In Re Complaint by CITIZENS
COMMUNICATIONS CENTER, WASHINGTON, D.C.
Concerning Discriminatory
Programming of Station WMAL-TV
FEDERAL
COMMUNICATIONS COMMISSION
25 F.C.C.2d 705
RELEASE-NUMBER: FCC 70-594
JUNE
4, 1970
OPINION:
[*705]
ALBERT H. KRAMER, Esquire, Citizens Communications Center, 1816
Jefferson Place NW., Washington, D.C.
DEAR MR. KRAMER:
This refers to the complaint dated March 13, 1970, which you filed against the
licensee of Station WMAL-TV on behalf of the Back Alley Theatre, Inc.; the
response dated April 10, filed by the licensee, The Evening Star Broadcasting
Company, and to your comment on the response dated May 7.
The complaint
and the accompanying affidavit executed by Mrs. Naomi Eftis, Producing Director
of the Back Alley Theatre, state that a hostess on the WMAL-TV program,
"The Now Woman," invited members of the theater group to videotape an
interview about the theater's forthcoming production, "The Dutchman,"
and to perform a five or six-minute excerpt from the drama for use on the
program; that when Mrs. Eftis, Miss Yahya, the director of the production, and
two members of the cast appeared at the licensee's studios on March 3, 1970, a
preliminary camera run-through was begun; that "The Dutchman" is about
an encounter between a black man and a white woman on a New York subway, and
the scene selected by the theater group for the telecast "requires the
young man to put his arms around the girl, to hold her hand, and to kiss her
lightly several times"; that the actors had not spoken more than a few
lines when Mr. Joseph Browne, director of the program, began shaking his head
and stating that the scene could not be telecast; that when asked why, Mr.
Browne responded to the effect that "the language was bad," and during
the subsequent discussion stated that "You can do this in the theater but
not on TV"; "The scene's too static"; "There's too much
kissing and we have young children watching this show... I have a responsibility to the public for
the morality of this show."
Mrs. Eftis
states that "It was distinctly our impression that the reason the show was
'unsuitable' was because it was a black man kissing a white woman in a very
tender and believable way." The complaint asserts that Mr. Browne's
reasons were inconsistent and that his actual reason was based on racial
discrimination; that since the program was to be shown in midmorning, only
pre-school children would [*706] have been watching, and that, "In any
event, the number of children likely to be watching the 'Now Woman' is no more
or no less than the number likely to be watching the equally suggestive soap
operas or early prime time programs." Complainant, citing the U.S. Supreme
Court decision in the Red Lion case, states that "A licensee cannot censor
a speaker because of the content of his speech. Nor can he censor artistic expression save in the case where it
crosses the line of decency and becomes profane or obscene."
Complainant
states further that in this case the licensee failed to follow its own programming
policies regarding presentation of "suggestive" scenes, that by
refusing to show the scene "WMAL has demonstrated its lack of concern for
a problem intimately touching the lives of many people within its signal
area... has attempted to walk away from a problem that touches inter-racial
relations at the most fundamental level," and "has demonstrated an
insensitivity to the problems of its local community that calls into question
its qualifications as a licensee." Complainant requests that the Commission
not renew the license of WMAL-TV until "it has satisfied itself that the
licensee is in fact in touch with the needs of the community."
In its response,
the licensee states that complainant's charges are based on "half-truths
and conjecture and are wholly lacking in substance"; that the program
hostess who invited the theater group to appear on the program was not familiar
with the play, and the portion in question was chosen by the theater group
itself; that licensee's objections to the scene "stemmed solely from its
sensuous nature"; that Mr. Browne rejected the scene only after hearing
and viewing a longer portion than represented by complainant, which included
"sensuous kisses and caresses, culminating in the placing of Lula's hand
rather high on Clay's thigh"; that the licensee later invited Mrs. Eftis
to review the scene to determine whether changes could be made to make it
appropriate for broadcasting; that she responded that copyright laws would
prevent any change; and that in response to a further invitation to select a
different scene, Mrs. Eftis advised that the presence of profanity throughout
the remainder of the play would prevent such substitution. Licensee states further that members of the
Back Alley Theatre group previously had been guests on a WMAL children's
program when the group was specializing in children's drama, and that WMAL's
recent invitation to the group "stemmed from the fact that WMAL-TV had
become aware that the Back Alley Theatre is now producing adult drama of the type...
described as representative of the black revolutionary movement." Licensee
asserts, finally that it desires "to achieve a resumption of the
cooperative relationship that has existed between our organizations."
The Commission
has carefully considered the complaint and the licensee's response, which
involve fundamental issues regarding a licensee's responsibility to serve the
public interest and the Commission's regulatory authority in programming
matters, and we have concluded that it would not be appropriate for the
Commission to take action in this case.
A licensee is
not a common carrier (Section 3(h) of the Communications Act), and may exercise
his judgment as to the particular program
[*707] matter he will present. The Commission itself is prohibited by
statute from exercising any power of censorship over broadcast matter, and,
with the exception of appearances by legally qualified candidates for public
office and other matter specifically covered by statute (obscenity, indecency,
lottery advertisements, etc.) does not direct its licensees in their selection
of particular program material. The
licensee does not have to present programming material which he believes either
will not serve the needs or interests of his listeners or will not do so as
well as other programming material.
Report and Statement of Policy Re: Programming Inquiry, 20 Pike &
Fischer, Radio Regulations 1902, 25 F.R. 7291. He is thus constantly called
upon to make choices between types of programming, and then, within each type,
to choose the format and content. If
the licensee were deemed to be a common carrier, having to present any matter
brought to him which was not obscene, etc., the result would be not only
chaotic but a wholly different broadcasting system which Congress has not
chosen to adopt.
Although the
licensee has great discretion, that discretion is, of course, limited by the
necessity to act under policies consistent with the public interest. Thus, a serious public interest question
would be presented if in its over-all programming a licensee ignored the needs
of a substantial segment of his community or, for example, arbitrarily refused
to present members of an ethnic group, or their views. Refusal to present members of such a group,
either as such or in integrated situations with members of other groups, would
constitute discrimination in programming.
It is not enough, however, simply to state that a speaker has been
"censored" because a licensee has edited or rejected a particular
piece of program matter. Such exercise
of the licensee's judgment in programming occurs thousands of times a year, as
to which claims could be made that the licensee was serving some improper
purpose of policy. Absent substantial
extrinsic evidence of motives inconsistent with the public interest, the
Commission should not and will not intervene in this continuing program
practice.
We have
conflicting statements from the complainant and the licensee in this case. Thus, the matter turns on the assertions of
the complainant as to what the real motives of WMAL-TV were, as against the
assertions of the licensee as to its motives.
The policy position which we have set out in rulings such as Hunger in
America, 20 FCC 2d 143 (1969) is equally pertinent here. It is simply not appropriate for the
Commission to designate the matter for an evidentiary hearing upon a
credibility (demeanor) finding, whether to credit the statement of motive of
the licensee. Absent extrinsic evidence
going to a policy inconsistent with the public interest (e.g., testimony of a
station employee concerning his instructions from management), the Commission
will not intervene in the programming process of a licensee, and specifically
will not seek to establish the "true" motives by inference or
credibility findings in this sensitive area.
Commission intervention would be inconsistent with the policies and
spirit of the First Amendment and thus with the public interest. Finally, we note that the critical issue
here is whether the licensee has a policy of not presenting material involving
interpersonal relationships between the races, and that on that issue, the
licensee not only denies such a policy,
[*708] but offered "to
review the dialogue and presentation of the scene in question, and suggest
changes which might resolve our controversy without affecting the artistic
content of the scene" (Letter of March 27). In view of this offer and the foregoing considerations, we
believe that there is no basis or need for proceeding further on this
particular matter.
However, while
making clear our intent, absent extrinsic evidence, not to intervene in this
sensitive area of licensee decision, we wish to make equally clear our intent
to determine whether licensees are adequately ascertaining and serving the
needs of their communities. We note
that a petition to deny renewal of the license for WMAL-TV is now pending, and
that the licensee's alleged failure adequately to ascertain and to serve the
needs of its community is one of the grounds for the petition. Thus, the licensee's over-all record in this
area will be considered fully when we take action on the petition.
Commissioners
Cox and Johnson dissenting and issuing the attached
statements.
By direction of
the Commission.
BEN F. WAPLE, Secretary.
DISSENTBY: COX; JOHNSON
DISSENT:
DISSENTING
STATEMENT OF COMMISSIONER KENNETH A. COX
I dissent. I agree that this complaint involves us in
the very sensitive area of a licensee's program judgment. However, the majority agree that the complaint
was one we should have investigated and that if WMAL-TV in fact had a policy
barring the presentation of "material involving interpersonal
relationships between the races," n1
it would violate the public interest standard.
My concern is that our investigation has been inadequate either to
resolve the matter or to demonstrate that the dispute cannot be resolved except
upon the basis of a judgment as to the credibility of conflicting
witnesses. On the one hand we have two
affidavits from Mrs. Naomi Eftis, the Producing Director of the Back Alley
Theatre, who was present when the dramatic excerpt in question was previewed
and rejected by Joe Browne of WMAL's staff.
On the other hand, we have no affidavits from anyone connected with the
licensee who was present when the incident in question took place, but only a
letter to the Commission signed by Richard S. Stakes, WMAL's general manager,
to which is attached a copy of an earlier letter to Mrs. Eftis signed by Andrew
M. Ockershausen, the station's assistant general manager. No statement, sworn or otherwise, has been
submitted from Mr. Browne or Miss Claire Kleess, the hostess of the program in
question, who were the only representatives of the station present at the time
of the incident complained of.
n1 I interpret this circumlocution
as meaning that a licensee cannot have a policy against the broadcast of
program material in which blacks and whites are shown kissing each other.
I agree with the
majority's analysis of the facts of this case as set forth in the first five
paragraphs of their letter. I also
agree with a good deal of their discussion of the policy to be applied to the
case -- particularly its enunciation of what I think is a new concept, that of [*709]
"discrimination in programming." for which some remedial
action is apparently considered appropriate.
But I disagree with the application of our Hunger in America decision --
in which I joined fully -- to the situation involved here. We are not here dealing with the area of
news, which I think is more sensitive than entertainment or general
informational programming of the kind involved in this dispute. But in any event, I think there is
"substantial extrinsic evidence of motives inconsistent with the public
interest" in this record.
Certainly there is as much as you will ever get short of an admission by
a licensee of improper conduct, written policies which are improper or their
face, or the example used by the majority: "testimony of a station
employee concerning his instructions from management." Such testimony
adverse to his employer would quite probably be disputed by management, but in
that case the majority are apparently willing to get into matters of demeanor
and credibility. While testimony of an
employee approaches a declaration against interest, there may be considerations
offsetting the assumed reliability of such testimony, to wit, bias against his
employer, etc. But I do not think we
can consign all testimony by non-station personnel to limbo simply because it
might be controverted, thus requiring the exercise of sound judgment to arrive
at the truth. When responsible people
dealing with a licensee tender evidence which, if true, would establish that
the licensee follows a policy contrary to the public interest, I do not think
we can shrug it off simply because there is dispute as to the facts. Their testimony is extrinsic evidence which
we must consider. If it is internally
inconsistent, inherently improbable, or vague as to essential details we may
decide not to act on it. But the
testimony of complainants here seems coherent, reasonable, and persuasive. It is not contradicted by anyone with
testamentary knowledge of the incident.
There is a well established principle of law that if a witness under the
control of a party is not presented, it may be assumed that his testimony would
have been adverse to that party.
Perhaps Mr. Browne and Miss Kleess would confirm Mrs. Eftis' version of
the events and the conversation which took place. If so, we would have a situation quite different from the one the
majority chooses to address.
I certainly do
not suggest that there is anything here which would go to the licensed status
of WMAL-TV. As a consequence, I do not
believe that inquiry into this dispute -- even the taking of oral testimony
before an examiner -- would constitute improper intervention into the station's
programming. The majority say that
refusal to present blacks in integrated situations with members of other races "would
constitute discrimination in programming." They further say that the
critical issue is whether the licensee "has a policy of not presenting
material involving interpersonal relationships between the races," from
which I deduce that if WMAL-TV had such a policy it would be improper and the Commission
could require corrective action. But
how is the Commission ever to resolve this issue if the licensee's denial of
complaints is to bar us from further inquiry?
I think the majority have stated a valid standard of licensee conduct,
but have cut themselves off from any procedures to enforce it.
[*710]
Certainly, if testimony as to a dispute of this kind were in reasonable
balance, I would be inclined to resolve the doubt in favor of a licensee -- but
after some kind of more searching inquiry than we have made here. I would like to have analyzed the statements
of the parties in detail, but there is no time for that. I think there are some inconsistencies in
the station's account of the matter.
Apparently it believes that a reading of the sixteen lines from the play
quoted in Mr. Stakes' letter, together with the fact that it "was
accompanied by sensuous kisses and caresses, culminating in the placing of
Lula's hand rather high on Clay's thigh" makes the unsuitability of this
scene for television "self-evident." I cannot accept this without
more. Rather, it seems to me probable
that Mr. Browne rejected the excerpt from the play either because the action
involving a black man kissing a white girl offended him or because he thought
it would offend his management or some members of the audience. I think the majority would regard that as
improper, but they refuse to find out if this is the case. I think we should have pursued the matter
further despite its admitted difficulty.
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
A hostess for
the WMAL-TV program, "The Now Woman," invited the cast of the Back
Alley Theatre to perform a short segment from their current play, "The
Dutchman," by LeRoi Jones. During
the "rum through" of the scene for the television cameras the
Director of the program, Mr. Joseph Brown, refused to tape the performance,
allegedly because it contained a scene in which a white woman first placed her
head on a black man's shoulder, and then kissed him lightly several times. Complainant Back Alley Theatre, through its
counsel, Mr. Albert H. Kramer of the Citizens Communications Center, alleges
these facts and then argues that WMAL-TV is guilty of racial discrimination of
a sort inconsistent with the "public interest" obligations of the
station, and improper licensee censorship, citing Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367 (1969). The Commission majority rejects these arguments and
dismisses the complaint. I dissent.
I. RACIAL DISCRIMINATION
Of "The
Dutchman," the play in question, Mr. Alan M. Kriegsman has written in the
Washington Post, March 25, 1970, p. C-1:
The play may be seven years old, but
it still burns with a fierce heat and sheds its pitiless light, exposing a
sickness of soul many would prefer not to see... [What] probably disturbs
[people]... the most about "Dutchman" is how accurate a metaphor it
really is for the nightmare alley of black self-awareness and white
conscience... Indeed, it is its
ruthless candor that has gotten it into trouble.
WMAL-TV's response reflects perhaps, precisely the
reaction predicted by Mr. Kriegsman.
WMAL-TV argues that the scene was rejected "solely" because of
its "sensuous nature" and because "the unsuitability for
television presentation of the Back Alley Theatre's unaltered performance of
'The Dutchman' is self-evident." It maintains that Mr. Brown's reaction
was unrelated to the presence of a black man and a white woman in a flirtatious
setting.
[*711]
Analytically there are three questions involved in determining whether
WMAL-TV's elimination of the scene in question exhibited a degree of racial
discrimination inconsistent with its obligations to the public as a licensee:
(1) Assuming as true all the facts alleged by complainant, would a violation of
the public interest and Commission policy exist? (2) Assuming such a potential violation, are the supportive facts
in such dispute that an evidentiary hearing is required to resolve them? (3) Assuming a potential violation and facts
sufficiently in dispute to warrant a hearing, are there First Amendment or
other considerations which would bar an investigatory proceeding into the
factual issues at hand? As I understand the majority's opinion, its answer to
all three questions is "Yes." May disagreement consists only with their
response to question (3).
The first
question is whether a possible violation of the public interest would exist if
the allegations brought by complainant were true. Although the Commission states that licensees are not common
carriers, n1 that the Commission is prohibited
by Section 326 of the Communications Act from exercising "any power of
censorship over broadcast matter," n2
and that the licensee has discretion to choose the "format and
content" of his programming, n3
it also recognizes that:
n1 But see dissenting opinion of
Commissioner Johnson, pp. 4-6, in Letter to Cong. Richard L. Ottinger, [Judy
Collins incident], FCC Public Notice 47876, April 20, 1970.
n2 But see Eastern Educational Radio
[WUHY-FM], 18 P & F Radio Reg. 2d 860 (1970).
n3 But see, Jack Straw Memorial
Foundation [KRAB-FM], 21 F.C.C. 2d 833 (1970).
... a serious public interest
question would be presented if in its over-all programming a licensee ignored
the needs of a substantial segment of this community or, for example, arbitrarily
refused to present members of an ethnic group, or their views. Refusal to present members of such a group,
either as such or in integrated situations with members of other groups, would
constitute discrimination in programming...
[The] critical issue here is whether the licensee has a policy of not
presenting material involving interpersonal relationships between the races...
This position is unfortunately ambiguous. It is unclear whether the majority believes
a violation of the public interest would exist if one clear example of
"discrimination in programming" were found ["for example,"
if a licensee "arbitrarily refused to present members of an ethnic
group... in integrated situations with members of other groups" -- as
alleged here]; or if a policy of discrimination in programming were found,
presumably consisting of a written memorandum or a series of separate events
["the critical issue here is whether the licensee has a policy of not
presenting material involving interpersonal relationships between the
races" -- emphasis added.]
According to my
understanding of the Commissioners' intent in this area, however, based on
discussions with them and members of the staff, the majority intended to rule
that even one clearly provable example of racial discrimination, such as the
one here alleged, could be sufficient to make out a case of
"discrimination in programming" against the licensee. n4 I
concur in that interpretation. Two
years ago the Kerner Commission wrote:
n4 This is evident, at least by implication,
from the majority's discussion (on p. 4) of the motives of WMAL-TV -- all of
which would be irrelevant if the Commission's policy was not to investigate
individual instances of alleged discrimination. Of course, the question of the appropriate penalty for a single
violation of the sort here alleged remains an open one.
[*712]
[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 shown understanding or
appreciation of -- and thus have not communicated -- a sense of Negro culture,
thought, or history... The absence of
Negro faces and activities from the media has an effect on white audiences as
well as black. If what the white
American reads in his 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 Nat'l.
Advisory Comm. on Civil Disorders 383 (Bantam ed. 1968). LeRoi Jones' play, "The Dutchman,"
has been widely acknowledged as a major contribution toward an understanding of
black-white racial problems in this country.
It won the "Ohie" Award for the best American play of the
1963-64 season. An
"arbitrary" refusal to broadcast a portion of LeRoi Jones' play,
based on the ground that the presence of a black man and a white woman kissing
in one scene was "offensive" either to the licensee or (in the
licensee's judgment) to his viewers, would, I believe, constitute a clear
example of discrimination. Cf. Loving
v. Virginia, 388 U.S. 1 (1967); Burton v. Wilmington Parking Authority, 365
U.S. 715 (1961); Nondiscrimination Employment Practices of Broadcast Licensees,
18 F.C.C. 2d 240 (1969), at 214 n. 2 and accompanying text.
It is important
to note, however, that racial discrimination would be evidenced in WMAL-TV's
action not per se, because the portion of the play was rejected, but because it
was rejected for an improper reason. In
Reitman v. Mulkey, 387 U.S. 369 (1967), for example, the Supreme Court declared
unconstitutional an attempt by California's voters to repeal a statute
prohibiting racial discrimination in public housing. The Court acknowledged that the State (embodied in its voters)
certainly had the power to return to "a neutral position" by
repealing the fair housing laws, but held that it could not do so with an
improper motive or "intent" -- the intent to condone or encourage
racial discrimination. Reitman v.
Mulkey, supra at 376. Similarly, if a licensee engages in any conduct of a
discriminatory nature -- whether it be racially biased hiring or firing of
personnel, improperly gerrymandering of community needs surveys, or program
censorship based solely on racial grounds n5
-- then this reflects motives and conduct that are inconsistent with its
obligations as a public trustee for its beneficiary-audience. In this sense, what the licensee actually
does -- whether it be a programming decision or some other conduct -- is
important only for what it betrays; behavior motivated by racial biases which
are inconsistent with the terms of a broadcast license. Nothing would prevent a licensee from
rejecting a program on any number of grounds -- e.g., legal
"obscenity," poor technical standards, insufficient artistic quality,
untimely subject matter, or perhaps even whim
[*713] (simply because the
licensee didn't like the program), n6
just as nothing prevents a defense counsel from peremptorily rejecting
potential jury members in a criminal trial.
But if the licensee rejects a program or a scene solely because it
offends his racial prejudices, and his motives for doing so are clearly
revealed, he will have violated the public interest standards written into his
license and must be held to account for it.
n7
n5 This is not to say, of course,
that the appropriate "remedy" for censorship based on solely racial
grounds is enforced broadcast of the material in question -- as is the remedy for
violations of the Fairness, Equal Time and Personal Attack doctrines. Whether or not a licensee would be required
to broadcast the censored program might turn, in part, on such other factors as
those developed in Part II below.
n6 Again, this statement may be
qualified by considerations of "access," discussed in Part II
below. Under certain circumstances, a
licensee may not be able to reject programming even on "whim."
n7 Of course, even if a licensee
rejects a program on several distinct grounds, only one of which is
"racial," the licensee's qualifications to operate his facility fully
in the public interest would still be drawn into serious question. The presence of more than one motive would
merely make the problems of proof more complicated and difficult.
The second
question before us -- if a potential legal violation exists -- is whether the
facts are sufficiently disputed to warrant a hearing, or whether the legal
issue can be resolved on the pleadings.
On this the majority is clear: "We have conflicting statements from
the complainant and the licensee in this case." Normally, therefore, a
hearing would be in order to determine the facts of the case.
The third
question involved here, however, is more difficult. The Commission has acknowledged that a potential legal violation
exists; that the facts which would support or deny such a violation are in
conflict; and that the essential problem is ascertaining the "real
motives" of WMAL-TV in rejecting the scene in question. The majority concludes, however, citing
Hunger in America, 20 F.C.C. 2d 143 (1969), that this Commission will not
initiate an investigation to resolve the factual questions, absent
"extrinsic evidence" of motives inconsistent with the public
interest. An example of such
"extrinsic evidence" given by the majority is the "testimony of
a station employee concerning his instructions from management."
I have several
problems with this conclusion. First,
it is not clear to me that the policies of Hunger in America apply here. Hunger in America involved the problem of
alleged "news staging" -- the intentional slanting, distortion or
manipulation of the news. But in cases
of news staging, there are always three questions we must ask: first, what
"actually" happened; second, did the portrayal involved deviate
substantially from what actually happened; and third, why (in terms of
newsmen's motives) did the substantial deviation occur? In the present case, however, the first two
questions do not exist; there is no objective "truth" or "reality"
(other than the motives of the persons involved) into which we are
inquiring. There is no "news"
here at all. We remarked in Hunger in
America, 20 F.C.C. 2d 143, 151 (1969), that "in this democracy, no
Government agency can authenticate the news, or should try to do so." I
agree. But I do not see how an inquiry
into a pattern of events that might provide us with clear evidence of racial
discrimination involves an attempt to "authenticate the news."
Further, the
dangers of investigations into "news staging" are that the
omnipresent threat of government surveillance may deter the licensee from
broadcasting controversial material. In
the instant case, however, the deterrent already exists and is self-imposed. Rather than creating a risk of greater licensee
censorship, an inquiry might encourage even less censorship.
[*714]
Finally, it seems to me that we may already have sufficient
"extrinsic" evidence to justify a further investigation. To be sure, we do not have a memorandum from
an "insider" relating a station policy against portraying scenes such
as the one involved here; nor do we have direct testimony from a member of the
licensee's staff. But we do have an
affidavit from at least one witness of the incident describing a series of
events which, if corroborated, would raise a strong presumption of
discrimination. n8
n8 I find it peculiar, to say the
least, that we have not even required an affidavit from Mr. Joseph Brown or
other decision-making WMAL-TV personnel, and I concur in Commissioner Cox's
discussion of this point.
According to an
affidavit by Mrs. Eftis, producing director of the Back Alley Theatre, the
actors began to enact the following dialogue:
CLAY. The party!
LULA. I know it'll be something good.
You can come in with me, looking casual an significant. I'll be strange, haughty, and silent, and
walk with long slow strides.
CLAY. Right.
According to the affidavit, the actors had just
reached this point in the dialogue when the director of "The Now
Woman," Mr. Brown, "began shaking his head and telling Miss Yahya
[the director of 'Dutchman'] that the scene could not be taped." If this
is true, then it is difficult to imagine why the scene could not be taped --
unless it involved something not in the script (such as the presence of a black
man and a white woman). The licensee,
of course, has disputed the account in this affidavit, and it may well be
correct. But in light of this dispute,
I would think it incumbent upon this Commission at least to inquire
further. Such a preliminary inquiry
should be carefully limited to focus, not upon Mr. Brown's intent in
eliminating the segment in question, but on whether he did in fact evidence his
disapproval immediately after Clay spoke the word, "Right."
Accordingly, I
would have preferred a limited investigation into the incident in question,
with the specific purpose of ascertaining only the sequence of events -- to the
best recollection of available witnesses.
This might easily be done without an examination of Mr. Brown or his
motives. If the evidence overwhelmingly
indicated that Mr. Brown evidenced his intention to cancel the segment at a
very early point in the dialogue, and that there is no convincing or even
plausible reason for this conduct (other than a discriminatory reaction toward
the presence of a black man and a white woman together in one scene), then I
would simply inquire whether the licensee had adequate policies, sufficiently
enforced, to prevent the recurrence of such an incident. Absent some egregious conduct on the part of
the licnesee's management, I would certainly feel the no sanction or reprimand
would be proper. Cf. Hunger in America,
20 F.C.C. 2d 143, 150, at par. 20 (1969). Isolated incidents of misconduct,
particularly where management could not reasonably have forestalled such
conduct, should incur no sanction from this Commission. See Pacifica Foundation, 36 F.C.C. 2d 147,
150 (1964).
[*715]
II. ACCESS
Complainants
also argue that WMAL-TV's elimination of "Dutchman" from its morning
program, "The Now Woman," was improper licensee censorship and
prohibited by Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). Implicit
in this argument is the contention that Back Alley Theatre had a
"right" of some sort, recognized by law, to exhibit a scene from
"Dutchman" to the Washington metropolitan area audience over
WMAL-TV's television facilities. This
"right" might be described as one of "access" to the
broadcast facilities of a licensee who, according to established precedent,
serves as a "trustee" of the public airwaves for the benefit of the
public as the trust's "beneficiaries."
The Supreme
Court has recently provided some significant support for this position. In its Red Lion decision, the Court
observed:
[Those] who are licensed
stand no better than those to whom licenses are refused... [The] licensee has no constitutional
right... to monopolize a radio frequency to the exclusion of his fellow
citizens. There is nothing in the First
Amendment which prevents the Government from requiring a licensee to share his
frequency with others and to conduct himself as a proxy or fiduciary with
obligations to present those views and voices which are representative of his
community and which would otherwise, by necessity, be barred from the airwaves.
... It is the right of the viewers and
listeners, not the right of the broadcasters, which is paramount... It is the right of the public to receive
suitable access to social, political, esthetic, moral, and other ideas and
experiences which is crucial here.
... There is no sanctuary in the First Amendment
for unlimited private censorship operating in a medium not open to all...
Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 389, 390, 392 (1969) (emphasis
added). The Court also added a very
clear reminder to Congress and the FCC that they are charged with creating a
true First Amendment marketplace of ideas.
Stating that the "right of the public to receive suitable access to
social, political, esthetic, moral, and other ideas and experiences... may not
constitutionally be abridged either by Congress or the FCC..;" the Court
intimated that it would view very seriously "a discriminatory refusal [by
the Commission] to require the licensee to broadcast certain views which have been
denied access to the airwaves...." Red Lion Broadcasting Co., supra at 396
(emphasis added).
These statements
supply the guideposts which should direct the Commission and the courts toward
a developing new "common law of access" to the mass media. This law of access must begin to define and
limit those situations in which the licensee can exercise his discretion to
reject ideas and experiences offered for broadcast by citizens within its
service area. In a most preliminary
way, the Supreme Court has indicated in Red Lion the sort of lines that must be
drawn. Thus, the licensee cannot
monopolize his frequency to the complete "exclusion" of other
citizens (395 U.S. at 389); he does not have the power of "unlimited"
censorship (395 U.S. at 392). On the contrary, the licensee may have the
obligation to present those views and voices which "otherwise" would
be "barred" from the airwaves (395 U.S. at 389); [*716]
the public must receive "suitable" access to various ideas and
experiences (395 U.S. at 390). Should this not occur, the Constitution may
compel the FCC to require the licensee to broadcast those views "which
have been denied access to the airwaves" (395 U.S. at 396).
Clearly, a
licensee must retain some power to reject programming -- if only when it fails
to meet certain quality standards, is duplicative of other programming, or
violates federal law (lotteries, obscenity, etc.). But just as clearly the licensee, as a trustee, does not possess
unlimited power to monopolize the use of that valuable property which he holds
in trust for the public. The guidelines
for access, therefore, must ensure that the broadcast channels of the twentieth
century are as open to the public as were the soap boxes, public parks, and
town hall meetings of the last century.
We must begin to define, on a case-by-case basis, the scope of what the
Supreme Court has described as "suitable access" for ideas and
expression. The Commission and the
courts must come to view the broadcast licensee, not just as a private
profit-maximizing entrepreneur, but as a "gatekeeper" who is bound by
the guidelines of policy, law and the public interest when he decides which
ideas and expression may be communicated by one citizen or group of citizens to
another.
The FCC and the
courts have already begun to develop variants of the "access"
doctrine. The Fairness, Personal Attack
and Equal Time doctrines all curtail the licensee's discretion to reject
programming. So does the requirement
that the licensee ascertain community needs and interests and devote "some
significant proportion of [its]... programming" to them. City of Camden, 18 F.C.C. 2d 412, 421 (1969). Newer aspects of
"access" are being explored.
One such issue, now before the Commission, is whether licensees have the
unrestrained right to reject pre-paid politically-oriented advertising solely
because the licensee disagrees with the views it contains. See, e.g., Letter of Complaint, filed with
the FCC on behalf of Business Executives' Move for Vietnam Peace (Jan. 22,
1970). Another related problem is the
ability of licensees to censor out of a prepared program, during its broadcast,
the remarks of an invited guest. See
Letter to Cong. Richard L. Ottinger [Judy Collins incident], FCC Public Notice
No. 47876, April 20, 1970 (dissenting opinion of Commissioner Johnson). And the courts have already fashioned
several doctrines which prevent the private owner of forums used to communicate
ideas from censoring individuals who have a right to be there. See, e.g., Food Employees Local 590 v. Logal
Valley Plaza, Inc., 391 U.S. 308 (1968); Marsh v. Alabama, 326 U.S. 501 (1946);
University Committee v. Gunn, 289 F. Supp. 469 (W.D. Tex. 1969); Wolin v. Port
of New York Authority, 268 F. Supp. 855 (S.D.N.Y. 1967), aff'd, 392 F. 2d 83
(2d Cir.), cert. denied, 393 U.S. 940
(1968); In re Lane, 457 P. 2d 561, 79 Cal. Rptr. 729 (1969); In re Hoffman, 67
Cal. 2d 845, 434 P. 2d 353, 64 Cal. Rptr. 97 (1967).
The essential
question posed by the Back Alley Theatre's complaint, therefore, is whether its
"right of access" to the television media has been
"triggered," see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 391
(1969), by the nexus of facts involved in the incident for unlimited private
censorship operating in a medium not open to all."
[*717]
The case before us is analogous.
The Back Alley Theatre was asked to appear on "The Now Woman";
it was not asked, nor did if offer, to purchase air time; the time for the
taping and air broadcast was scheduled; the format was pre-arranged; the
Theatre was asked to perform part of a specified play; the topic under
consideration was important and timely; the play's author was a man who many
have described as a "spokesman for the views contained on that play; the
theater group took the time and effort to appear at the appointed time and
place; and taping was begun (although not completed) as arranged.
Two elements in
the Judy Collins incident, are missing in the incident before us: the taping
was not completed; and the segment was not broadcast. On the other hand, ABC argued in the Judy Collins incident that
one justification for their censorship was the possibility of prejudicing a
fair trial. That objection is not
present here.
Again I feel, as
in the Judy Collins incident, that we cannot squeeze all cases of licensee
censorship into the confines of the Fairness Doctrine, and that this Commission
should begin to develop doctrines of "access" on a case-by-case
basis. But in part because the parties
have not briefed this issue, I will defer my own detailed examination of these
problems until a later time.