "need for action." Rather, we have simply taken the facts and ruled whether the words spoken amounted to an attack and whether they were uttered in connection with a controversial issue. If these questions are answered in the affirmative, then the fairness doctrine holds that there is, indeed, a "need" to redress the situation so that the public can hear both sides of the dispute. But the majority are resolutely determined not to proceed in the normal way and in accordance with our precedents because they do not like the result which such a course dictates.

So they press ahead, stating that this "factor" -- though not itself [**9] decisionally significant -- can be used in some mysterious way to decide whether to question the licensee's judgment as to the public significance of Mrs. Healey's role as a Communist. Mr. Putnam's recital could not achieve fairness, and I fail to see that it has any relevance to the question of whether he was engaged in discussing a controversial issue. Indeed, the majority do not really use it to decide that question. They simply restate this whole fuzzy concept once more, as follows:

The combined force of these considerations (i.e., the showing (or lack thereof) before us on controversial issues of public importance; the devotion of significant time to setting forth * * * [Mrs. Healey's] * * * views, indeed to an unusual extent in this kind of critical commentary) leads us to conclude that no further action is warranted. Under a standard of reasonableness, a case such as this should, we believe, be resolved in the licensee's favor.

I think this is sheer obfuscation. What is the "showing (or lack thereof)" on the question of whether a controversial issue was involved here? The majority never say. Why does the fact that significant time was devoted to Mrs. Healey's views [**10] -- simply so Mr. Putnam could criticize and ridicule them, which the majority say is not, by itself, of decisional importance -- even when added to the licensee's mere claim that no controversial issue was presented, lead to a decision to take no action? It is not even remotely clear to me, and the majority offer no explanation. This all seems to me like prestidigitation -- now you see it, now you don't -- rather than a proper statement of the grounds for agency action. Or to use another metaphor, the majority add zero to zero and get infinity.

I think all of this is intended to obscure the fact that Mr. Putnam's attack was in connection with two controversial issues of public importance. First, there was controversy over the question of whether a Communist can, at the same time, be a patriotic American. Second, there was controversy over the claim that Mrs. Healey had been subjected to surveillance and that parents of young people who visited her were threatened with loss of their jobs. That there issues were of public importance is evidenced by the fact that the Los Angeles Times devoted a front page story to these matters which occupied eight single spaced typed pages in [**11] the item presented to the Commission. It is further demonstrated by the fact that Mr. Putnam, the following evening, spent substantial time disputing the viewpoint of the Times' [*491] story and ridiculing and attacking Mrs. Healey. A typed transcript of his comments runs to two an a half single spaced pages. n1 It seems only reasonable to assume that these two major media of communications in our second largest city would not devote so much attention to these issues if they were not of importance in the community. And I think most people would agree that these questions are intrinsically as important as many others which we have found to call for application of the fairness doctrine. So on the critical question of whether or not Mr. Putnam's attacks took place in the context of a significant controversial issue, I think the answer must be in the affirmative. I certainly find no persuasive justification for a contrary view in the majority's opinion.

n1 It is clear that a good deal of Mr. Putnam's animosity was directed toward the Times. However, I don't think Mrs. Healey should be injured in this cross-fire and left without recourse, nor should the audience of KTTV be left with only one side of the controversy. [**12]

The licensee cites Tri-State Broadcasting Co., Inc., 40 FCC 508 (1962) and Storer Broadcasting Co., 11 FCC 2d 678 for the proposition that Mrs. Healey, as a Communist, does not have a right to time for reply. The Storer case is clearly not in point -- in fact, we ruled that an organization charged with being under Communist dominance did have a right of reply. The Tri-State case is somewhat ambiguous, containing a sentence which reads: "As you know, it was not and is not the intention of the Commission that you make time available to communists or the communist viewpoint." However, I was the Chief of the Broadcast Bureau when the letter to Tri-State was written and recall the matter clearly. We had received a complaint -- one of a number involving the same kind of situation -- that the station had broadcast a half-hour film entitled "Communist Encirclement -- 1961" which was alleged to be a vehicle for "ultra-rightist dogma." The Commission reviewed a transcript of the program and said:

It appears that the program contained a discussion of the following matters, among others: socialistic forms of government were viewed as a transitory form of government which lead eventually [**13] to communism; that this country's continuing foreign policy in the Far East and Latin America, the San Francisco student riots, the alleged infiltration of our government by communists and the alleged moral weakening in our homes, schools and churches have all contributed to the alleged advance of international communism. We are of the view that these matters raise controversial issues of public importance.

When queried about the matter, the station -- like others which had presented similar programs -- responded that it regarded the film as anti-communist and that it did not believe the Commission wanted it to put Communists on in reply. However, there was no suggestion that the complainants in cases of this kind were Communists -- they simply disagreed with the version of recent history reflected in films of this kind and with the conclusions drawn there from as to the policies the United States should pursue. It was in this context that the Commission wrote the sentence first quoted above, then going on to say:

You will recognize, however, that there are varying views existent with respect to the most effective and proper method of combating Communism and Communist infiltration [**14] and that broadcasts of proposals supporting one method raise the question whether reasonable opportunity has been afforded for the expression on the station of opposing viewpoints.

[*492] Thus, the Commission was simply saying that there was no obligation to make time available for the Communist viewpoint in that case. It was not announcing a general policy that Communists can never have a right to present their point of view under any circumstances. Indeed, I think any policy which barred them from responding to personal attacks would violate the First Amendment. While in many communities -- and on many issues -- there may not be a significant Communist viewpoint entitled to air time under the Fairness Doctrine, there may be situations in which the public should hear that point of view along with those of other significant elements in the community. But I think the situation is different when a licensee directly attacks individual Communists, and I believe that the public should hear Mrs. Healey's side of the controversy over whether she, as a Communist, can also be a patriotic American and whether she and her visitors have been subjected to surveillance. n2 The majority do not appear [**15] to rely on the Tri-State case here.

n2 It should be made clear that, if given time, Mrs. Healey should confine herself to the attacks against her by Mr. Putnam and would not be allowed simply to espouse communism. The licensee can reasonably insist that any response deal with the specific issues raised -- the redeeming "patriotic" qualities of a Communist such as Mrs. Healey and the alleged surveillance treatment accorded such people. Radio Albany, Inc. (WALG), 40 FCC 632 (1965); Storer Broadcasting Co., supra.

I am at something of a loss to understand the majority's viewpoint. Certainly their letter does not clearly state a basis for their result in anything like the way we normally handle such matters. I think that they have arbitrarily departed from our usual policies simply because of the identity of the complainant. They do not like Communists and recoil from the prospect of ruling that a station should be required to provide time for one. I certainly have no desire to see the airwaves flooded with Communist propaganda, but I think the whole Fairness Doctrine may be imperiled if we do not administer it with complete evenhandedness. Heretofore, we have been at pains [**16] to make clear that our fairness policies apply to both extremes of the political spectrum. Compare Storer Broadcasting Co., supra, with John Birch Society Complaint, 11 FCC 2d 790. See, also, Capitol Broadcasting Company, Inc., 40 FCC 615 and compare Mid-Florida Television Corporation, 40 FCC 620, 631. If we do not continue this course, I think the courts will question our competency to enforce the vital requirement that broadcast facilities be used as means for providing the American public with information on both sides of controversial issues of public importance. Metromedia deliberately permitted use of KTTV for an attack upon Mrs. Healey's character in the context of such public controversy. It thereby incurred obligations under the Fairness Doctrine which should be enforced, in accordance with our precedents, even though she is a Communist.

I therefore dissent and an attaching (as Appendix A) a form of letter which I think should have been dispatched to the licensee.

[*495] DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

In its continuing battle against an "overdose of tolerance," n1 this Commission has shown a marked disinclination to extent the protection of the Fairness [**17] Doctrine to "unpopular" causes. n2 The Communist Party is a leading example of a group which the Commission has singled out as particularly undeserving of the right to verbal self-defense.

n1 Storer Broadcasting Co. (DuBois Club), 11 F.C.C. 2d 678, 681 (1968) (Commissioner Robert E. Lee, dissenting).

n2 For a recent example, see Letter to Mr. Donald A. Jelinek, FCC 70-595 (released June 4, 1970).

In 1962 the Commission found that allegations of communist "infiltration" of government, churches, homes and schools did "raise controversial issues of public importance" -- but hastened to assure the public that the Commission certainly did not intend to "make time available to communists of the communist viewpoint." n3 In 1968, however, we held that while Communists could not invoke the Fairness Doctrine, groups accused of being communist could -- presumably because the seriousness of the allegation entitled the maligned group to "clear its name." n4 Today we hold that broadcasters may accuse named individuals of lying and other "unpatriotic"behavior -- so long as those individuals are members of the Communist Party -- and that the persons attacked have no right of reply. This [**18] is discrimination inconsistent with the Fairness Doctrine and the Constitution.

n3 Tri-State Broadcasting Co., Inc., 40 F.C.C. 508, 3 P & F Radio Reg. 2d 175 (1962).

n4 Storer Broadcasting Co. (DuBois Club), 11 F.C.C. 2d 678 (1968).

I dissent.

On February 16, 1969, the Los Angeles Times published a front-page feature article on Mrs. Dorothy Healey, long-time Chairman of the Southern California branch of the Communist Party. The following day, television station KTTV-TV in Los Angeles broadcast what can only be described as a vicious attack on the character, motives and actions of Mr. Healey. The full flavor and implication of this "commentary" can only be obtained by reading the text in its entirety. (See Appendix.) Pertinent excerpts from Mr. Putnam's monologue, however, follow:

Now listen, if you will, to just a portion of what the LOS ANGELES TIMES has to say about their front page patriot, Dorothy Healey. "In some ways," says the TIMES, "Dorothy Healey might be considered an exemplary American -- she owns her home, pays her taxes, cares for her aged mother, dotes on her scholarly son. She professes a sincere patriotism, and she rarely missed a meeting of the P.T.A." [**19]

* * *

Mrs. Healey tells of the night she heard the report read concerning Joseph Stalin's horrors. The report released by Nikita Khruchchev. And Mrs. Healey tells the TIMES that she sobbed all night long. She just never believed those stories.

One can't help but wonder if she might have lost another night's sleep had Khrushchev told us of his own extermination of millions of Ukranians by systematic starvation. Wonder if she ever heard about that?

* * *

Well, in that lengthy and boring TIMES story she tells of her home and her office being bugged -- of telling her visitors never to mention their names when they visit her. Actually, Mrs. Healey should be right at home with such tactics -- because they're all too commonplace among the Communists.

* * *

[*496] Mrs. Healey makes the following unsubstantiated charge -- a charge it is doubtful even she believes -- but the LOS ANGELES TIMES publishes it at face value. She says, and I quote, "In case after case, the parents of young people who have visited her are visited and threatened with the loss of their jobs if their children come back any more to see her." Come, come, now Dorothy -- perhaps under Communism -- perhaps under [**20] the Nazis -- but it just doesn't happen in the United States of America.

* * *

Dorothy Healey may be the LOS ANGELES TIMES' kind of exemplary American, who professes sincere patriotism -- she may be the LOS ANGELES TIMES' kind of patriot -- but she sure as hell is not mine. And, my fellow Americans, I trust she is not yours. n5

n5 This attack is virtually identical to, if not substantially worse than, the one made on Fred J. Cook by the Reverend Billy James Hargis -- which formed the basis for the Supreme Court's affirmation of the Commission's Fairness Doctrine. For pertinent textural portions of the Hargis attack, see Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 371 n. 2 (1969). I cannot distinguish the Hargis attack from the present one -- except by observing that Cook was not a member of the communist party, whereas Mrs. Healey is. The principle that emerges is a disquieting one: the Fairness Doctrine permits non-communists to argue that they are not communists, see Storer Broadcasting Co. (DuBois Club), 11 F.C.C. 2d 678 (1968), and cf. Red Lion, supra, but it does not permit communists to argue that they are not undesirable or dangerous people, see Tri-State Broadcasting Co., Inc., 40 F.C.C. 503, 3 P & F Radio Reg. 2d 175 (1962), and the instant case. Yet presumably the justification for permitting the argument that one is not a communist is precisely that communists (as a group) are undesirable or dangerous people. [**21]

Mrs. Healey filed a Fairness Doctrine complaint approximately one month later, March 26, 1969, stating that the licensee had refused to grant her time to reply to Mr. Putnam's attack, and asking the Commission for relief. Now, one and a half years later, we deny that relief.

In its decision, the Commission majority makes two arguments: first, that the role played by Mrs. Healey as a Communist is not a controversial issue of public importance; and second, that Mr. Putnam to some extent presented Mrs. Healey's viewpoint (and therefore lessened KTTV-TV's Fairness Doctrine obligation) by quoting favorable portions from the Los Angeles Times article. Both these arguments are faulty.

The portions of Mr. Putnam's remarks set out in the text raise at least two issues of fundamental public importance and controversy. The first is whether mere membership in a particular organization, such as the Communist Party, is sufficient to justify the inference that the person in question therefore possesses an undesirable character. Thus, Mr. Putnam indicates that Mrs. Healey is a member of the Communist Party, and because of that: (1) she is a lair [who makes "unsubstantiated charges"]; (2) [**22] she is guilty of hypocrisy and deceit [e.g., attending P.T.A. meetings under the guise of concern for her son]; (3) she is callous and cruel [failing to lose sleep over Khruschev's "extermination of millions"]; (4) she is implicated in illegal conduct [bugging, wire-tapping, etc.]; and (5) she is generally not a "patriot." The important point to note is not just that the remarks comprise a personal attack on the honesty, character, integrity or like personal qualities of Mrs. Healey, an identified individual. Rather, the remarks attack Mrs. Healey because of qualities that presumably adhere to all members of her organization. There is a word for this technique, land that is "guilt by association." Thus, Mr. Putnam accuses Mrs. Healey of close familiarity with tactics of illegal eavesdropping [*497] or "bugging" by saying: "Actually, Mrs. Healey should be right at home with such tactics -- because they're all too commonplace among the Communists." (Emphasis added.) And later: "Come, come, now Dorothy -- perhaps under Communism -- perhaps under the Nazis -- but it just doesn't happen in the United States of America." (Emphasis added.)

There is little question that individual character guilt [**23] imputed from mere association with the Communist Party has been one of the most controversial issues our country has ever faced. The McCarthy purges in the 1950's pilloried thousands of schoolteachers, ministers, labor union leaders, screen writers, government officials, and members of the military, not for what they had done (in most case they had done nothing and were in all other respects exemplary citizens), but for what they had joined. Unfortunately, the scars of that dreadful era have by no means healed. One need only consult the daily newspapers to find teachers being dismissed because of Communist Party affiliation. See New York Times, June 20, 1970, p. C-59, cols. 1-4 (Professor Angela Davis, University of California at Los Angeles).

Supreme Court decisions during the past twenty years provide perhaps the clearest evidence that the consequences of mere Communist Party affiliation are, indeed, a "controversial issue of public importance." In a famous line of cases, the Court has ruled that persons cannot be disqualified from employment or subjected to other forms of harassment merely because they have at one time been members of the Communist Party. More must be shown [**24] -- namely, that the goals of the organization are illegal; that the individual knew of such goals; that the individual member had the specific intent to further those goals; and (most importantly) that the individual took some action to further those illegal goals. See, e.g., Scales v. United States, 367 U.S. 203 (1961). Dozens of cases, therefore, have established one of our nation's most important principles of individual liberty and association: that the "cherished freedom of association" cannot be abridged by sanctions which punish those "who join an organization but to not share its unlawful purposes and who do not participate in its unlawful activities...." Elfbrandt v. Russell, 384 U.S. 11, 11 (1966). Illegal activity cannot be imputed to a person for mere membership in any particular organization. See, e.g., United States v. Robel, 389 U.S. 258 (1967) (defense plant employees); Keyishian v. Board of Regents, 385 U.S. 589 (1967) (schoolteachers); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957) (attorneys); see generally, Scales v. United States, 367 U.S. 203 (1961).

The point is simply this. Mr. Putnam's commentary impugned the motives, conduct, integrity and [**25] patriotism of a named individual, Mrs. Dorothy Healey, because she was a member of the Communist Party. In so doing he raised one of the most serious issues our nation has had to face: whether society should heap disapprobation upon individuals merely because they are associated with various unpopular organizations. Can a Communist Party member, such as Mrs. Healey, have the "redeeming" social qualities of patriotism, honesty, integrity and compassion for other human beings to which the Los Angeles Times referred? Mr. Putnam and KTTV-TV apparently feel [*498] such a member cannot. I believe, at least, that a right of reply is invoked.

A second issue of controversy and public importance raised by Mr. Putnam's broadcast is how the Government treats Communists, such as Mrs. Healey. In his commentary Mr. Putnam hotly denied the charge by Mrs. Healey that "[in] case after case, the parents of young people who have visisted her are visited and threatened with the loss of their jobs if their children come back any more to see her." "Come, come, now Dorothy," he said, "perhaps under Communism -- perhaps under the Nazis -- but it just doesn't happen in the United States of America." Equal contempt [**26] was shown against her allegations of phone tapping and mail examination.

Again, I do not believe it is possible to argue that Government surveillance and treatment of minority and unpopular political parties in this country is not an issue of great controversy and public importance. One need only consult the daily newspaper to find repeated instances of such government misconduct. See, e.g., The Washington Post, July 9, 1970, p. A-1 (Internal Revenue Service surveillance of public library readers). We know that Congress has authorized law enforcement officials to wiretap private conversation; we know that wiretapping is regularly used by the government to maintain surveillance over certain persons viewed as "nonconformist"; and we know there is extreme public controversy over privacy of communications -- certainly an issue of great public importance.

To argue, therefore, as does the majority, that Mr. Putnam's commentary did not raise issues of controversy and public importance is simply to define such issues out of existence. n6 The issues involved here are not merely "the role played by [Mrs. Healey]... as a Communist," as the majority contends. It is almost precisely the [**27] converse: the role played by Communists in general, as exemplified by the alleged activities of one person, and the treatment such persons receive as a group at the hands of our government.

n6 A procedure at which the Commission is becoming increasingly expert. See Letter to Mr. Donald A. Helinek, FCC 70-595 (released June 4, 1970) (dissenting opinion).

The Commission also argues that a "second factor" is, in some obscure way, influential to its decision. Because Mr. Putnam supposedly "devoted considerable time" in his commentary to reciting Mrs. Healey's views, the majority feels that the need to grant Mrs. Healey the protection of the Fairness Doctrine is lessened. Yet this argument does no more than bootstrap the majority out of one untenable position into another. Unwilling to establish this position as a separate and independent ground against Mrs. Healey, and unable seriously to contend that the broadcast did not raise controversial issues of public importance (the majority devotes one-half of one sentence to this contention, merely stating its argument as its conclusion), the majority somehow attempts to alchemize two untenable positions into a valid or even plausible [**28] one. Its uneasy amalgam fails.

Although the Los Angeles Times devoted hundreds of column inches to the Healey story -- the longest story in the Times' entire Sunday edition -- Mr. Putnam quoted no more than eight sentences from it, and devoted more than seven times that attention to his own view. Of [*499] even greater significance, however, is the manner in which he presented his commentary -- beginning with three paragraphs of inflammatory rhetoric ("if I were a young lad back from Vietnam, lying in one of our Veterans' hospitals -- a leg gone -- an arm missing -- blind or faceless -- from the horrors of that war..., I would be shocked into rage by the story that appeared... in the Los Angeles Times...," etc.), and then quoting (out of context) only those portions of the story most adverse to Mrs. Healey.

The Commission should not negate the Fairness Doctrine whenever the speaker presents the opposing view as only a stalking horse for attack. Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 392 n. 18 (1969). The fairness doctrine is not met by any licensee who says, "John Smith claims he's not a crook, but let me tell you why he is" -- and then proceeds to attack the honesty [**29] and integrity of Smith. As we said in our Report on Editorializing by Broadcast Licensee, 13 F.C.C. 1246, 1253 (1949), the licensee may not "'stack the cards' by a deliberate selection of spokesmen for opposing points of view to favor one viewpoints at the expense of the other...."

If the majority is unwilling to let its "second" argument stand on its own, it cannot use it to buttress the position that no issue of controversy is involved. Indeed, precisely the opposite may occur: by merely stating the attacked position, the licensee may at least indicate the existence of a controversy, or even create or intensify one.

There is little doubt that Mr. Putnam's commentary constituted a "personal attack" upon Mrs. Healey -- that is, it attacked her "honesty, character, integrity" and "like personal qualities." See 47 C.F.R. 73, 123 (Personal Attack Rules). There is equally little doubt that the attack was made during the discussion of several issues of public importance and controversy. The formal Personal Attack Rules contained in 47 C.F.R. 73.123, however, do not apply to Mr. Putnam's broadcast -- principally because 47 C.F.R. 73.123(b)(3) exempts "commentary or analysis" contained [**30] in "bona fide newscasts." Although we have been given no direct evidence that the commentary in question was contained within a "bona fide newscast," all parties seem to concede this, and therefore I concur in the majority's position that our codified Personal Attack Rules do not protect Mrs. Healey.

However, a Note to 47 C.F.R. 73.123(b)(3) specifically provides that the fairness doctrine nevertheless applies to personal attacks otherwise exempted by Section 73.123(b)(3). We spelled this out quite clearly in our Memorandum Opinion and Order, 12 F.C.C. 2d 250 (1968), adding subsection (b)(3) to section 73.123(b). There we stated that the Fairness Doctrine nevertheless applied to situations exempted from the more technical requirements (notification, transcripts, etc.) of the Personal Attack Doctrine:

As stated, the Fairness Doctrine is applicable to these exempt categories. Under that doctrine, the licensee has an affirmative duty generally to encourage and implement the broadcast of contrasting viewpoints... Under our revision with respect to the exempt categories, the licensee may choose fairly to present the viewpoint of the person or group attacked on the attack facet [**31] of the issue; in that event,... the [fairness] doctrine is satisfied. But if the licensee has not done so or made plans to do so, the affirmative duty referred to above comes into play. And here it obviously is not appropriate for the licensee to make [*500] general offers of time for contrasting viewpoints, either over the air or in other ways in his community. There is a clear and appropriate spokesman to present the other side of the attack issue -- the person or group attacked. Thus, our revision affords the licensee considerable leeway in these news type programs but it still requires that fairness be met, either by the licensee's action of fairly presenting the contrasting viewpoint on the attack issue or by notifying and allowing the person or group attacked a reasonable opportunity to respond. [Emphasis added.]

Memorandum Opinion and Order, 12 F.C.C. 2d 250, 252-53, par. 5 (1968).

According to this clearly enunciated doctrine, the licensee cannot reject Mrs. Healey's request for rebuttal time. Mr. Putnam has placed her "redeeming qualities" or "patriotism" in issue, and it is her statement on the issue of visitor intimidation that Mr. Putnam dispute -- indeed, claims that [**32] Mrs. Healey herself does not believe. The licensee has taken no steps to satisfy its fairness doctrine obligation in this regard. Therefore, Mrs. Healey is the only "clear and appropriate spokesman to present the other side...." The fairness doctrine can be satisfied in no other way.

In sum, the Commission's Personal Attack Rules are merely one "aspect of the fairness doctrine...." Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 373 (1969). Although the Personal Attack Rules were first codified in 1967, the doctrines they embody are of long standing. See Red Lion, supra at 375-79. Prior to the 1968 Personal Attack Rules amendments, see Memorandum Opinion and Order, 12 F.C.C. 2d 250 (1968), therefore, it is clear that Mrs. Healey would have been permitted time to reply to the attack made upon her. Yet those 1968 amendments suspended only the more technical aspects of the Personal Attack Rules -- such as formal notification and proffer of scripts. See 47 C.F.R. 73. 123(a). They did not alter or in any way affect the obligation to offer an attacked person rebuttal time under the long established case law of the fairness doctrine. Given Mrs. Healey's "personal involvement [**33] in the controversy," Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1252 (1949), therefore, Mrs. Healey's response is the only method for satisfying the fairness doctrine. Memorandum Opinion and Order, 12 F.C.C. 2d 250, 252-53, par. 5 (1968); see Letter to Mr. Nicholas Zapple, FCC 70-598, p. 2 (released June 3, 1970). Pursuant to our Memorandum Opinion and Order, 12 F.C.C. 2d 250, 252-53, par. 5 (1968), if the licensee does not itself fairly present the contrasting viewpoint (which KTTV-TV has not done here), it must afford the person attacked (Mrs. Healey) a reasonable opportunity to do so.

Several disturbing aspects of this case remain. One is the Commission's tardiness. Almost a year and a half have passed since Mr. Putnam's broadcast. Yet during that time Mrs. Healey has been unable to obtain even an appeal-able order from this Commission. Even if she should seek and obtain judicial reversal of the Commission's action, her victory would be pyrrhic indeed -- the stale assurance of a few minutes of airtime to rebut charges made at least two years earlier. As Supreme Court Justice Harlan has observed, procedural delays may become so serve that they violate [**34] substantive rights:

It is vital to the operation of democratic government that the citizens have facts and ideas on important issues before them. A delay of even a day or two [*501] may be of crucial importance in some instances. (A Quantity of Books v. Kansas, 378 U.S. 205, 215, 224 (1964) (dissenting opinion).)

[Timing] is of the essence in politics. It is almost impossible to predict the political future; and when an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all... [Applications] must be handled on an expedited basis so that rights of political expression will not be lost in a maze of cumbersome and slow-moving procedures. (Shuttlesworth v. City of Birmingham, 394 U.S. 147, 159, 163 (1969) (concurring opinion).)

In areas vital to the full expression of First Amendment freedoms, such as the Commission's administration of the Fairness Doctrine, our procedures must show "the necessary sensitivity to freedom of expression." See Freedman v. Maryland, 380 U.S. 51, 58 (1965). In this we have clearly failed. n7

n7 In Robinson v. Coopwood, 292 F. Supp. 926 (N.D. Miss. 1968), aff'd per curiam, No. 27,275 (5th Cir., Oct. 22, 1969), for example, a federal court struck down as unconstitutional a municipal ordinance requiring eivil rights demonstrators to give the police one hour's notice before marching on the community's public streets. The Court tought that even a one hour's delay exerted a "stifling effect" on the exercise of First Amendment speech, id. at 930, and that the ordinance acted "as an unconstitutional prior restraint" on such speech. Id. at 932. If a delay of one hour is unconstitutional under certain circumstances, what then of a year and a half's delay? The Commission's unconscionable delays in Fiarness Doctrine matters such as this, together with its apparently discriminatory treatment of petitioners depending on their political views, raises serious question whether petitioners ought to be given the right to circumvent the Commission in Fairness Doctrine matters and proceed directly to federal court for relief, with the licensee and FCC carrying the burden of showing that petitioners ought to be denied access to the licensee's facilities. See Freedman v. Maryland, 380 U.S. 51 (1965). [**35]

A second disturbing aspect of this case is the majority's failure to provide any justification for its view that no controversial issue of public importance was raised by Mr. Putnam's broadcast. I have carefully read the majority's opinion, and so far as I can determine, its total reasoning on this point is contained in the following sentences:

With this as background, we turn to the facts of this case. First, we note the licensee's judgment that the matter which you [Mrs. Healey] claim to be a controversial issue of public importance -- the role played by you as a Communist -- is not an issue of public importance in its area.

This statement is noteworthy on two grounds. First, the majority completely defers to "the licensee's judgment." At no point does the majority indicate even that it has a view on the fundamental issue; it merely "notes" the licensee's judgment and passes on to other considerations. I have elsewhere objected to this defense, and will not repeat my arguments here. See Letter to Mr. Donald A. Jelinek, FCC 70-597, pp. 8-9 (June 4, 1970) (dissenting opinion). Second, the majority has failed entirely to justify its conclusion; it merely states its result [**36] without argumentation. I do not believe the First Amendment can tolerate such a cavalier use of arbitrary power, and suspect the majority's decision is reversible on this ground alone. The Supreme Court has written that "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression...." Freedman v. Maryland, 380 U.S. 51, 58 (1965). The majority's failure to grapple with, much less even enunciate, the issues involved here amply illustrate the truth of that statement.

A third disturbing aspect of this case is its implication that the Commission will not apply the Fairness Doctrine even-handedly, but will deny its benefits to those groups a majority of Commissioners find "subversive." In Storer Broadcasting Co., 11 F.C.C. 2d 678 (1968), Commissioner Robert E. Lee wrote in dissent that the Commission [*502] should not permit the DuBois Club to rebut allegations that it was a communist front organization, stating: "The Fairness Doctrine ends at the international border and I would not take the responsibility of turning the microphone over to those who would advocate the overthrow of the Government by other than the democratic process." [**37] Id. at 681. I believe the results in this case can only be rationalized by an acceptance of Commissioner Lee's position in Storer. See Storer Broadcasting Co., supra; Tri-State Broadcasting Co., Inc., 40 F.C.C. 508, 3 P & F Radio Reg. 2d 175 (1962). I cannot support such a position. If in fact the Commission majority has adopted Commissioner Lee's position, I am left with a profound uneasiness at this Commission's ability to administer the Fairness Doctrine. I believe citizens seeking to exercise their rights of speech over the broadcast spectrum are entitled to far better treatment by their government. I dissent.

APPENDIX:

APPENDIX A

(Preferred Form of Letter)

METROMEDIA, INC., Licensee of Station KTTV, Washington, D.C.

GENTLEMEN: This is in further reference to the complaint of Mrs. Dorothy Healey concerning the comments of Mr. George Putnam on the February 17, 1969 news program, broadcast by station KTTV, Los Angeles, California. The comments were directed to a front-page article on Mrs. Healey in the Los Angeles Times, of February 16, 1969, entitled "Patriot-Marxist -- No. 1 Red Finds That U.S. Isn't All Bad."

The Times article, after noting that Mrs. Healey is "a Marxist, a [**38] Communist, and an atheist," states that "in some ways Dorothy Healey might be considered an exemplary American and a good member of the bourgeoisie;" that "at 54, she runs her home, pays her taxes, cares for her aged mother, does on her scholarly son and generally likes folks, young and old; and that she professes a sincere patriotism and for years, while her son was in school, rarely missed a meeting of the PTA." The article further states that "she has been investigated, prosecuted and persecuted;" that "her house, she says, is bugged, her phone tapped and her mail examined;" and that, according to her, in case after case, the parents of young people who come to her "... are visited and threatened with the loss of their jobs if their children come back any more to see me."

Mr. Putnam's commentary disagrees entirely with the Times' story and its use of the term "Patriot" in relation to Mrs. Healey. Mr. Putnam states, after reciting Communist horrors and Mrs. Healey's expressed desire to see the American economic system overthrown, that the article is "an insult to American patriotism," and that Mrs. Healey, while "she may be the Los Angeles Times' kind of patriot... sure as hell [**39] is not [his]." The commentary also states:

Mrs. Healey makes the following unsubstantiated charge -- a charge it is doubtful even she believes -- but the LOS ANGELES TIMES publishes it at face value. She says, and I quote, "In case after case, the parents of young people who have visited her are visited and threatened with the loss of their jobs if their children come back any more to see her." Come, come now, Dorothy -- perhaps under Communism -- perhaps under the Nazis -- but it just doesn't happen in the United States of America.

The licensee asserts that Mr. Putnam's statements concerning Mrs. Healey do not constitute personal attack; that the Putnam commentary comes within the exemption of the personal attack doctrine in that it was made during the course of a news broadcast; that, as a Communist, Mrs. Healey does not have the right to time to reply, citing Tri-State Broadcasting Co., Inc., 40 FCC 508 (1962), and Storer Broadcasting Co., (DuBois Clubs), 11 FCC 2d 678 (1968); and finally that the personal attack doctrine does not apply because the commentary was not made "during the discussion of a controversial issue of public importance."

Complaint, on the other hand, [**40] argues that personal attack was made by implication; that commentary, although given during a news broadcast, was an "editorial portion thereof involving the statement of opinions;" that the role played by Mrs. Healey as a Communist is a matter of a "controversial nature and of public importance." (e.g., alleged lack of patriotism, absence of integrity), and that the Tri-State Broadcasting Co., Inc. case is inapplicable because here an individual communist was attacked.

First, we hold that the personal attack rules are inapplicable. The rules specifically exempt from their scope commentary which is part of a bona fide newscast. That is the situation here. The issue thus turns on the applicability of the fairness doctrine to Mr. Putnam's commentary.

The Tri-State ruling does not make the fairness doctrine inapplicable to this situation. The thrust of that ruling is that licensees are not acting unreasonably when they made the judgment that reference to Communism, in and of itself, does not create a controversial issue of public importance. When a speaker in a talk or religious program asserts that a totalitarian form of government -- for example, Communism or Fascism or anarchy [**41] -- is bad, there may be small numbers of people who espouse such doctrines. But the existence of such small groups does not mean that one side of an issue of "public importance" (Se. 315(a) 47 USC 315 (a)) has been presented. Cf Letter to L.M.C. Smith, 40 FCC 54 (1963). The letter to Tri-State goes on to hold that an allegedly anti-communist program involved controversial issues as to the best methods of combating communism and that reasonable opportunity should be provided for opposing viewpoints thereon.

But that is the extent of Tri-State ruling. It did not hold that no matter what the facts, a Communist could never be given access to broadcast facilities; that there can never be a personal attack or controversial issue of public importance involving a Communist. With this as background, we turn to the specific facts here.

The Los Angeles Times story does not deal with the issue of Communism per se. It identifies Mrs. Healey as a high, long-time Communist official and then goes on to raise two issues: (1) whether a Communist such as Mrs. Healey can still have other redeeming "patriotic" qualities, such as being a PTA supporter, etc.; (2) how Communists such as Mrs. Healey [**42] are treated (i.e., her allegations of phone tapping, mail examination and intimidation of visitors).

Mr. Putnam, in his broadcast directed to this news story, stated forcefully his position that such a Communist official could not be regarded in any way as "patriotic" or having other "patrictic" qualities and that Mrs. Healey was lying in her allegations concerning such matters as visitor intimidation. It would thus appear that, as a result of the Times' page 1 story and Mr. Putnam's broadcast, issues of public importance have been raised, and that the public should have the opportunity to hear the contrasting viewpoint. The licensee was therefore under an affirmative obligation to encourage and implement the presentation of that viewpoint.

In the circumstances, the licensee cannot properly reject Mrs. Healey on the grounds which it stated. It is her "redeeming qualities" or "patriotism" which Mr. Putnam has put in issue, and it is her statement of the issue as to visitor intimidation, etc., which Mr. Putaum disputes, and indeed claims that Mrs. Healey herself does not believe. On these facts, demonstrating Mrs. Healey's "... personal involvement in the controversy" (Report [**43] on Editorializing by Broadcast Licensees, 13 FCC 1246, 1252 (1949)) Mrs. Healey is clearly the appropriate person to respond (see Report and Order, 12 FCC 2d 250, 252-3, para. 5 (1968)) and cannot be rejected on the grounds that she is a Communist. For, under the cited policy, if the licensee does not itself fairly present the contrasting viewpoint, it must afford the person attacked a reasonable opportunity to do so.

In this connection, we also note that no spokesman for the contrasting viewpoint is here entitled to use the opportunity simply to espouse Communism. As stated, that is not the issue; the controversy between the Los Angeles Times story and Mr. Putnam's broadcast is not concerned with the merits of Communism. The licensee can reasonably insist that any response deal with the specific issues raised -- the redeeming "patriotic" qualities of a Communist such as Mrs. Healey and the alleged nature of the surveillance treatment accorded Communists such as Mrs. Healey. Radio Albany, Inc. (WALG), 40 FCC 632 (1965); Storer Broadcasting Co. (DuBois Clubs), supra. In that connection, we stress, as we have on prior occasions, that the Commission does not and cannot determine [**44] the truth of such issues, and is not indicating any position in that respect. We are not the national arbiter of truth. The Commission's function is simply to insure that in a case such as this, where the licensee has chosen to present one side of an issue of public importance, the public be given the opportunity to hear the other side, and thus be informed, so it -- not a Government agency such as the Commission -- will make whatever judgment is called for.

In view of the foregoing, we find that the licensee has not complied with the requirements of the fairness doctrine. We therefore direct that you respond within 30 days as to what steps you have taken to come into compliance.

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

APPENDIX

PATRIOT-MARXIST

By George Putnam (February 17, 1969)

If I were a soldier or a sailor or a Marine or a young American in the Air Force, serving in Vietnam -- wondering if I would live just one more day -- if I were a young lad back from Vietnam, lying is one of our Veterans' hospitals -- a leg gone -- an arm missing -- blind -- or faceless -- from the horrors of that war -- if I were a father, mother, brother, sister, wife, son, [**45] daughter, or sweetheart -- of one of these young American who have put their all on the line in the battle against world Communism -- if I were one of these, I would be shocked into rage by the story that appeared in the number one column on the number one page of Sunday's LOS ANGELES TIMES.

With this nation of ours confronted by the threat of Communism in Korea, and Vietnam, South America, the Middle East, and throughout all of Europe -- with Communist-inspired and directed youth groups attempting to rip the United States apart -- with American ships being pirated on the high seas -- with American airplanes being hijacked and flown to Communist Cuba -- with known Communists teaching in our state supported campuses -- with the Communists loudly proclaiming the many ways in which they intend to destroy us and our way of life -- with all of this -- the LOS ANGELES chooses to label the Marxist-Communist atheist Dorothy Healey -- as a -- patriot.

The LOS ANGELES TIMES, which chose not to even mention Abraham Lincoln's birthday -- devoted more words to their "patriot-Marxist," Dorothy Healey, in their Sunday edition -- and its voluminous -- than any other news item or topic. Yes, more [**46] space for the Communist Dorothy Healey than the Communist violations of the Tet New Year's observance -- or the Berlin crisis -- or the tinderbox in the Middle East, or any other top news.

Referring to the secretary, and later chairman, of the Communist Party in Southern California, the LOS ANGELES TIMES states, "Dorothy Healey has been scorned, heckled, ostracized, spied on, and locked up. Dorothy Healey has been investigated, persecuted, and prosecuted -- her home bugged -- her phone tapped -- her mail examined."

And the TIMES continues, "She has the face of an amiable barmaid, quick, light hazel eyes and elfin smile, sandy windblown hair gone to gray. She would not be considered chic by fellow ladies of the P.T.A., but she has a disarming charm."

The LOS ANGELES TIMES then quotes [**47] Dorothy Healey as saying of her eighty-four year old mother, Mrs. Mrs. Barbara Nestor, "Mother is a charter member of the Communist Party. She's really a radical."

Dorothy Healey joined the Young Communist League December first, 1928. When she was fifteen, she was pedding the DAILY WORKER. She was arrested on the streets and carried off to a detention home, where she spent most of her time agitating the other kids.

In 1940, she passed a civil service examination and went to work for the state in San Francisco as a deputy labor commissioner. Three days before Pearl Harbor, her Communist activities and associations were brought out by the State Committee on Un-American Activities, and the Governor then called for her resignation.

She became Communist Party secretary in 1945. In 1949, she was sentenced to eighteen months in jail for refusing to answer questions before a United States Grand Jury. That decision, however, was later reversed.

In 1952, Dorothy Healey and several other Party leaders were sentenced to five years in prison and were fined ten thousand dollars each for conspiracy to teach the overthrow of the government by violence. I want to repeat that -- for conspiracy [**48] to teach the overthrow of the government by force. She spent four months in the County jail, until her bail was reduced by the higher court. The Supreme Court later set aside the conviction and the indictment was dismissed.

Mrs. Healey tells of the night she heard the report read concerning Joseph Stalin's horrors. The report released by Nikita Khrushchev. And Mrs. Healey tells the TIMES that she sobbed all night long. The just never believed those stories.

One can't help but wonder if she might have lost another night's sleep had Khrushchev told us of his own extermination of millions of Ukrainians by systematic starvation. Wonder if she ever heard about that?

Mrs. Healey took the Oath of Allegiance and ran for Los Angeles County Assessor in 1966. And she received 87,500 votes. "I want to see the economic system overthrown," says she.

Mrs. Healey makes the following unsubstantiated [**49] charge -- a charge it is doubtful even she believes -- but the LOS ANGELES TIMES publishes it at face value. She says, and I quote, "In case after case, the parents of young people who have visited her are visited and threatened with the loss of their jobs if their children come back any more to see her." Come, come, now Dorothy -- perhaps under Communism -- perhaps under the Nazis -- but it just doesn't happen in the United States of America.

And so it goes -- this long, and as I say, boring tale of the LOS ANGELES TIMES, "Front page patriot." One can only ask -- is the LOS ANGELES TIMES now building up on the Marxist-Communist atheist, Dorothy Healey, for one of the LOS ANGELES TIMES "Women of the Year" awards? To be presented, of course, by that other Dorothy.

And if you are as shocked as I am by this insult to American patriotism, I urge you to let the TIMES hear your voice -- loud and clear.

Four-thirty and ten p.m. news [**50] reports, KTTV, Channel Eleven.