RED LION BROADCASTING CO.V. FCC

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Argument of Erwin N. Griswold

Chief Justice Earl Warren: Number 2, Red Lion Broadcasting Company Inc.et al, petitioner versus Federal Communications Commission et al.

Mr. Solicitor General?

Mr. Erwin N. Griswold: Mr. Chief Justice and may it please the Court.

Before resuming my argument, I would like to make a reference to one matter to which I referred yesterday afternoon.

I raised question as to whether there was something in this exchange of letters between the commission and the Red Lion Broadcasting which constituted and ordered, which was properly subject for judicial review.

I should point out that the question whether there was something reviewable there was presented by petition for rehearing en banc by the Government, which was joined in by the other side and that my reference there should be simply my own personal puzzlement as to what in these days constitutes a proper subject of judicial review.

At the conclusion of the argument yesterday afternoon, I was referring to the suggestion that the personal attack regulations would inhibit actions by broadcasters.

The inhibition I've suggested lies -- the suggestion of inhibition I contended, lies in a misapprehension of the status of the broadcaster.

It based on the assumption that every minute of the time available to a broadcast licensee is his to use for his own personal financial profit.

And I was arguing that his license allows him to use a public facility.

It provides that it must be used for the public convenience and interest.

If he doesn't meet the standard of the public interest, the commission may fail to renew his license, it can even cancel it.

And certainly, the personal attack doctrine as an aspect of the fairness doctrine does no more than to say that he must use his privilege in this particular circumstance in the public interest.

His license comes to him burdened with a public obligation, and he is in no position to claim that he is inhibited if he is required to make a modest performance on the obligation.

Experience shows that there is little trouble under the fairness and personal attack doctrines with the great networks and the stations which they control.

The problem arises mostly with the small independent stations as in the present case.

As I've already indicated, there's no evidence here, no showing of any hardship, or even of lost of revenue by the station.

Mr. Robb in his argument yesterday admitted that there was a personal attack, so, there is no question here about the suggested vagueness of the regulation.

The only objection that the station made was to the granting of free time.

They made no suggestion as to a problem of scheduling.

Moreover, as has been indicated, they had a format.

They had a free speech hour each week when they could readily have putted in.

Indeed, many small stations play a great deal of music and an appropriate response to a personal attack could have been put on the air in place of a single recording.

The commission does not undertake to tell the station just where the response must be put as long as the station chose an effort to be fair.

The placing of the response is up to it.

If it can get a sponsor, it's free to do so.

Otherwise, it must be on sustaining time.

But as I've indicated, that is part of the obligation.

It undertakes when it accepts its license.

Justice Potter Stewart: Was that all clear back at the time that this Red Lion episode occurred that it was the obligation of Red Lion to not only to give an opportunity to the person whose character have been attacked, but also do it at no expense to him?

Mr. Erwin N. Griswold: Let me say in response to that Mr. Justice that the fairness premier had been published before this.

The fairness premier is essentially a digest of previous rulings of the commission.

I think I'm right in my recollection that at least one of those rulings involved the question of free time.

It was not as explicit as it was in this exchange of letters, but I think it is inherent in the fairness doctrine.

Justice Potter Stewart: All just glancing through the appendix and I haven't read it carefully.

There seems to be an indication that many of these broadcasting companies and they were great many that broadcast this particular speech.

Mr. Erwin N. Griswold: I think there were a 165 to broadcast this program.

Justice Potter Stewart: Many of them seem to take the view that their obligation was met by this simple offer of free time if you want to pay for it.

Mr. Erwin N. Griswold: Simple offer of time.

Justice Potter Stewart: Of time, of time.

Mr. Erwin N. Griswold: -- time if you wanted to pay for it.

Justice Potter Stewart: Or a showing that he was he was a pauper or something like that.

Mr. Erwin N. Griswold: But let me suggest to you Mr. Justice that paying for time on a 165 stations is pretty substantial burden to put on the person involved here, particularly when as this our submission, this is really the obligation of the station in meeting the statutory requirement of operating in the public interest which over the course of a long evolution has developed into the fairness doctrine and more specifically into the personal attack doctrine.

Justice Potter Stewart: I understand your submission as to the importance and necessity of it's being free time, but I -- my question is as you understood I know was whether or not that was also clear back at the time of Red Lion broadcast.

Mr. Erwin N. Griswold: Not as clear as I would like to have it to be.

There was no -- nothing stated in bold face type that you must do this on free time if you can't get a sponsor.

I think it was understood and I don't think that Red Lion was surprised when the response came from the commission.

Certainly, that is a part of the issue here.

I think it would be unfortunate in the long run to have it said that "Well, you can reply if you can pay for it, or you can reply if you can get sponsor," that would seem to be a considerable hindrance on a free speech and the development of a robust debate which is the underlying objective of the First Amendment.

It is our position that the objective of the fairness premier of the commission's action here is to implement the First Amendment, not to subvert it.

To induce the licensees to recognize their obligation under the amendments since they are utilizing a portion of a public facility, it has been argued that the First Amendment requires an opportunity for response in a situation like this, that in effect the United States would be denying free speech if there were no personal attack doctrine.

I don't go that far, but I do contend that the regulation here involved on these facts does implement the First Amendment, does protect the public's right to hear which is the underlying basis of the First Amendment, and tends towards encouraging robust in spirited debate in accordance with the thrust and objective of the First Amendment.

And for these reasons, we would submit that the decision of the Court of Appeals in this case should be affirmed.

Chief Justice Earl Warren: Mr. Robb?

Argument of Roger Robb

Mr. Roger Robb: Mr. Chief Justice and may it please the Court.

Referring briefly to the statement by the Solicitor General concerning whether or not this was a final order for which I thank him, I think that perhaps I might pledge that out a little bit by reference to the records.

Now, as has been indicated, when this case was first presented in the Court of Appeals to a panel consisting of Circuit Judges Miller, Fahy and Tamm, the question was raised as to whether or not the order involved was a final order.

At that time, the respondent commission was represented by Mr. Giller his general counsel and by Mr. Assistance Attorney General Turner of the Department of Justice.

Judge Miller in his opinion said this in which appeared at page 84 of the joint appendix.

In considering this matter, we are confronted by the threshold question, whether the commission's letters of October 6 and December 9 were final orders from which an appeal maybe taken.

Pursuant to our invitation, the parties have submitted memoranda on the question in which they agreed that the commission's letters constitute final appealable orders.

However, Judge Miller and Judge Tamm held that the orders were not finally appealable.

Judge Fehy dissented in which he said, “All parties including the one against whom the ruling was made, understood the commission had decided finally that Red Lion was under obligation to comply with the fairness doctrine and had so notified the Red Lion.”

Thereafter, there was a motion for a rehearing en banc, in which again, the respondent was represented by Mr. Turner of Department of Justice, and as Judge Tamm points out in his opinion, final opinion, thereafter, the United States and the Federal Communications Commission petition for en banc rehearing of the case.

In other words, at Mr. -- as had been pointed out, all parties joined in that petition and I note in the brief for the Government filed here at page 9, appears the statement.

Number 2 here and after Red Lion involves a challenge to a 1965 commission order directing Red Lion Broadcasting Company Inc. licensee of radio station WGCB in Red Lion to afford time to Fred J. Cook.

So, I take it there can be no question, so far as the Government is concerned, this is a final appealable order.

Now, Mr. Griswold has made reference to the distinction what he argues between newspapers and radio in the matter of regulation.

And he suggest that since radio is subject to some regulation, therefore, should be distinguished from the case of newspapers.

We suggest that newspapers are also subject to the law.

They're subject to the antitrust laws.

They're subject to the obscenity laws perhaps to a certain degree.

But that does not mean that the Government may dictate what maybe publish or what not maybe publish.

The newspapers enjoy the privilege of law postal rights as do periodicals, but this Court has held in the Hannegan v. Esquire case that the fact that these rates are granted to publications as a privilege, does not authorize the Government to determine what is in the public interest to be mailed and what is not.

Now, let me advert briefly in connection with newspapers and news stories to the question put to me yesterday by Mr. Justice White, and which perhaps at the time, I failed to understand fully or misunderstood.

The question as I recall it was whether or not this Hargis broadcast might have been carried as a bonafide newscast, and therefore have avoided the requirement that free time be given for a reply.

I think in the first place is if one examines this broadcast that one must reach a conclusion that under no stretch of the imagination could this be considered a bonafide news broadcast.

It is a discussion and an attack on Mr. Cook and his book.

However, and this matter is discussed at some length in the brief filed in Number 717 by Columbia Broadcasting System.

However, in the first place, under the fairness doctrine or the personal attack doctrine as it stand stood the time of the broadcast, there was no exemption for a personal attack carried in a news broadcast.

Justice Byron R. White: This is just not the current rule.

Mr. Roger Robb: Yes sir, but even under current rules, may it please the Court, even under the current rules, and the current rule is published at page 20, printed at page 20 of the CBS print.

Justice Byron R. White: You're talking about the current.

Mr. Roger Robb: It is still subject to the fairness doctrine unless, unless the broadcaster carry some general answer to the attack in some other way.

Justice Byron R. White: Even he isn't subject to the specific and personal attack rules, he's still subject to the generalities of the fairness doctrine --

Mr. Roger Robb: Yes sir, yes sir.

Justice Byron R. White: -- in trying to search out the position of presenting it on the other --

Mr. Roger Robb: Yes sir.

And as the Seventh Circuit held in the other case, our reading of the latest amendment indicates that unless the response of the person attacked is fairly prevented by the licensee on the attack issue of the exempt broadcast, the licensee, he must adhere to the explicit requirements of the rules, so that the exception is really rather -- a rather insubstantial.

Now, --

Justice Byron R. White: What's your - what's your client's basic view of the air, the atmosphere through which these waves travels really public property or does it belong to the people?

What was it?

Mr. Roger Robb: Well, --

Justice Byron R. White: Some people suggest that it's like a public street.

Mr. Roger Robb: I beg your pardon?

Justice Byron R. White: Some people suggest it's like a public street that everybody has some right of going into for communication purposes.

Mr. Roger Robb: Well, even assuming that to be true, may it please Your Honor, now this Court has held in many cases, but although public streets and public parks are public property and held in trust for the public, the Government may not under the guise of regulating the use of the streets or parks impinge upon the right of free speech.

Justice Byron R. White: That's true.

That's true.

That's true.

But if they're -- but couldn't they insist if they're going to give people, certain selected people the exclusive right to use the parks that they let somebody else use them too sometimes under some condition?

Mr. Roger Robb: Well, --

Justice Byron R. White: -- use the parks or the streets or the airwaves?

Mr. Roger Robb: Well, I don't quite follow Your Honor's analogy in that connection.

It seems to me obviously, everybody can have a license for radio station because there are not enough frequencies left out.

Justice Byron R. White: Well, that's true, that's true, and the people they given to, the Government suggests, they ought to able to require let somebody else into the facilities now and then when there's good reason to do so.

Mr. Roger Robb: Well, that maybe taken care by the general fairness doctrine about which I have no comment, except to say that there's a distinction I think and a very sharp distinction between a general requirement that during the term of his license, a radio broadcasting company must observe general fairness.

And if it failed to do so, at the end of its term, it might not get his license back.

I think a distinction between that situation and the situation we have here where the Government undertake to tell a radio broadcaster what it must broadcast and who it must be put on the air.

Justice Byron R. White: I'm not suggesting that anything specific about these specific rules, but in principle, do you object to the notion that the Government --

Mr. Roger Robb: I beg pardon?

Justice Byron R. White: In principle, do you object to the notion that the Government in granting licenses which are available in limited numbers, if they suggest to the licensee that under certain conditions, they must let some other people besides themselves use the facilities?

Mr. Roger Robb: Well, Your Honor says in principle Your Honor, it makes a lot of difficult to answer because the principle might be extended to lengths which I would not be able to accept.

Justice Byron R. White: Well, the fairness doctrine just as still -- the general fairness doctrine still just leaves it in the and I take it in the hands of the broadcaster to decide what material would go over the air waves to create the balance which the fairness doctrine might require.

Is that correct?

Mr. Roger Robb: Yes sir.

Justice Byron R. White: And so I ask you again, would you say that the Government would be disentitle to -- in connection with the license specific to require that the licensee allows certain specific material to go on the airwaves rather than just leaving it up to him?

Mr. Roger Robb: I would answer that question, no, yes sir.

Justice Byron R. White: So --

Mr. Roger Robb: I think that's what they're doing in this case --

Justice Byron R. White: Yes, that's right.

And you say that public has no right in connection with granting a license to say to the licensee that here are some materials that you must broadcast at some point in your operation.

Mr. Roger Robb: I don't think I phrased it quite that well Your Honor.

I think I'd say --

Justice Byron R. White: If some other members of the public want it broadcasted.

Mr. Roger Robb: Your Honor, say the public has no right to hear it.

I would say that the Government has no right to dictate to the broadcaster that he must present it to the public in a certain way in certain time for a certain person.

Justice Byron R. White: And you say that you may that the Government may not say that if John Jones, a member of the public demands from you under certain conditions that he'd be allowed to speak on your facilities that you must do so, you would say the Government may not say that?

Mr. Roger Robb: Yes sir.

I might point out to the Court in that connection with the respect to the general proposition of fairness that the record shows here that Red Lion did broadcast I think half an hour at one time and 15 minutes in another time did give to the democratic national committee, that time, to broadcast a general program on what was called Eight Clubs of the Air, which included Mr. Hargis who is involved in this broadcast, so that the public did have that before it.

Chief Justice Earl Warren: Mr. Robb, may I ask you this.

You acquiescent reasonable in this rule, don't you?

Mr. Roger Robb: Oh, yes sir, yes sir.

Chief Justice Earl Warren: Well, what in principle is the difference between the situation in the case we have here, where they say that the radio station must have -- must give free time to someone to answer on the one hand, and on the other hand that the conclusion of the term of the license that if commission says to them now here.

You haven't been reasonable, you haven't been fair, you've been out of line in what you say is -- is they're using their First Amendment rights and therefore we take away you license.

Now, what is the difference in principle between those two?

Mr. Roger Robb: Well, I notice in the brief of the Government, a reference to a decision of the F.C.C. in a case in which it was attempted to cancel the license of a broadcasting station on the ground that the station over a period of years had been broadcasting anti-semitic programs, and the Federal Communications Commission held that was not a profit ground upon which to revoke the license.

So apparently and obviously I think, the Federal Communications Commission draws a distinction between such a proceeding and such a -- an attack upon that station, and the case which we have before us where in a particular case, with the respect to a particular matter, the station is told that it must broadcast particular material through the voice from the mouth of a particular individual.

Irrespective of the fact that the station may have been overall perfectly fair with respect to the issue discussed.

This isolates a particular individual and the particular individual desires from the general question of whether during its term of service, the station has been fair and reasonable.

Chief Justice Earl Warren: Is that a question of principle or is that a question of degree?

Mr. Roger Robb: I think it's a question of principle Your Honor.

Chief Justice Earl Warren: What is the principle?

Mr. Roger Robb: I think the principle is the distinction between dictating a particular program which I think -- think come out to censorship.

And over a period of years, a passing judgment on whether or not the performance of the station over those years had been fair.

I can see a distinction there.

Chief Justice Earl Warren: In order words, it's a distinction between an individual program and on the one hand than overall policy on the other.

Mr. Roger Robb: Yes.

I think that's probably what Mr. Chafee had in mind when he wrote his article on this matter, in which he said that dictating a particular program and the contents of one is the very essence of censorship.

Chief Justice Earl Warren: You mean to require an answer is censorship.

He certainly doesn't mean that, does he?

Mr. Roger Robb: I beg your pardon?

Chief Justice Earl Warren: Certainly he doesn't mean to require an answer is censorship, does he?

Mr. Roger Robb: Well --

Chief Justice Earl Warren: Isn't there something else if it's --

Mr. Roger Robb: Yes sir.

Chief Justice Earl Warren: If it's right?

Mr. Roger Robb: Mr. Justice Stewart asked the Solicitor General whether or not Red Lion was on notice that it would be required to give free time.

Well, I can't state definitely that it would not.

I'm advised that there was nothing clearly stated prior to his ruling which put Red Lion on notice that it must give this free time.

And obviously, many of the radio stations who responded to Mr. Cook felt that their obligation was fully fulfilled when they offered him time on a paid basis.

I think unless the Court has for further questions, that is all time that I will impose upon the Court.

Chief Justice Earl Warren: Very well, thank you.

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Argument of Griswold

Chief Justice Earl Warren: Number 717, United States et. al., petitioner versus Radio Television News Directors Association, et. al.

Mr. Solicitor General.

Mr. Griswold: Mr. Chief Justice and may it please the Court.

I'm referring for a moment to the previous case in Mr. Justice Stewart's question.

I would call attention to ruling number 17 in the Fairness Primer which deals specifically with the question of paid sponsorship and advices the stations through recounting the ruling in a case of the Cullman Broadcasting Company and says that it is not sufficient if you simply offer sponsored time.

Justice Potter Stewart: And if -- I lose track on the chronology here, the Fairness Primer was published when?

Mr. Griswold: The Fairness Primer was published July 1, 1964 and not only was published in the Federal Register but it appears in the record that it was distributed to each broadcasting facility in the country.

Justice Potter Stewart: In the Hargis Broadcast was a little later that year, wasn't it?

Mr. Griswold: And --

Justice Potter Stewart: The Hargis --

Mr. Griswold: The Hargis -- it was in 1965.

Justice Potter Stewart: 65?

Mr. Griswold: Following -- following this event.

Now turning to Number 717, the Radio Television and News Directors Association case which there are a considerable number of other respondents, a number of whom have filed briefs, I think I might say at this point that I take at certain satisfaction from the fact that in this case, the American Civil Liberties Union is on my side and also the United Church of Christ has filed a brief amicus curiae which is a very excellent brief.

If the court should find our brief too long, I would hope they would read that because it is a very fine presentation of our position.

This case is the sequel to the one just argued but it's quite different.

It fits in chronologically but it comes with a very different setting.

There are no facts in this case but there is a formal regulation which is attacked with a widely scattering shotgun.

The Federal Communications Commission wrote its final Red Lion Letter on December 10, 1965.

Shortly thereafter, on April 6, 1966, the Commission issued a notice of proposed rulemaking complying fully with all of the requirements of the Administrative Procedure Act.

This indicated the Commission's purpose to adopt rules with respect to two matters, personal attacks and political editorials.

The text to the proposed rule was set forth and in accordance with the Administrative Procedure Act comments were invited and many were received.

And the comments however took the form of arguments.

There were some reputations or some representations but nothing in the form of evidence was presented.

There were no affidavits or depositions.

Nor was any testimony of witnesses offered or invited at the hearing.

That isn't the practice with respect to hearings on a proposed rulemaking.

More than a year later, on July 5, 1967 and in that connection with respect to findings, I would like to call attention to Justice Brandeis in Pacific States Company against White.

There is a lot of talk in this case to the effect that the Commission didn't make findings to support its regulation.

But Justice Brandeis in that well-known case said here, "There is added reason for applying the presumption of validity for the regulation now challenged was adapted after notice and public hearing as the statute required.

It is contended that the order is void because the administrative body made no special findings of fact but the statute did not require special findings doubtless because the regulation authorized with general legislation, not an administrative order and the nature of a judgment directed against an individual concern.”

In 1967, the Commission formally adopted the rules which had had proposed with only slight changes.

In doing so, the Commission issued a statement saying that it was simply a codification intended to clarify a portion of the obligation under the Fairness Doctrine which as I have indicated in the previous case finds its origin more than 40 years ago and has been slowly developing over all of the intervening years with the Equal Time Provision and the statute going back to 1927 as the first exemplification of it.

We think it finds specific statutory recognition in the amendment which Congress adopted to Section 315 in 1959 as well as in Section 315 itself which is the Equal Time Provision which after all is simply a specification of one application of the general fairness concept which is implicit in the very fact of Federal Regulation of Radio Communications.

The regulation which the Commission adopted in 1967 has been twice amended at both times to narrow it, both times I think an exercise of care and caution by the Commission.

On August 7, 1967, it was amended to exempt bona fide newscast and on the spot coverage of bona fide news events and then after review was sought in the Court of Appeals.

It was amended again, this time to exempt bona fide news interviews and commentary or analysis in the course of bona fide newscast.

The regulation as finally amended is set out on pages 7 and 8, the very last line on page 6 but on page 7 and 8, of the Government's brief and I think it is desirable to put its term before the Court by reading.

It starts with the heading personal attacks, political editorials.

When during the presentation of views on a controversial issue of public importance and attack is made upon the honesty, character, integrity, or like personal qualities of an identified person or group, the licensee shall within a reasonable time and in no event later than one week after the attack transmit to the person or group attacked; (1) notification of the date and time and identification of the broadcast; (2) a script or tape or an accurate summary of this or if a script or tape is not available of the attack; and (3) an offer of a reasonable opportunity to respond over licensees facilities.

(b) The provision of this paragraph (a) -- of paragraph (a) of this station shall not be applicable; (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesman or those associated with them in the campaign on other such candidates, their authorized spokesman or persons associated with the candidates in the campaign and (3) to bona fide newscasts, bona fide news interviews and on the spot coverage of a bona fide news event including commentary or analysis contained in the foregoing programs but the provisions of paragraph (a) shall be applicable to editorials of the licensee.

And then there is a note, the Fairness Doctrine is applicable to situations coming within three above and then a specific factual situation may be applicable in the general area of political broadcast.

And then paragraph (c) where -- paragraph (c) turns to a new topic, a personal attack is close now.

This is the editorializing portion of the regulation where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii) the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial; and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the licensee's facilities.

Provided, however, that where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this subsection sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.

Now, I think that that shows that the Commission used a great care in formulating the regulation and making its requirements clear to the broadcasters who are involved.

Before I leave the question of the text to the regulations, I should refer to one other matter when the final amendment of the regulation was issued there was also an accompanying memorandum and this is set out at page 228 of Volume 1 on the appendix.

Both the Radio News -- Radio Television News Directors Association, I never can keep those initials straight RTNDA, and the Columbia Broadcasting System make much in their briefs, subparagraph 5 of this memorandum which is set out beginning on page 232 and it is repeatedly said in particularly in the Columbia Broadcasting brief that though the Commission in its regulation exempted those several categories of news broadcast, bona fide newscast, bona fide news interviews, and on the spot coverage of a bona fide news event including commentary or analysis contained in the foregoing programs that they took it all back by paragraph 5 of this memorandum.

And I suggest without reading paragraph 5 now, that what paragraph 5 does is simply to remind the stations that everything they do is subject to the Fairness Doctrine and even though these items in the news programs are exempted that if overall they have done a job which is not in the public interest, that is a matter which is relevant in consideration with the regulation of the stations.

We think that the suggestion in the Columbia Broadcasting brief that this takes back everything is not an accurate summary of it.

All that paragraph 5 does is to say that the news programs like everything else the broadcaster does remains subject to the Fairness Doctrine which is inherent in the very concept of public regulation of broadcasting and is implicit in the grant of a temporary license to a broadcaster on the basis of public convenience, interest and necessity.

So we have the rules which were adopted by the Commission in 1967 with the two later modifications.

Without anything more, the respondents here filed petitions for review of the orders of the Commission, some of these were filed in the Seventh Circuit, others in the Second but they were all consolidated by transfer in the Seventh Circuit and that is the one decision which is before the Court.

For a record, the parties filed the comments which have been filed before the Commission and the orders and memoranda of the Commission.

There is a second volume of the appendix, appendix Volume 2 which counsel on the other side assures is a part of the record but I wonder.

It is at least an odd sort of record.

It consists of factual material not otherwise in the record which was included in the brief which was filed before the Court of Appeals.

There was a motion for leave to file this brief as an exhibit and this motion was granted by a judge of the Court.

I don't suppose that makes it a part of the record.

And then there was insistence that we include it in the record here and we did not think it worth making an issue of it.

Whatever this material is, I would point out that it was never submitted to the Commission.

The Commission did not have the benefit of whatever value it may have.

In any event, almost without exception, it is irrelevant here for the several broadcast recounted would all or nearly all be accepted from the personal attack rules by the exceptions which the Commission has included in those rules in an effort to be sure that the burden on broadcasters and the spontaneity of their handling of news programs and commentary should be as great as possible.

And I would mention too that the footnotes in the several briefs contain references to program which have appeared since the rules were promulgated and with no indication that the rules are applicable to this or that anyone is seeking to apply the rules to them.

Now, the whole proceeding puzzles me, no one has yet been ordered to do anything.

No penalties or forfeitures have been imposed.

There are no specific concrete facts before the Court.

The facts just float around and this morning about five minutes before the argument, I was handed a transcript of a broadcast of January 28, 1969 and told that it would be referred to in the argument.

I haven't had a chance to read it.

Justice Byron R. White: Mr. Solicitor General, would it change your argument at all if the Commission did think that all of these broadcasts contained in that appendix were subject in the rules?

Mr. Griswold: Well, Mr. Justice, it is perfectly plain that almost without exception, nothing in the appendix is subject to the rules.

Justice Byron R. White: Well, let us assume that it was -- do you say, perfectly plain.

I guess there is a party's claim to the contrary?

Mr. Griswold: I would like to know the facts of a concrete specific case.

Justice Byron R. White: But they do -- the parties do -- the parties presented as representatives, the kind of things that would be covered I take it?

Mr. Griswold: But --

Justice Byron R. White: I know you disagree that they -- that it would but there is certainly some?

Mr. Griswold: They don't contend now Mr. Justice that these things would be covered by the present rule.

This is --

Justice Byron R. White: What about the -- there is some discussion that a -- the deal with the statute that the Sevareid Broadcast would be covered by the rule.

Mr. Griswold: The Sevareid Broadcast would not be covered by other rule if they were included in a bona fide news program as most of them are.

Justice Byron R. White: I know if -- I know, I know --

Mr. Griswold: The -- this --

Justice Byron R. White: I know that, I know that but if -- but otherwise if they weren't they would be covered, do you agree with that?

Mr. Griswold: The Sevareid interview programs would be covered and the one that was handed to me this morning is a Sevareid interview program.

But even there, I would like to know what the Commission does about it.

Justice Byron R. White: Well, I -- the real point of asking was whether or not it would change your argument and if it appeared that large numbers in a -- of a -- of the regular -- a large amount of the regular content of a television broadcast were covered by these rules.

Did you think the volume, the burden, the extent of the burden, the -- is really a matter for --

Mr. Griswold: Well, yes, of course Mr. Justice.

The extent of the burden would be a matter for consideration.

I think we ought to have facts about that and I think we ought to know what the types of programs are.

What the nature of the response required is, what the burden is of meeting it.

We have nothing of that sort here.

The thing that gives me great concern about the way this case has come up is that it makes this great rule.

This bona fide effort to deal with the problem that people have been wrestling with for 40 years, it makes us subject to a Parade of Horribles.

Justice Byron R. White: Well, yes but I supposed that people are entitled to a review of rulemaking proceedings, aren't they?

Mr. Griswold: They are entitled to do a good deal more than they used to be entitled to.

Justice Byron R. White: Well, it was.

Mr. Griswold: It still seems to me that --

Justice Byron R. White: The law provides for it I suppose.

I guess it doesn't require the Court to deal with -- speculate --

Mr. Griswold: I think this is a nice example of the reason why in cases of this type and I repeat, I think this is rather different from Abbott Laboratories which is a pretty narrow specific thing in cases of this type, where the validity of a regulation should not be determined in vacuo, should not be determined with respect to any conceivable facts which is in effect what is sought to be done by this and by bringing in the January Sevareid Broadcast but should be determined on the basis of specific facts.

We ought not to have to consider the validity of this regulation in terms of the worst that can happen but rather in terms of what does happen in a particular case.

Justice Byron R. White: Don't you think it is relevant to -- how the people subject to them might understand this language in this --

Mr. Griswold: Oh!

Yes, Mr. Justice.

I think it's an element that even so I would like to have that developed in terms of specific fact that at the very least it seems to me that a rule of this start shouldn't be simply stricken down as the Seventh Circuit did without any specific facts and simply because the fears that can be arouse by the -- a parade of the most difficult cases makes it apparent that there are serious problems here.

This is an area in which thoughtful people have been groping for answers for nearly 40 years with some slow but steady growth and development over that period.

First, it was very general of the Fairness Doctrine.

Then it was spelled out in more detail in the Fairness Primer which is involved in the Red Lion case.

Now, the Commission has thought it wise put it into a formal rule.

Not because it's cracking the whip but because that is good administration.

That is the way to let the broadcasters know just what the Commission understands their responsibilities to be.

And I repeat they have responsibilities which they do not always seem to recognize in their briefs.

It may be that experience in concrete cases will show that the rule needs to be modified in this detail or that.

The lines have been narrowed but the Commission is still active and alert.

It will watch the situation and will administer the rule with care and with skill based on its experience and with its devotion to the public interest.

If in some particular case the Commission reaches a conclusion that goes too far, there will always be opportunity for judicial review of that case based on those facts and with the Commission specific ruling on those facts before the Court.

This is not our petition for review.

We do not seek a declaratory judgment that this rule is good no matter what but equally we do not think that it should be held bad no matter what, without any specific facts and without any ruling or interpretation of the rule by the Commission based on those facts.

Justice Hugo L. Black: May I ask you if your argument boiled down to the fact if you do not -- you think the rule should not be judged as to its validity on its face.

Mr. Griswold: It should not be judged as to it's --?

Justice Hugo L. Black: Validity on its face.

Mr. Griswold: On its face.

Yes, I think that is true Mr. Justice.

I think that this is peculiarly the kind of a rule and a situation where -- obviously, is not careless or thoughtless or arbitrary.

It is obviously been carefully formulated and where its validity should be determined in terms of what actually happens under it rather than in terms of what somebody might suppose could happen taking the worst possible circumstances which come up.

Justice Byron R. White: Yes, but the -- I suppose the most fundamental argument on the other side is that this is really promote self-censorship as the very words and breadth as the rule will cause licensees to resort as to a "bland diet".

Mr. Griswold: Well, that's the nature of the issue and if that were the way the rule operated, it would certainly be a serious matter.

Our position is just to the contrary that what the rule does is to promote to the opportunity of the public to hear all sides and to have a vigorous, robust debate which they will not have if the station can put out personal attacks and then shut up and then say, "No, you can't do anything about it whether you pay or not.”

Justice Byron R. White: I take it the Commission has expressed the judgment that you've just stated.

Mr. Griswold: Yes, Mr. Justice that's -- that is --

Justice Byron R. White: And its -- in its experience or in its judgment, this kind of a rule will not prevent stations in the first place from putting out or from discussing controversial issues.

Mr. Griswold: That has been the experience under the Fairness Doctrine.

It has been the experience under the Fairness Primer with the only minor number of problems.

I can't say that we really have any experience under the rules because among other things --

Justice Byron R. White: But that at least, that was of Commission's prediction.

Mr. Griswold: That was the Commission's prediction, hope and expectation.

And I think that experience over a long period shows that at least the major broadcasters are energetic, debate and discussion as a part of what helps them in the competition situation and I find it difficult to think that this rule should not have a chance to show that it can promote public discussion and understanding merely because in some special circumstances it is thought that it may present some problems.

This is not the first time that the broadcasting industry has raised great threats I referred already to the brief filed by the Office of Communication of the United Church of Christ and in the appendix to that brief, there is set out the introduction to a pamphlet which was put out by the Columbia Broadcasting System at the time the chain broadcasting rules were before the Court and they then put in the strongest terms that if the chain broadcasting rules were adopted, the public would lose all the benefits of radio and so on and it's perfectly plain that since those rules were adopted and approved by this Court that the industry and the public have both benefited greatly from them.

Justice Potter Stewart: Mr. Solicitor General, are you going to talk specifically about the editorializing rules?

Mr. Griswold: Yes, if I have time when I get through the rest that is certainly a part of our argument.

There's never been a case like this before the Court.

There are other cases and both sides confine some useful quotations in those other cases.

All of which, however, are concerned with the problems somewhat different from that involved here.

We get considerable comfort from portions of this Court's decisions in Nelson Brothers, University of Georgia, Pottsville Broadcasting and particularly National Broadcasting Company against the United States and this are set out on pages 42 and 44 of our brief.

The other side finds comfort in Mills against Alabama and Near against Minnesota.

Most of those cases were newspaper cases.

I've already tried to argue that it does not follow that broadcast regulation is exactly the same.

Mills involved absolute restraint on publication said, "You can't print it.

It is not involved here.”

And Near involved restraint in substance and a large measure of control over future publication in any event.

But I would particularly rely on the fact that both cases involved newspapers and did not involved any aspect of the development of the consequences of the Fairness Doctrine which is inherent and implicit in a medium which uses a public facility and is licensed to do so under standards of public interest, convenience and necessity.

It's true that the broadcasters are not a public utility and Congress made that decision and I think rightly in 1927.

But they are a public facility and needn't have public protection and they have responsibilities arising from those facts which are not shared by newspapers or others who communicate through print.

The Columbia Broadcasting System in their brief say that the Fairness Doctrine is not involved in this case.

But we think it lies behind the whole problem.

It is an aspect of the fact that the broadcaster must serve the public interest if he is to have and retain a license.

Let us suppose for example a station which obtains a license and simply does not operate.

Surely, its license will be revoked.

Does that violate the First Amendment?

Isn't there a freedom not to speak as well as a freedom to speak?

Not I venture to think if you are a radio or television licensee.

Or suppose that a station decides that it will broadcast only obscenity or only readings from books such as Fanny Hill which have been held to be protected in print by the First Amendment.

Would such a station serve the public interest within the Federal Communication's Act?

And would it violate the First Amendment to say that it did not and to revoke its license?

Or to refuse to renew it when it has expired?

It may be said that this illustrations deal with the public interest but not with fairness.

Let me move on then to such cases as the Office of Communication of the United Church of Christ against the Federal Communications Commission which was decided not long ago by the Court of Appeals of the District of Columbia in a careful and thoughtful opinion.

That case involved a television station in Jackson, Mississippi which it was alleged, discriminated in many ways against the nearly 50% of the persons in its listening area who are Negroes.

I need not detail the discriminations, they can be readily imagined.

Anyone at Tougaloo College in the Jackson area was surely aware of them.

The Office of Communications of the United Church of Christ to its credit produced the considerable amount of money and energy which was required to do something about it.

The Commission held that they couldn't intervene but the Commission did renew the station's license for one year only specifically stated to be a trial period to see if they had mended their ways.

On appeal to the Court of Appeals for the District of Columbia, everything was reversed.

The Court held that the Office of Communications was entitled to intervene that it had a viewpoint and interest which was relevant in determining the question whether the station was being operated in the public interest and the Court also held that the question of the renewal of the license should be decided on the basis of full hearing and not on the basis of what was done during a trial renewal of one year.

Justice John M. Harlan: What is the term of these licenses?

Mr. Griswold: Three years is the normal term.

The Commission can make it shorter.

It cannot make it longer and it must be reconsidered at least every three years.

This hearing has now been held and the Commission has granted a full renewal after a full hearing and the case is once more on its way to the Court of Appeals.

It's also clear that there has been a great change in the program practices of this station.

I find it hard to believe that this has violated the First Amendment.

It has rather been a step toward the effectuation of the First Amendment, a recognition of the obligation which a licensee undertakes when he is granted an exclusive right to utilize a valuable public facility.

The problem involved in that case is I submit not different in the last analysis from that involved here in the development of the personal attack rules as a direct outgrowth and development from the Fairness Doctrine which is implicit in the concept of public regulations of broadcasting.

Now, I would like to point out and I think this is of great importance here.

The regulation involved in this case is entirely neutral with respect to the content of speech.

It applies in exactly the same way and requires the exactly the same action from the broadcaster regardless of what views are expressed in the broadcast giving the right to the reply.

Justice Potter Stewart: Those regulations has identical application to both radio and television?

Mr. Griswold: Yes, Mr. Justice.

Justice Potter Stewart: There are no differences?

Mr. Griswold: There is no difference between radio and television.

Justice Potter Stewart: Television is so much more local, isn't it as a generality?

Mr. Griswold: Television is much more dominated by the network.

Justice Potter Stewart: By the chains but each station has a --

Mr. Griswold: Which tend to give it a broader outlook --

Justice Potter Stewart: Yes.

But except for CATV, each particular station has a --

Mr. Griswold: Television has a --

Justice Potter Stewart: -- less diameter?

Mr. Griswold: -- a particular television station has a limited service area but that is exactly the same or substantially the same as the limit of FM radio stations.

AM radio stations can have a very wide range and with satellite communication and cable television and so on the television stations are not as clearly to be distinguished as they used to be.

The Government does not by this regulation support any point of view except of course the central idea of the First Amendment that there should be an opportunity for all points of view to be heard.

An important corollary of these regulations is that they strongly reduce the incentive for the Government to select its broadcast licensees in ways that might be difficult to detect on the basis of the political or other views that they are likely to expressed or favor in their broadcasting.

Now, this too serves the policies of the First Amendment.

An analogy may be found in arguments in this Court.

It has been my observation that when one counsel speaks, there is always an opportunity for one to speak on the other side and exactly the same amount of time made available.

And if as happened in this case a counsel seek to have the case taken of the summary docket and put on the regular docket so that they may have an hour on the side then an hour is given to the other side.

This might be regarded as inhibition upon his asking for additional time for himself.

An inhibition quite comparable to that complained of by our opponents in these cases except that it's the Court's time rather than the broadcaster's time which is being consumed.

But the inhibition is obviously justified on the basis of considerations of fairness and of values reflected in the First Amendment which favor an opportunity for both sides of controversies to be heard.

As I contended in the argument in the Red Lion case, our opponents in these cases seek to put us in opposition to the First Amendment and we do not accept that position.

I suggest that on analysis, it is the Government and the Federal Communications Commission which are the real champions of the First Amendment here.

The Commission's regulation served to foster important First Amendment values which our opponents would have the Court sacrifice in the guise of upholding the narrow and financially motivated claim to unfettered control of airwaves that had been licensed to their custody.

This argument is I submit fully supported by this Court's recent decision in the Citizens Publishing Company case decided on March 10.

The Court there quoted from the Associated Press opinion in explaining the beneficial effects of free speech in the application of antitrust laws to the communications media and I was quite struck when this case came down with the closeness of the application of that quotation utilized by this Court only three weeks ago.

It would be strange indeed if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the Government was without power to protect that freedom.

The First Amendment from providing an argument against application of the Sherman Act and here I would simply read it the personal attack rules, here provides powerful reasons to the contrary.

That Amendment rest on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public that a free press is a condition of a free society and there is more of the quotation very much of which is relevant.

This view is also supported by the venerated conquering opinion of Mr. Justice Brandeis in Whitney against California which emphasizes the great reliance upon the value of counter argument that is implicit in our protection of free speech in the first place.

The realities of the broadcasting industry have led the Federal Communications Commission entirely properly in our view to take the steps needed in these regulations to make the opportunities for counter argument a reality in this important communications medium.

In the associated press case, the applicability of the antitrust laws to the new services and its members in no way depended on the content of their new stories.

This was also true in the Citizens Publishing case this term to which I have just referred.

The restraints of trade in those cases would have been equally unlawful if all the editorials and new stories being published had taken the other point of view.

The Court in those cases upheld the Government's right to regulate these news media in the interest of legitimate antitrust objectives in a context in which the regulation was entirely neutral with respect to the content of what was being published and in which no one was being forbidden from publishing anything while the application of the antitrust laws may have reduced profits.

This is also true of the application of the Fair Labor Standards Act or the Income Tax to newspapers and broadcasters.

In this case, another communications medium is being regulated in pursuit of an equally valid government objective and in -- and again in a way that does not favor or disfavor any particular content of speech and which does not forbid the saying of anything.

The policies of the First Amendment not only favor access to the media of purveyors of all points of view but the Court has specifically recognized the First Amendment right in the recipient or listener not to have the channels of communication to him stay so as to favor or disfavor a particular point of view.

This was established in the case of Lamont against the Postmaster General cited at page 75 of our brief in which I am inclined to think on reflection and preparing this argument is perhaps one of the most important cases which lead in support of our position here.

It's true that the Court has stricken down regulations in some cases which were superficially neutral.

For example, the complete banning of methods of communication such as soundtracks or handbills tends to discriminate against those espousing unpopular ideas and who do not have easy access to the commercial communications media.

Similarly, requirements of associational disclosure can -- to bring about burdens on those associated with groups that are unpopular in the community and thus to discourage association with such groups.

Much the same can be said about Taley against California where the court upheld a right to anonymity in the dissemination of political literature.

There is also an important element of this in the New York Times against Sullivan line of cases because a large liable verdict tends to indicate that the plaintiff in his views are held in high esteem in the community and the contrary about the defendant while it is difficult for a truly unpopular plaintiff to win much of a liable verdict against the popular defendant.

Yet the main office of the courts under the First Amendment is the right to -- is to protect the right to expressed views that are not already popular and accepted in the community and I suggest that that is the fundamental basis behind New York Times against Sullivan.

Now, we come to the editorializing aspect of the rules which is discussed on pages 78 to 82 of our brief.

Here again, I'm a little puzzled because the principal -- some of the principal briefs filed in the case are filed by the networks and the networks do not editorialize whether the Radio Television News Director Association engages in televising, I don't know.

Here again, we have no facts, nothing to indicate that they do or do not.

But in essence the editorializing rules are much the same as the personal attack rules they called for opportunity to reply.

They are an exemplification of the Fairness Doctrine.

They are a means of keeping open the channels of communication of facilitating the objective of the First Amendment which is to provide an opportunity for the public to hear and to learn.

Justice Potter Stewart: They apply Mr. Solicitor General, the rule applies as I read it here only with respect to a candidate not with respect to an issue like a bond issue or a tax levy --

Mr. Griswold: They apply only with respect to a candidate, that is right and they do not -- it does not apply to a public issue --

Justice Potter Stewart: Whether or not any license is involved?

Mr. Griswold: Some control safe streets and other things that people might want to discuss about.

It does relate simply to candidates and thus provide an opportunity for candidates to reply if one or another is endorsed in a --

Justice Potter Stewart: How does it work?

How would it work in an election like was held this week in Los Angeles where I think there were about 10 candidates.

Mr. Griswold: I think it might be very difficult.

Justice Potter Stewart: If the -- if the station endorses a candidate the result would be that nine other people get on the air free to attack him.

So I should think the station would endorse its enemy?

Mr. Griswold: I'm not sure whether -- well I think it is a problem when there are multiple candidates.

I am -- we do not know what the Commission's position would be as to the amount of time which would be available for other candidates and there are some times are I thought it was 17 candidates in Los Angeles, and I think it is a very serious problem and it may well be that the Commission ought to give further consideration to that sort of thing.

What I am really --

Justice Potter Stewart: It doesn't explicitly specify equal time, does it?

Mr. Griswold: No, it does not very specifically --

Justice Potter Stewart: None of these rules.

Mr. Griswold: It does not specify equal time.

Justice Potter Stewart: Neither one of these rules?

Mr. Griswold: It is -- it is whatever is required by the overall scope of the Fairness Doctrine.

Justice Potter Stewart: A reasonable opportunity then to respond?

Mr. Griswold: A reasonable opportunity to respond.

Justice Hugo L. Black: Is there not --

Mr. Griswold: In the -- in the --

Justice Hugo L. Black: May I ask you one question?

Mr. Griswold: Yes, Mr. Justice.

Justice Hugo L. Black: In the 1927 Act, its successor, I believe was 1930 have a similar provision in it, the statute itself?

Mr. Griswold: The statute of?

Justice Hugo L. Black: Radio Control?

Mr. Griswold: The Radio Act of 1927 and the Federal Communications Act of 1934 do have the equal time provision which allows the candidate which provides that if the station sells time or gives time to a candidate, it must give equal time on the same terms to every other candidate and that is the Equal Time Provision which was then amended in 1959 to exclude bona fide news broadcast essentially the same exclusions which are made in this regulation.

It was suspended in the 1960 campaign but was enforced and followed in 1964 and in 1968 is it seems to us the fundamental recognition by Congress in the most sensitive area of the applicability of the Fairness Doctrine to Radio and Television Broadcasting and it is with respect to the Amendment in 1959 which accepted news programs that Congress expressly included a provision saying that nothing there should protect radio and television stations from their obligation to operate in the public interest which we contend is a legislative, congressional recognition of the validity in the application of the Fairness Doctrine.

Justice Hugo L. Black: Did those Acts disclaim any purpose to allow censorship of any kind?

Mr. Griswold: No, Mr. Justice, on the contrary as it is our position here, it is free to up, it is to open the channels communication rather than to control them or dominate them or direct them.

Justice Hugo L. Black: (Voice Overlap) the opinion that either they are passed in one of those laws or there were offered provisions to the effect that there should be no censorship exercised?

Mr. Griswold: There is such a provision in the Federal Communications Act today and we don't for the moment concede that we are seeking to employ censorship.

Justice Byron R. White: And there was then?

Mr. Griswold: There was then, yes.

There has been from the beginning.

Justice Hugo L. Black: I would assume that indicated probably that the Congress didn't consider that requiring equal time for censorship?

Mr. Griswold: I think it is quite plain that the Congress for more than 40 years has not regarded a requirement of equal time as censorship.

Quite contrary, it is a freeing of the channel's communication.

We are fighting for the First Amendment here.

I hate to yield that the broadcasters whose interest may not be as broad as ours.

I would like to reserve my time for rebuttal.

Chief Justice Earl Warren: You may.

General Cox.

Argument of Archibald Cox

Mr. Archibald Cox: Mr. Chief Justice, may it please the Court.

At the outset of the -- my argument, there are three semantic differences, perhaps I should add a fourth now between the point of view expressed by the Solicitor General and the point of view that we submit to the Court.

The first is that this case involves the personal attack and political editorial rules and does not involve a general attack on the Fairness Doctrine.

The rules are very precise.

They provide that if a broadcaster expresses a particular kind of idea, if he criticizes a public official in a way that may be regarded as an attack upon his honesty, character, integrity, or like personal qualities whatever that may mean then certain obligations attached to it and we submit to the Court and I will try to show in more detail in my argument that those obligations attached to the expression of a particular idea or kind of idea, the one that is constitutionally protected, are much more onerous than any obligations imposed by the Fairness Doctrine.

And I may say that this is true of those kinds of programs that are characterized as exempt under the regulation that the Commission has a special brand of the Fairness Doctrine and one that the Solicitor General in the statement the Solicitor General would have read if he had trouble to read paragraph 5 to the Court, that said, “Unlike the Fairness Doctrine in general, there are special obligations where there is something that can be characterized as a personal attack even in a news program.”

Now, the second semantic difference goes to our reading of history.

In fact the other two go to our reading of history.

We agree that the -- there are certain expressions of regulation of the content of broadcast to be found in the Commission's administration of the Communications Act.

But I think when you come to read those carefully, you will find that they are expressed -- they are based upon a view of the First Amendment's application to broadcast which is simply out of keeping with modern interpretation of the constitutional doctrine of the First Amendment and out of keeping with the current facts.

The best example is the Mayflower Role which prohibited a broadcast journalist from taking an editorial position on anything, a position which surely would not be sustained by this Court today.

Indeed, Judge Bazelon recently observed in the Court of Appeals for the District of Columbia that it may very well be that some vulnerable FCC policies cannot withstand constitutional scrutiny in the light of contemporary understanding of the First Amendment and the modern proliferation of broadcasting outfits.

The third thing which I would mention now simply to draw the Court's attention and I shall develop it at more length later is that also the Congress and this Court have of course sustained certain regulation of broadcasting and although Congress has spoken in the broad terms public interest that the Solicitor General emphasizes.

Both Congress and this Court have been very careful to distinguish between regulation that has to do with avoiding interference, securing competent licensees dealing with the structure of the industry as in the chain broadcasting cases on the one side and regulation that lays hold of what is said on the other side.

That's not always a clear line but I would emphasize that in the history, both sides of the line come through and not just the side mentioned by the Solicitor General.

The clearest expression is by Congress itself for it declared in Section 326, “Nothing in this Act shall be understood or construed to give the Commission the power censorship.

And no regulation or condition shall be promulgated by the Commission which will interfere with the right of free speech by broadcast communication.”

Justice Hugo L. Black: When did that appear, the Act, the first time?

When was that first in the Act?

Mr. Archibald Cox: I think -- I'm not sure whether that was in the Radio Act of 1927.

It certainly came in the Communications Act of 1934.

This Court in the Sanders Brothers case noted the licensing power on the one hand but said that on the other hand, the Commission was given no control over progress and I would mention now too although I shall elaborate it and give you the language later that Congress on three occasions, the Congress on two and the President on one occasion, rejected in the legislative process attempts to put broadcasters subject to the duties essentially the same kind of duties that the Commission now seeks to impose in these regulations.

My other semantic difference for the Solicitor General is of course one mentioned by Justice White and that is that nothing has come to be better settled than that regulations of speech are to be judged on their face by their tendency and that the Court will not require the nation to wait until a test case arises before it examines and if they are unconstitutional strikes down such regulation.

And that proposition is so well settled that I don't stop to develop.

Justice Byron R. White: That still leaves the question now of what the -- even if you examine among their face --

Mr. Archibald Cox: We must of course go ahead and do so and show what the tendency will be and I -- I propose to build it.

Justice Byron R. White: And that's -- and in -- and at what -- under what circumstances or from what evidence you conclude what the tendency will be?

Mr. Archibald Cox: Well, I think we can show the Court that the tendency will be -- is bound to be highly restrictive especially in terms of self-censorship but I realize that's a burden that I at least in the formal sense that I have to go forward and carry.

Justice Byron R. White: And you have to overturn the FCC in that respect?

Mr. Archibald Cox: I would think this was a question on which the Court would make up its own mind on that there was not presumption in favor of the FCC ruling.

We have to persuade the Court to reach a different conclusion but I think there's no presumption in its favor.

Now, we submit that these regulations are invalid upon two primary grounds.

First, we say that they unconstitutionally abridged the freedom of speech and press guaranteed by the First Amendment and second that they are invalid because they are beyond the statutory authority of the Communications Commission.

I shall deal with the constitutional issue first even though the Court may never reach it or because it can and I'm inclined to think should decide the case on the statutory ground.

But I deal with it first because the seriousness of the constitutional question is in our judgment an important element in resolving the issue of statutory interpretation.

Our constitutional argument proceeds in a series of propositions.

The early ones of which seem to me to be not seriously controversial but first we say this case involves freedom of the press.

The electronic media are not simply carriers as they have evolved in this country and that may be one difference between what President Hoover was thinking of in 1924 and the situation as it exists today.

Broadcasters' activities in the field of public affairs are virtually indistinguishable from those of newspapers.

They have editors, producers, reporters, their own news services which add to the new services of UPI and the AP.

Their functions I submit make them one of the very instruments which this Court characterized in Mills and Alabama as agencies which the framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.

Second, I would point out that the challenge regulations lay hold of speech itself.

This is the fact which distinguishes every other case involving broadcasting that has come before this Court because they all had to do with the economic regulation of the industry.

We're not talking about Fair Labor Standards and Labor Relations or the antitrust laws here.

We're talking about a regulation which says as I indicated earlier that if you expressed ideas for certain character, ideas which can be described as an attack on somebody's integrity or honesty or other personal qualities.

Or if you put someone on the air who may engage in those attacks, then you run the risk of having to carry certain obligations which are onerous.

But if you stir clear of those ideas, if you prefer blandness to biting criticism of the shabby yourself seeking then you're safe, then you don't have to worry and we think that this is fairly characterized as a regulation of speech itself.

Not only that, but of course the speech that this regulation lays hold of is the kind of speech which this Court characterized in the New York Times case as lying at the very center of the constitutionally protected area of free expression.

By its own terms these regulation applies only when one is discussing questions of public importance.

The speech in the Red Lion case was certainly within the New York Times case and this is true under all the other Commission rulings under the Fairness Doctrine or the Personal Attack Rule which deal with criticisms of public officials for the most part or people engaged in controversy upon public issues.

My third proposition is that the challenge regulations abridge the freedom of speech in ways which unless justify violate the First Amendment.

Inhibition as well as prohibition of protected expression is forbidden by the First Amendment.

That's perfectly clear from cases like Talley and California, Thomas and Collins, Lamont and Postmaster General.

Here, the Commission as I said before says you may not criticize in the way that we would call a personal attack unless you're prepared to scrutinize what has gone out over the air and see whether it contains any personal attacks.

To give notice in the transcript, to offer free time for reply and then engage in the negotiations necessary to arrange the reply disrupting your other program, clearing time on a nationwide hookup if that is necessary.

Now, we submit that attaching these burdens inhibits the broadcast criticism and political editorial in four ways.

I'm going to state them and then I'm going to turn to some concrete example in an effort to show exactly how they would work.

First, attaching this condition deprives the broadcaster of his freedom of journalistic judgment.

Even the most fair-minded manager of a radio or television station will think twice about offering criticism of this kind if the price he must pay is surrendering his judgment as to what is in the public interest.

Justice Byron R. White: I take it, you think it is critical to your case to establish these effect on the content of the program in the first place?

Mr. Archibald Cox: Well, we think that it is an essential part of these regulations if I understand Your Honor that they allowed hold of the content of the program.

Justice Byron R. White: Well, I understand that, I understand that but I think it's critical, if it didn't affect the content of the program?

Mr. Archibald Cox: I would say if --

Justice Byron R. White: It's because it affected them but if it didn't really change the -- have the effect of change in the content of the problem, would you still be making this argument?

Mr. Archibald Cox: There would still be burdens that we were made to carry.

Justice Byron R. White: Exactly but would they violate the First --

Mr. Archibald Cox: Because of saying --

Justice Byron R. White: -- would they violate the First Amendment?

Mr. Archibald Cox: I think it would but I don't think I need to stand on that because I think the problem of self censorship is very rarely.

I suppose that had it been effect in the New York Times case that the New York Times would have paid that judgment rather than suppress the advertisement that was bought that there would still have been held to be a violation of free speech but we do stress and we think that it is fairly clear that this will have an effect on the content.

But I would assert that I can stand on both grounds.

Again, remember that the time taken to complying with this Government order is necessarily taken from the time that broadcaster might think and might reasonably think and even rightly think it was more in the public interest in which it was more in the public interest to broadcast something else.

Next, I would emphasize that there are very considerable administrative burdens and trouble to which these regulations put the broadcasting.

He must scrutinize his scripts and see whether they contain personal attacks.

Consult with lawyers and probably more lawyers in order to find out what duties arise out of a particular program.

This -- the sending out of the notice and the tape which isn't a big thing for enlarged outfit but this regulation applies to little stations too.

It's a matter of clearing time for reply which may vary from no problem at all to a really very troublesome and serious problem including an effect on the goodwill of the audience.

And then there's the matter of negotiating the reply and finally the matter of often defending oneself before a Commission and its staff which has a life and death power over the broadcasters through its control of licensee.

The financial cost of giving the risk that you must give time whenever you put a free swinging controversialist on the air is not inconsiderable and most of all there is the pressure for self-censorship which these things create.

Now, I would like to take a few concrete illustrations to show how as we see it these regulations are bound to work.

Let me call your attention first to a broadcast of Eric Sevareid which appears beginning on page 15 and runs over to page 16 of the record in the second volume, the one that the Solicitor General objects to.

But we offer this simply as examples of how these regulations would work out.

I could make up examples but it's more persuasive to use real ones and that's the reason they bring them into Court.

Mr. Sevareid gave what I think you would agree was an impartial and fair presentation of Henry Luce's contributions to American Journalism.

Toward the end he said, it's on the bottom of page 16, he referred to Time and said the Time strained in every sentence to avoid dullness which often meant straining proof.

Many journalists have always distrusted it.

Nearly all have always read it.

Now, I suppose that that is an attack on an unidentified group, the Time editors and it raises a question about their intellectual integrity and if it were directed at me, I would think that was an attack upon my personal character.

At the time Eric Sevareid said this, he was not subject to any inhibitions.

But considering today if he were confronted with the same situation preparing his evening broadcast at 4 o'clock in the afternoon, what does he do?

Is this a personal attack or isn't it?

Well, he might answer that it is and then he subjects every station that carries this program to all these burdens.

Should he do that or should he trim his sales a bit?

Or maybe he doesn't know.

So what, does he call up his lawyer?

The result, all too often is likely today that Mr. Sevareid will decide, “Well I better not say just what I think.

I better find something that's little safer, a little more bland or remain.”

Of course this is of great concern.

He may decide to transfer to a medium where he would not be subject to this kind of inhibition.

Justice Potter Stewart: I don't see.

Justice Hugo L. Black: Mr. Solicitor General --

Justice Potter Stewart: Excuse me.

Justice Hugo L. Black: -- would it bother you -- you have just stated an instance which is an illustration of why you object to the rule.

Now, would you -- would it bother you to get to that rule where it's printed, tell us the part of it which puts on the burden that you say is censorship?

Mr. Archibald Cox: Not at all, page 6 (a) of the appendix to the RTND brief.

Justice Hugo L. Black: Which we arguably --

Mr. Archibald Cox: RTND, the -- yes, my brief.

That is in the appendix.

Justice Hugo L. Black: What page?

Page 6 what?

Mr. Archibald Cox: Page 6 (a), it's in the very back the next to the last page of the brief.

Justice Hugo L. Black: Alright.

In this I think will be core of your argument against the rule?

Mr. Archibald Cox: It certainly a very important part.

When during a presentation of views on the controversial issue of public importance, an attack is made upon the honesty, character or integrity or like personal qualities of any -- of an identified person or a group.

Now, it would seem to me that the editors of Time Magazine are an identified group and them saying that they strain truth and that many reporters have always distrusted them, attacks because attack means only adversely criticized their integrity or like personal qualities, whatever that may mean.

I don't see how -- I would have thought this was clearly a personal attack but it's enough for my purposes to suggest that it raises terribly serious questions and that because he couldn't be sure, Eric Sevareid would then be put under pressure to tref.

Justice Potter Stewart: Well, except that it wasn't made during the presentation of views on a controversial issue of public importance.

Mr. Archibald Cox: I would think that -- I would think that --

Justice Potter Stewart: It was made on the occasion of the death of Henry Luce.

There's nothing controversial about that.

Mr. Archibald Cox: Well, I would think a discussion -- I would think a discussion of one of our great national magazines and its reliability was an issue of public importance.

I would be amazed if the Commission drew this distinction.

But let me --

Justice Hugo L. Black: Is that all of it now?

Mr. Archibald Cox: That's -- all of this instance Mr. Justice --

Justice Hugo L. Black: What I mean is --

Mr. Archibald Cox: There are many.

Justice Hugo L. Black: The core of your objections.

Mr. Archibald Cox: Well, that is the core of what I have to say with respect to this Sevareid broadcast.

Justice Hugo L. Black: May I ask you one other question?

Now, let's assume that is the core of all them practically that the Board, the Commission has seen fit to provide that when a public attack, attacking an individual's integrity, integrity of a group has been allowed to take place over the television, is it your argument that it is beyond the power of Congress or of its acting subsidiary you might say the Commission to provide any kind of protection such as this for the man?

Mr. Archibald Cox: We say that this regulation is beyond the power of Congress and further that Congress hasn't authorized the Commission to issue it, yes.

Justice Hugo L. Black: That -- that is the real basis of this argument?

Mr. Archibald Cox: Yes, both point,s I would emphasize.

Justice Hugo L. Black: So that there'd be no relief that the man could get from the radio station and permitted him to be personally attacked in his integrity or character.

Mr. Archibald Cox: Well, I wouldn't want to say that no one could think of any other kind of remedy and of course if the attack were not the kind of criticism that is privileged under the New York Times case.

If it were willfully false then we would have an entirely different situation.

But this applies when it is true and a fortiori when it is just a result of a mistake when every word is true.

Let me give you another illustration of --

Justice Hugo L. Black: But how can he get that to the public?

Mr. Archibald Cox: How what?

Justice Hugo L. Black: How could the man attacked have any chance to get in a statement to the public that it's false or that it's not true?

Mr. Archibald Cox: Well, he has access if he is a public figure and this is an issue.

He has access to a number of media that frequently, he will have had an opportunity to present his views on these questions in all kinds of ways and on many occasions.

Justice Byron R. White: And then your example, I suppose, is the obvious (Inaudible).

Mr. Archibald Cox: Yes, yes.

But I would emphasize if merely all these -- I would emphasize Mr. Justice, I don't mean to rush over what you say, I gripped it completely but I would emphasize it in nearly all of these cases.

The other person has ample opportunity to present his views and may have presented it but the Commission automatically comes along and applies this requirement.

Now, let me take a somewhat different aspect of the matter.

In the second half of this document, quite toward the end, at a page that is numbered 55, is this transcript of an appearance of Adam Clayton Powell on “Face the Nation”, a panel show like Meet the Press.

It begins at 55 and I see now a very troublesome passage although there are some that might be thought troublesome until page 59 when Mr. Powell says, “That anyone that has an estranged wife is automatically inherited a life.”

I would suppose that that was a personal attack upon his wife and Mr. Powell was certainly discussing question of public importance at the time of this peruse --

Justice Byron R. White: But where are you?

Justice Potter Stewart: What page?

Mr. Archibald Cox: I mean it's hard to identify because they're -- no, the defect is -- the thinner one, tpward the end and I am on page 59, way much farther long in the second volume.

The second 59, there are two 59s.

Justice Potter Stewart: Thank you.

Mr. Archibald Cox: It was printed unfortunately, I am very sorry for that.

Justice Potter Stewart: Thank you.

Justice Byron R. White: Well, there are two networks.

Mr. Archibald Cox: I am pointing out that the first personal attack is on Mr. Powell's wife.

Now, over on page 53 -- 63, one of the reporters questioning Mr. Powell says, “Does that answer the question?”

It's italicized, “Whether you advocate what Rap Brown and Stokely Carmichael have been advocating, Guerilla-type warfare in the cities of our country?”

That would seem to be a personal attack by Mr. Dean on Stokely Carmichael and Rap Brown.

Now, of course both Rap Brown and Stokely Carmichael have ample access to the press.

Both indeed have been on CBS shows.

I don't think there is any question of fairness in getting their views before the public but nevertheless under these regulations, there would be a very real question of whether CBS did not have to go through all this machinery of giving them time for reply.

Over on page 66, toward the bottom, you will see a reference to Representative Conyers of Detroit who was referred to as a Black Judas.

I would think that that was calling a man a communist is a personal attack as the Commission has said in its opinion on this matter calling one a Black Judas would seem to me to be a personal attack.

Over on page 67, Mr. Powell says that Claude Pepper was one of the number racists on money sellers committee against them.

This again, I should suppose though I can't say without any assurance because the Government persists in ignoring these questions, I should suppose was a personal attack.

If it's a personal attack as the Commission has ruled to say that the John Burke's Society attempted through a front organization to have a standard reference book removed from the library in Visalia, California.

But then I would suppose this kind of thing was rather clearly a personal attack.

And then there's a reference to Judge Matthew Levy for issuing an indecent, obscene, illegal, unilateral article.

I would think that that too might well be a personal attack.

Now the point I'm trying to make is that after this program which was a free live discussion, the work would begin, I'm going through it and going over these things, such questions as Justice Stewart raised as to whether it really was a personal attack.

In many instances might have be taken into account, it might be decided that it wasn't Mr. Justice, I agree.

But the thing is that nobody knows for sure and some of my colleagues think that there are many more personal attacks.

But there would be at least six or eight of them in that single “Face the Nation” program and all those instances in which the obligations would fall upon the network and all CBS stations to carry out the duty of offsetting its programming substituting offers of free time for reply and the replies in the place of what matters which in its editorial judgment it thought were more important.

Chief Justice Earl Warren: We'll recess now.

Mr. Cox, you may continue with your argument.

Mr. Archibald Cox: Thank you, Mr. Chief Justice, may it please the Court.

In using concrete illustrations before the luncheon recess, the point that I was trying to make was that these regulations have -- I think an obvious --

Chief Justice Earl Warren: Have --

Mr. Archibald Cox: I think an obvious tendency to induce a broadcaster and remember we're dealing with local programs as well as the nationwide programs that I used as illustrations.

To press a broadcaster to prefer the bland pundit, to debating critic, to the shabby or self-seeking to avoid putting on programs like “Face the Nation” or their local equivalent Roundup of Reporters on a radio show, free swinging controversialist and diocese moderators or people who would just stare the discussion away from the criticism of government officials and other public figures rather than target it.

And we think that a regulation of which has that kind of impact on the actual conduct of broadcast journalist both because of the burdens and even more because of the pressure toward itself censorship, is a violation of the First Amendment unless it is justified by some overriding public entries.

Chief Justice Earl Warren: Would you mind telling us how far you think that Commission can go in determining whether there has been fairness or not by rules?

Mr. Archibald Cox: Well, we would draw a sharp distinction and I intend to elaborate this a little later between the Fairness Doctrine itself and the personal attack and political editorial regulations.

I am going to explain in just a moment, it comes a little bit a step further out (Voice Overlap) the differences in our position on this.

Chief Justice Earl Warren: Yes.

Mr. Archibald Cox: Because to be quite candid Mr. Chief Justice, I am speaking for a number of parties here.

They take somewhat different positions and they have asked me to state their respective positions on that question as carefully as I can and I can do it barely just one step farther along the way.

Chief Justice Earl Warren: It's alright, on your own time.

Mr. Archibald Cox: As I was saying, we come to the question of justification.

The justification advanced by the Government in its brief is that restrictions upon the normal liberty of the press or normal freedom of expression here are necessary in broadcasting because in order to assure the public, access to what the Government defines as a fair or balanced presentation.

In oral argument, the Solicitor General added as further justification that the Government owns the airwaves and that what it gives is a privilege.

The addition of a -- of those labels or concepts, it seems to me, don't really advance the argument where the Government gives a privilege such as the second class mail privilege.

It still has a duty to administer in ways that don't inhibit expression or inhibit the press.

One could use the second class mail privilege as a way of discouraging magazines from criticizing public officials or other public figure as Justice Brennan said in the Lamont case.

If the Government wishes to withdraw subsidy or privilege, it must do so by means and on terms which do not endanger First Amendment rights and I come back here to the point --

Justice Byron R. White: What if the Government that gave access with the most of its operations to a private party the government say, I just want to make sure that you'd give everybody access to mails?

Mr. Archibald Cox: Well, I think --

Justice Byron R. White: Or just because somebody was offering communications that is in the -- that he say, send in the mail, it's what I want to and that's the end of it?

Mr. Archibald Cox: I will make two points Mr. Justice.

First and that was one I tried to emphasize early in my argument that broadcasters are not merely carriers.

Broadcasters as the industry has grown up and as they are treated by the Communications Act are themselves journalists and they have views to express.

And I would think it very questionable whether --

Justice Byron R. White: Communications to (Inaudible)?

Mr. Archibald Cox: I think there would raise a very different question than this case.

Justice Byron R. White: You don't think this is even a step along the away of (Inaudible)?

Mr. Archibald Cox: Well, I think that the -- I think first they haven't been treated as carriers and if I would emphasize that we deal with the case in this context.

Second, I come back to another point that I attached great importance to.

And that is that this isn't blank, say, taking two hours of time which must be given in the morning to a certain kind of programs that would be established in some way.

This says that the amount of time we take from you depends on what you say in conducting your own journalistic function.

It's not like saying we'll take the use of your lower field so many days a week for a public purpose.

It says we will take a day for every time you criticize the Government or any other public figure.

This is attached to the expression of particular idea.

And I think that distinguishes completely the cases of whether the Government could take two hours a day and say that this shall be available for certain kinds of public interest programs of which will be proscribed -- well, in some nondiscriminatory and constitutional way.

I don't -- I really don't think that case may bother us here --

Justice Byron R. White: Although you --

Mr. Archibald Cox: -- because of the link between the two.

Justice Byron R. White: Although you don't object to the Fairness Doctrine, generally, it tells the broadcaster that you're going to be talking about controversial issues and overall you must --

Mr. Archibald Cox: No, no.

I have --

Justice Byron R. White: (Inaudible)

Mr. Archibald Cox: I am afraid I've misled Your Honor if I have given the impression that that's my position.

Now, let me come -- because I think the argument about public ownership really falls out and we're back to the constitutional problem.

And there's a question whether this justification we're trying to provide the public with a fair and balanced opinion is sufficient.

Now, there are two answers to the argument with the desire to provide fairness and balance in the case of the press is a justification for these regulations.

One, attacks the adequacy of the alleged justification.

This is an argument which is advanced in its strongest form by the National Broadcasting Company.

The National Broadcasting Company says the imposition by an arm of Government of its standard of fairness on the press and the enforcement of that obligation by governmentally imposed sanctions is contrary to the constitutional guarantee of freedom of the press.

This is an argument of which might be put a little less absolutely and indeed in my brief I have put much the same argument a little less absolutely.

As we assert that the basic postulate of the First Amendment is that the public interest in excess to a variety of ideas is to be secured by relying on the diversity and multiplicity of expression.

Developing in the absence of the restraint -- of a restraint and that the Government is unable to show anything here, it would justify departing from that basic posture.

Now, I come to your question Mr. Chief Justice in a sense to where I said I was afraid I have misled Mr. Justice White.

The logic of that argument thus put in question the Fairness Doctrine.

I don't want to mislead you and indeed the logic of my argument that if you do this then you must do that puts in question to some extent of the Fairness Doctrine because that essentially is a part of the doctrine.

Now, I am going to have -- because of the passage of time, I'm going to have to leave the development of this -- that constitutional argument to our briefs.

The essence of it is the Government notions of fairness of impartiality are a violation of the First Amendment that if in some circumstances that may be conjured up.

There is sufficient factual justification for government intervention.

There is no such condition in the broadcasting industry today partly because of the proliferation of stations which are 10 times what they were on the early 1940s.

Partly because broadcasting is only one of many media and indeed it adds to the access people otherwise would have two opinion and if I'm not going through it but if -- when you think about the Red Lion case, you noticed how the dialogue developed across media.

It's a very good indication that this notion of the insulated listener that the Commission hypothesized is not realistic.

Now, the argument that I just mentioned which I say I do refer Your Honors to our briefs is not made by CBS.

CBS' position which all of us joined except that we make the other argument too, emphasizes the peculiarly restrictive character of the challenged regulation and it asserts that even if we suppose that there is a justification for government regulation of the fairness of broadcasters in order to ensure the public access to a diversity of opinion, still these regulations with their peculiarly restrictive character cannot be sustained because they imposed much heavier and more burdens and restrictions than are necessary Mr. Chief Justice to secure fairness and therefore they fall under the least restrictive alternative doctrine.

I hope that that answers your questions as you put it earlier.

Justice Potter Stewart: It doesn't -- as I understood the Chief Justice's question it does not -- it suggest an answer but it doesn't give an explicit answer because as I understood his question was what would you concede -- what would CB -- the CBS argument concede --

Mr. Archibald Cox: About the CBS argument would concede --

Justice Potter Stewart: -- the Government could do --

Mr. Archibald Cox: -- the Fairness Doctrine.

Justice Potter Stewart: -- that FGovernment could do.

Mr. Archibald Cox: The CBS argument would concede the --

Justice Potter Stewart: Just if the general fairness on that balance set determination of the licensed period on the renewal, you have to see how generally fair they've been, is that it?

Mr. Archibald Cox: That's as I understand it, yes.

Chief Justice Earl Warren: Well, then (Inaudible) --

Mr. Archibald Cox: Whether there -- it can be some midterm scrutiny, I'm not sure that they've addressed themselves to that because it isn't involved.

Of course the more precise scrutiny you put, the more it becomes an inhibition on saying particular things and that is an important part of our argument.

Chief Justice Earl Warren: But General, I'd like to ask you the same question I asked Mr. Robb then.

How do you differentiate the two situations in principle not in degree but in principle?

Mr. Archibald Cox: Well, I think -- I wouldn't -- just Mr. Justice Homes once said, “All constitutional differences that end -- come down to differences in degree.”

I think the difference in degree -- difference is in principle and I would submit that they are matters of principle are these Mr. Chief Justice between the Fairness Doctrine and the Personal Attack Rule and let me try and develop them and see if they don't really answer your question.

And then I'm going to again with concrete illustrations attempt to show at least once how they work out.

The principle difference is, and I think there are differences in principle are these.

The Fairness Doctrine looks at overall performance.

The Personal Attack Rule calls virtually for a line by line, item by item script.

Second, the Fairness Doctrine left discretion to the broadcaster in deciding what views deserve presentation and it holds him only to a reasonable judgment.

The Personal Attack Rules apply an automatic rule and they leave the broadcaster no room for judgment in discerning what is a personal attack and when he must give reply also where they do give him the benefit of acting in good faith with respect to imposing any fine for having failed to give notice.

The personal -- the Fairness Doctrine leaves discretion as to whether a reply is needed to achieve fairness.

If so who may most appropriately make the reply.

But the Personal Attack Rule is absolutely automatic.

You must give time, adequate time.

You must give it to a particular individual and where the generality of the Fairness Doctrine made it still less restrict makes it less restrictive when it's coupled with the ideas of reasonableness and good faith.

The vagueness of the terms character, honesty or other personal qualities, personal attack identified goal.

When you apply them item by item, increase the -- in pressures towards self-censorship because if you're wrong these consequences all fall in and the pressure is to stir clear of the dividing line.

Now, I think perhaps a very good illustration Mr. Chief Justice --

Chief Justice Earl Warren: But General before you get to that I was just wondering if it couldn't be said that there is a greater inhibition on free speech where a station is permitted to go along for three years under the blank of it -- for the length of its franchise, say what it wants, do what it wants and then at the end of the three years, risk the loss of the franchise because in the opinion of the Federal Communications Commission, it had not been fair with people throughout its --

Mr. Archibald Cox: If the station --

Chief Justice Earl Warren: -- because that would actually be perhaps a censorship because of what they thought and how they acted in connection with their First Amendment rights where in the specific instance all they would have to do would be to grab the equal time and they'd be free of that obligation?

Mr. Archibald Cox: That's true but the granting -- the equal time I suggest and that determining whether equal time must be granted and they're arranging to give it are far more burdensome than simply saying grant the equal time suggest.

And it's the elements of discretion in the Fairness Doctrine and simply the requirement that you act in good faith and being left judgment as to how you present the opposing points of view which give that flexibility and make it much easier to comply with.

Let met take as an illustration if I may, it proves the handling of a program that appeared on January 27 or January 28, an interview which would be on the non-exempt category between Eric Sevareid and Eric Hoffer.

Justice Potter Stewart: Is the one that the Solicitor General told us you were going to --

Mr. Archibald Cox: Yes, I didn't want to just to fight him --

Justice Potter Stewart: You told him, you're going to talk about?

Mr. Archibald Cox: This -- Hoffer is a controversial character and he speaks in a controversial manner.

Following this program in order to it have comply with the notion of fairness, CBS a week later, had four columnists comment on Hoffer and his program gave each I would judge two or three minutes.

One of them called him a garrulous old war fret and went on to criticize him.

Another was a --

Justice Potter Stewart: This is Eric Hoffer?

Mr. Archibald Cox: Yes and Eric Sevareid was interviewing him.

Justice Potter Stewart: Yes.

Not James Hoffer?

Mr. Archibald Cox: No, no, no, excuse me.

I've fallen into mixing my R's and A's, I'm sorry.

The four were columnists of different points of view.

Mario Jimenez who said he would be dangerous if he were younger.

William Buckley who said he was fine; a representative of CORE, Roy Innis who said that he was a racist but he was an honest man and he would like the opportunity to convert.

So there were a variety of appraisals of Hoffer.

Now, that would seem to me to cover the notion of fairness but under this regulation, one would -- after the tape was made or if it were live broadcast it was a mistake that if it were a live broadcast you've had to go over the whole thing.

Well, it gets off to a start where I can't find very many doubts but pretty soon one finds Eric Sevareid saying we have an intellectual running for president last spring and summer and Senator McCarthy.

He doesn't think much of you as a philosopher, what do you think about him?

And Hoffer said well, I didn't read what he said.

I'll tell you one thing.

I've always thought the country is lucky.

We would have been -- we were lucky when that so and so didn't get elected president.

You'd have a yogi sitting in the White House bumbling under his goddamn nose there, see.

And he referred to Senator McCarthy as a so and so and a yogi mumbling.

Perhaps, a personal attack, perhaps not then he went on and referred to him as vain and out of merit.

I would think one would have to mark that up as a personal attack in Senator McCarthy time for reply.

Then comes a rather interesting and puzzling one where Hoffer referred to this young McCarthy, I -- says the most treacherous people in the world.

Well, is that an identified group to whom you give notice?

If I were the lawyer and they consulted me, I think I'd say well let's go on, we'll come back to that one later.

Justice Thurgood Marshall: But General, what happens in the rules if the person is given the time and in defending himself he maligns the maligner, does he --

Mr. Archibald Cox: I --

Justice Thurgood Marshall: Does the original man (Voice Overlap)?

Mr. Archibald Cox: If it's in a new way, I assume that the original man now has to have an opportunity to reply and certainly and a third person that is attacking in the reply has to have time to reply and that actually happen to this instance.

Some of the commentators on Hoffer maligned third persons.

So, if we lived up to the Personal Attack Rule we'd have to give them time for reply.

Now, in this instance I go on, it gets on a little further with nothing that would seem to be seriously questionable.

But somewhat later, Eric Sevareid said, “Do you see any of these young Negro leaders coming up that strikes you as something in part?

Hoffer, “Phony, phony, look at that less begotten Cleaver, a sewer rat if there ever was one talking about soul and eyes, it's all on manure if you ask me.”

Well that's what I came up for personal attack and the right to reply if they can find him it.

Then although Cleaver has had plenty of opportunity to state his view and also they were these comic then it goes and criticizes the Barristers Club of San Francisco for being cowardly in accepting Cleaver's address to them in the party.

And I suppose the Barristers Club of San Francisco would be entitled to come in and then toward the end, there is a reference to Arthur M. Schlesinger, Jr. saying that the trouble with him is he has had to live with Schlesinger all his life.

Whether that's a personal attack or not, I don't know.

Justice Byron R. White: Well, would it change --

Mr. Archibald Cox: But I would --

Justice Byron R. White: Would it change your argument if the Commission had just said in his rules that if anybody slanders anyone?

Mr. Archibald Cox: Well, then I would have a much different case to deal with.

Justice Byron R. White: That is tougher, you have a harder case?

Mr. Archibald Cox: I would have a harder case.

I would have the problem then which I take it is really not in this case if we take seriously what the Commission says and that is whether what the Commission is trying to do is to provide a private remedy.

But the Commission says it isn't doing that.

It denies any purpose to do that.

Justice Byron R. White: But it has that effect?

Mr. Archibald Cox: Yes, but of course it's a remedy for even telling the truth.

Justice Byron R. White: Not necessary, I take it.

Mr. Archibald Cox: It's unnecessarily broad and it's labeled it truth.

Now, I would, should say just one thing more --

Justice Byron R. White: You'd have a different case but you'd still be making the argument?

Mr. Archibald Cox: Well, I can't tell you whether I would be asked to make the argument in another case.

Justice Byron R. White: Would you make -- would you think the same argument would be sound?

Mr. Archibald Cox: It would -- that case would be distinguishable and I would then have to argue.

Justice Byron R. White: Even (Voice Overlap) --

Mr. Archibald Cox: I would -- well, I don't, I would have a much harder time.

I would then have to argue whether the New York Times case excludes a private remedy for what used to be a tort in the form of a right of reply as distinguished from one of damages and that would be a much harder case than I have here.

I don't think I'd be ashamed to argue that New York Times should be extended to that situation.

I do want to say just a word about the supposedly exempt categories of cases.

Of course the news documentary like the Clu Clux Clan illustration in our exhibit or the Eric Sevareid broadcast that I referred to and I commend to you as broadcast on the death of Jack Ruby which was certainly about a matter of public importance as another illustration.

Those today would be what the Commission calls exempt.

But look what the Commission says on page 232 of the fact record.

Justice Potter Stewart: Exempt because they're part of a news program?

Mr. Archibald Cox: Because they are part of the news program.

Of course it's an incredible distinction because it makes Eric Sevareid's exemption depend whether he broadcast within certain time limits or outside those limits.

It makes the “Face the Nation” exempt because it comes Sunday afternoon.

But if you had a special program on Wednesday morning or Wednesday evening not exempt.

Its -- passes my understanding why those mechanical things should make so much difference.

But the Commission itself said in paragraph 5 on page 232 that the Fairness Doctrine is applicable to this exempt categories then skipping a few lines to after the -- he stresses the considerable discretion the licensee has which says in the case of the personal attack there is not the same latitude as there is in other examples of the Fairness Doctrine.

And over on the top of page 233, that's our revision requires that fairness be met either by the licensee's action of fairly presenting the contrasting viewpoint on the attack issue.

In other words, in the case of the Powell Broadcast, you must run around and get Congressman Conyers, Congressman Pepper, his wife, Judge Levy and the others and read what they have to say or otherwise state what their position is.

Or else you must allow that particular group, the person, the opportunity to respond.

So really this is not very much a difference.

The sum total difference in the case of Powell Broadcast is that instead of having to offer the time to the particular individual you may present what they have to say on the issue, that Powell raised by the attack.

I think the Seventh Circuit was quite right in saying that that's an illusory exemption.

Now, may I just take a minute to address myself to the point which though I've slided it by misjudging my time, we do regard as being a very great importance and that is the point that these regulations are not authorized by the statute.

And the three things which I would particularly emphasize to the Court, first while the statute uses the broad language of public interest, convenience and necessity, those words might be read in the light of Section 326 which speaks in a statutory way of the broadcaster's freedom of speech and the limitation on the Commission.

And also in the light of the fact that not once, not twice but three times the legislative process rejected proposals to put broadcasters under duties which really can't be distinguished from the duties of the Commission has now sought to put them under.

The proposal in 1927 at one time was that there should be an allowance of equal treatment for the discussion of any question affecting the public and the Senate cut that down to equal time for political candidates.

In 1933, the Senate passed a require -- and the House passed a requirement requiring that those speaking in support of are -- in opposition to any candidate for public office or in presentation of views on public questions be given equal time and that was killed by veto and failed to become law.

Now, that's really indistinguishable from the political editorial regulation.

And then in 1933, when the Communications Act was before Congress there was a proposal to broaden Section 315 to allow equal time on any public question to be voted on in any election or by a government agency and that was killed.

And the point that we make is that in this area, which does trespass on journalistic freedom, freedom of speech and press that a Commission should not be found entitled in the very general words of this legislation to impose this kind of restriction until, and I am quoting Justice Roberts in Cantwell and Connecticut, “The policymaking body has given the real central issue careful and purposeful consideration” and all we know about what Congress did is that it rejected essentially similar proposal.

Now, the last point I would make is with reference to the consideration of the Fairness Doctrine in 1959.

At that time, as the Government's brief points out, the Congress amended Section 315, the Equal Time Provision for political candidate so as to exempt certain kinds of news programs.

At the same time, it said nothing in the exemption that shall have the effect of freeing any broadcaster from the duty of fairness and it is argued that this was a ratification of the Fairness Doctrine.

May I just take two minutes to finish this line of thought.

Chief Justice Earl Warren: You may.

Mr. Archibald Cox: Thank you sir.

We don't have to resolve that question here because in explaining the Fairness Doctrine to the congressional committees at that very time the representatives of the Commission emphasized two limitations that this regulations override and ignore its gradual increase in censorship that brings us here.

One of them was the explanation that the broadcaster has full and complete authority subject only to later review of his whole operation as I say will stress to the congressional committees that considered the subject.

And the second statement was that when it comes to the application of the overall Fairness Standard, a licensee can exercise discretion as to which viewpoints are entitled to be expressed and which spokesman are entitled to be heard with the exception of qualified candidates from public office.

Now, neither of those remains the case under the challenged regulation and we think therefore that this certainly doesn't meet the test of the most explicit statutory authorization and that there is certainly has been no careful and purposeful consideration of this kind of a breach of the freedom of the press by the policymaking body and consequently we think under, even if these question statutory interpretation were otherwise fairly balance as maybe it is.

In the cases like Green and McCray, United States and Ruble and others of this kind and the policy of requiring the legislative body to face up to this question before the Court has to decide require holding that these regulations are not authorized by the statute.

Chief Justice Earl Warren: Mr. Solicitor General.

Rebuttal of Griswold

Mr. Griswold: May it please the Court.

My friend, Professor Cox, if I may call him -- well I've known him long as brought before you as I knew he would the extracts from Eric Sevareid's broadcast which are in the Volume 2 of the appendix and the excerpt from “Face the Nation.”

After the luncheon recess, he has pointed out to you that neither one would be affected in any way by this regulation that they are both expressly exempted by the terms of the regulation.

The first one which relating to the death of Henry Luce did not strike me as being an attack but rather as fair comment but it would be exempt in any event because it came in a bona fide newscast and the “Face the Nation” program is exempt because it was a bona fide interview.

Now, those terms are words of art in the broadcasting industry.

The members of the industry know what they mean.

These terms are exactly the same as those under Section 315 and there is a Section 315 Primer which spells them out.

I might point out that under --

Justice Potter Stewart: A news interview you say is a term of art and that would include the program the “Face the Nation?”

Mr. Griswold: The “Face the Nation” program would be covered by the news interview exception.

The Hoffer program is not.

Justice Potter Stewart: Not?

Mr. Griswold: That is a conversation, not a part of what comes within in bona fide news interview.

Mr. Cox said that he couldn't understand the distinction but the distinction which the Commission endeavored to work out was one with respect to timing when you have to move fast and have to get in on the news program including commentary, you are free from this although you're subject the Fairness Rules and documentaries and then a program like the interview with Hoffer which after all was taped and probably done days before it was broadcast.

There is plenty of opportunity to consider thoughtfully and rationally what should be done about it.

Justice Potter Stewart: Well, but do I understand that the program like “Face the Nation” is a news interview?

Mr. Griswold: That is a news interview and is exempt under the --

Justice Potter Stewart: Although that is planned in advance it is not spot news, generally, is it?

Mr. Griswold: No but it is the type of thing where you bring in somebody and it is spontaneous and the station can't plan in advance and doesn't know what's going to appear.

At any rate, it is exempt under this regulation?

There is no question about that.

Justice Potter Stewart: Are there definitions of “news interview?”

Is there definition?

Mr. Griswold: There are not in this regulation but I understand that they are in the Section 315 Primer which does summarize the Commission's rules with respect to the meaning of that terminology and I don't understand that the other side to questions that.

Justice Byron R. White: Well, aren't they left though with the obligation of presenting the other side anyway if they do not have to get in those people themselves?

Mr. Griswold: Yes, Mr. Justice.

Justice Byron R. White: This is why I understood Professor Cox to say?

Mr. Griswold: Not -- not quite.

They are subject to the Fairness Doctrine which requires that overall they must have a balanced program.

Justice Byron R. White: Well there seems -- is certainly a difference of the opinion then as to the meaning of these rules between you and Professor Cox because he said that in this respect, even if they were exempt, they would have to go around to those people find out what their views were and then have the affirmative obligation themselves to present that broadcast?

Mr. Griswold: I didn't understand Mr. Cox is saying that and if he did it goes beyond anything that I understand the regulations to require.

Justice Potter Stewart: Paragraph 5 of the memorandum?

Mr. Griswold: If -- paragraph 5 does impose the standard of the Fairness Doctrine but does not require a --

Justice Byron R. White: Oh, Mr. Solicitor --

Mr. Griswold: The personal attack rule.

Justice Byron R. White: Mr. Solicitor General, then I take it -- would you distinguish for constitutional purposes or for the purposes this argument or even for the purposes of Commission's authority on the statute between a situation where the Commission requires in certain situations that it give the opportunity for certain people to come on the air and say what they wanted and the situation where the broadcaster himself is required in a specific situation to broadcast a certain kind of material?

Mr. Griswold: Yes, I think that is the --

Justice Byron R. White: But would you distinguished between those situationsyou're your -- purposes of your argument?

Mr. Griswold: The Personal Attack Rule does require that a particular person attack to have an opportunity to respond.

Justice Byron R. White: That's right.

I understand you to say that that is wholly acceptable constitutionally under the statute.

But now what if the rule were that if you make a personal attack or you put out a political editorial you must go out and ascertain what the other side of the story is and then you yourself present it, what if that were the rule?

Mr. Griswold: Well, there something close to that in this paragraph 5 but it is not --

Justice Byron R. White: That's what -- that's what --

Mr. Griswold: It is not what you said -- what was said before.

The top of page 233 of the record does our revision affords the licensee considerable leeway in this news type program but it still requires that fairness be met either by the licensee's action of fairly presenting the contrasting viewpoint on the attack issue which he can do in any way he want but it must be fair or by notifying and allowing the person or group attack a reasonable opportunity to respond.

Justice Byron R. White: Well, now again --

Mr. Griswold: No matter is an alternative, one or two ways he can do it.

Justice Byron R. White: Well, again I asked you though what if the licensee were required himself to broadcast information of a certain kind?

Mr. Griswold: Well, I think that's a harder question --

Justice Byron R. White: Like Mr. Cox say, you have a tougher case.

Mr. Griswold: -- that -- that he is -- we come close to it under the Fairness Doctrine.

He is required to be fair and if he doesn't provide fairness through some other spokesman, I think he is under some obligation to provide the fairness himself but I find it, I shrink somewhat obviously.

This is as settle and slippery case, all the way through and I shrink from being caught in a place where I say that he must say something.

Justice Byron R. White: Well, your inference -- your real escape patch on that I take is that he has an alternative.

He has the alternative of calling in the people and themselves or giving them the opportunity to --

Mr. Griswold: Well, that is certainly one of escape patches where ate least there is nothing in this regulation now which requires that action.

Justice Byron R. White: In any circumstance, in every specific circumstance, the licensee is never required himself to draft and broadcast information of a certain kind?

Mr. Griswold: He is never so required and he has never required to broadcasts the Government release which is prepared for him.

There is no requirement as to the specific speech.

Justice Hugo L. Black: Mr. Solicitor General, it seems to me like the argument perhaps for the past three quarters of an hour has been devoted to an attack on the rules as ambiguous and not because of lack of authority or power of the Board to issues to some kind of rule.

What do say about that?

Mr. Griswold: Well --

Justice Hugo L. Black: That seems to me it is just (Voice Overlap) mainly it has been an attack on the language of this rule?

Mr. Griswold: At one time we're told that the rules are vague and we don't know how to comply with him.

At another time we're told that they are arbitrary.

There is only one thing you can do.

You must have the person attacked into respond.

The Commission has said that the rule will not be used as a basis for sanctions against those licensee who in good faith seek to comply with the personal attack principle and in a case decided within the past year arising under the rules, the Commission said that there was no question of imposing a forfeiture under circumstances of this case where the station has made a good faith judgment and has actually do not reflect the flagrant clear cut case of violation for which we stated we would consider in position of a forfeiture.

Incidentally, the Commission has also stated in a case decided within the past few months that the Commission's experience over the years of operation in this area that there has been no indication of inhibition or robust debate by our fairness policies.

Indeed, such debate has been increasing not declining during the last seven years when the Personal Attack Principle was being developed and brought specifically the notice of all licensee that's the story of broadcasting case and I would like to close simply with a reference to the Anti-defamation League case which is cited in the briefs into which reference was made by Mr. Cox.

That is the case where a station broadcast Anti-Semitic material.

The fact was that on complaint, the station offered the Anti-Semitic League an opportunity to reply and they declined that opportunity.

They said we don't want to reply, we want your licensee revoked and the proceeding was heard before the Commission and the Commission determined that on overall balance they had given an opportunity for a response and by other things they had done.

They had complied with the Fairness Rule and that was sustained by the Court of Appeals and this Court denies certiorari just recently.

Justice Hugo L. Black: I want to ask you one other question.

Do you think the issues are here sufficiently precise, sufficiently clear that we can pass on whether or not we should pass on whether or not the Board does have power to issue some kind of regulation, the nature of this one in case of a personal attack, or the issues that are sharply drawn?

Mr. Griswold: I think Mr. Justice that you can pass on the question whether the Commission as part of issues some kind of a regulation.

I would think it will be very unfortunate for the Court to hold in this case on this record that the Commission has no such power.

I can well understand the Court's holding that we don't think this necessarily is the last word and that as cases come up we may need to consider it.

We have a parallel with respect to unfair labor practice which I think is no more vague than the statement in this Personal Attack Rule.

Unfair labor practice occasionally impinges on the area of freedom of speech and the fact that what a person says may be an unfair labor practice undoubtedly has some inhibitory effect but the way that has been worked out is through the years cases come up in which particular facts appeared and somebody said something under certain circumstances and the Court decided whether or not it was an unfair labor practice.

And it seems to me that that is what ought to be done here, that it ought to be left for the working out of the mind through the process of gradual adjudication in which it will be determined whether under certain circumstances, certain statements were personal attacks and whether the action of the Commission in response thereto was an appropriate action under those circumstances.

Print this transcript Transcript: 

Argument of Roger Robb

Chief Justice Earl Warren: Number 2, Red Lion Broadcasting Company Incorporated et al., petitioner, versus Federal Communications Commission et al.

Mr. Robb?

Mr. Robb: May it please the Court, Mr. Chief Justice.

The facts in this case may be briefly stated.

In 1964, the petitioner Red Lion broadcasts a 15-minute program by one Billy James Hargis, in which Mr. Hargis attacked Mr. Fred J. Cook in connection with a book that Mr. Cook had written.

The Hargis talk was part of a series and was carried on a number of other radio stations and Red Lion was paid for the time.

Having learned of the attack, Mr. Cook wrote to Red Lion invoking the so-called personal attack doctrine of the Federal Communications Commission and demanding that he be given time to reply.

In response, Red Lion offered to make time available to Mr. Cook at the station's regular rate, or to give Mr. Cook free time if he stated that he would -- that he could not pay for time.

Mr. Cook rejected the offer of time on a paid basis and refused to state that he could not pay for time.

And he complained to the Federal Communications Commission that Red Lion was in violation of the so-called personal attack doctrine.

The commission ruled that having presented a personal attack on an individual and his honesty, character or integrity in connection with a controversial matter of public importance, Red Lion was bound by the personal attack rule and doctrine.

To inform Mr. Cook, the individual involved of the attack, to send him a tape or a transcript or a summary of the broadcast, and upon his demand to afford him free time to reply.

The commission held that that Mr. Cook was under no obligation to make any showing of inability to pay.

Red Lion was directed it to comply with this ruling.

Red Lion appealed to the Court of Appeals for this circuit which stay in the commission's ruling and this Court thereafter granted certiorari.

I might interpolate that as this Court has recognized, this case is a companion case and closely involved with the next case Number 717, that the Red Lion situation involve a specific application of the rule involved in Number 717.

In the interest of clarity, might be helpful to the outset to suggest certain matters which I conceive are not in issue here.

First, there is no question but that the Hargis broadcast contained a personal attack on Mr. Cook within the meaning of the definition of the F.C.C.

Second, there is no issue as to the truth or falsity of the Hargis broadcast or after the good faith of Hargis in making it or the good faith of Red Lion in broadcasting it.

The ruling of the commission and the opinion of the court below make it clear that these matters where held to be immaterial.

In other words, Red Lion was bound to comply with the commission's order whether the broadcast was true or false, and whether the broadcaster carried it believing it to true or not.

Third and obviously, there is no issue here as to whether Mr. Hargis and his philosophy about Mr. Cook and his are worthy or unworthy.

The issue is simply one of law without regard to the personal beliefs or philosophies of the individuals involved, where otherwise, I might not be here.

Fourth, it is conceded I believe by the Government perhaps with some qualifications that radio and television are part of the press protected by the First Amendment.

Now, I'm informed that Mr. Cox in Number 17-717 will discuss rather fully of the statutory questions involved here.

I would like, if I might, to focus briefly upon the constitutional question.

Simply stated the issue here I suggest is whether or not the order of the Federal Communications Commission to Red Lion imposes a burden of previous restraint upon free speech in the press which is forbidden by the First Amendment.

Does this order imposed on Red Lion a burden?

We submit that obviously it does.

The burden consists of the cost of preparing a tape or a transcript, of sending it to the individual attacked and providing free time, and perhaps and I emphasize this, perhaps providing free time by displacing some other program which is paid for.

This as I understand the Government's brief, they concede that a burden is imposed, but they assert somewhat blandly I think that the cost is not substantial and the burden is not undo.

And likewise Judge Tamm thought that such a burden was not unreasonable.

Now in general, we challenge the proposition that the exercise of First Amendment rights maybe burdened with the financial penalty so long as the Government or the Federal Communications Commission thinks the amount of the penalty is reasonable.

We ask what standard does the Government apply to determine what is reasonable and what is not.

Would the Government say that a large Chicago television station which is required to donate 15 minutes of time for which a commercial sponsor would be charged $2,000.00?

Would the Government say that that station is not subjected to an unreasonable and honorous burden.

We submit that the commandment of the First Amendment is simply "thou shall not abridge" and it is not "you may abridge but please try to keep it reasonable."

In any event, the impact of a financial penalty and the threat of future penalties are serious matters for Red Lion Broadcasting Company.

This station is located in the City of Red Lion, Pennsylvania which is a small town, having a population of less than 6,000.

As the record discloses, it is a daytime only station which must compete for revenues with two fulltime and one daytime station located in the York, Pennsylvania, and a fulltime station Hanover, Pennsylvania.

York, the county seat with the population of some 55,000 is only six miles away.

Hanover is 18 miles away.

There for a small station facing such competition, any donation of free time as a practical matter is not a trivial concern, and repeated donations might very well drive the station out of existence.

Justice John M. Harlan: Is your burden argument transparent the financial expects of you?

I know you match the other burden.

Mr. Robb: Does Your Honor referred by the other burdens to the -- well I think --

Justice John M. Harlan: Interruption of other programs?

Mr. Robb: I beg your pardon?

Justice John M. Harlan: Interruption of other programs?

Mr. Robb: Yes, yes indeed, that of course is a burden issue.

Justice John M. Harlan: You start off fly with the commission's regulation on condition to pay you --

Mr. Robb: Yes sir.

Justice John M. Harlan: -- or prove the indigency --

Mr. Robb: Yes sir, yes sir.

But I think we have to consider in analyzing the effect of this order for regulation, consider the entire impact that went on the station and the disruption of programming for station is a very serious matter, specially --

Justice Thurgood Marshall: Mr. Robb, is there any possibility putting on the public time?

The station has a certain mile of that, am I right?

Mr. Robb: Yes sir.

The record shows Mr. Justice Marshall that this station carries one hour a day called free speech and that on this program, anyone who wishes to appear may appear.

I don't know whether Mr. Cook would insist the station to pay his expenses to get there or not.

That might be the possibility.

Now, I mentioned the possibility of repeated request for donations.

There is no doubt that the rule of the F.C.C. in this case would expose the station to repeated demands for free time, unless the station steered clear of the dangerous zone of personal attack.

This very broadcast is a good illustration of this proposition.

The broadcast is printed at pages 60 and 61 of the appendix and appears therein at this one broadcast contained attacks not only on Mr. Cook but on three other people or groups.

Mr. Hargis attacked a man named Eugene Gleason, whom he identified as Mr. Cook's pal.

He attacked the magazine, The Nation.

He attacked Mr. Carry McWilliams, the editor of The Nation.

Now, if Red Lion were oblige to devote time for a reply to each of these attacks, would the Government then say that the cost and the disruption of the station's business where insubstantial?

Now, I suggest that this broadcast furthermore is a striking example of the fact that the personal attack doctrine as applied by the commission fragments every discussion of a controversial matter of public interest and importance, in due has many separate controversies and issues as there happened to be individuals or groups who happen to be attacked in the course of the broadcast.

Now, if the speaker happens to speak critically for a dozen individuals, each of them thereby becomes instantly a controversial matter or issue of public importance, and the broadcaster maybe required to provide free time for a dozen of answers which would be an onerous burden indeed.

We think this threat is substantial.

We think of the words of this Court in Cantwell against Connecticut in which the Court said this, “It is not merely the sporadic abused of power by the censor, but the pervasive threat inherent in this very existence that constitutes the danger to freedom of discussion”.

We asked, can it be set that the financial penalties and the other burdens which are -- and the penalties incidentally have the effect of a fine, and the persuasive and the pervasive threat of similar penalties in the future do not and could not have a chilling and deterrent effect upon the exercise by Red Lion of his First Amendment rights.

Do these penalties and burdens and this threat for the future constitute an inhibition and a deterrent less substantial than the one struck by -- the ones that was struck down by this Court in Talley against California and Speiser against Randall?

We submit that the answer must be no.

We submit the common sense tells us plainly that the application of the commission's rule and the threat of future applications are bound to make Red Lion in the future more reluctant to broadcast any material that involve the criticism of any individual or group.

Undoubtedly, we submit, Red Lion in the future would tread more cautiously, steering wider of the dangerous zone of criticism.

The result will be self-censorship, nonetheless virulent for having been self imposed.

Now, the Government argues that the personal attack rule is necessary in order that the public may have both sides of controversial issues, and specifically so the public may hear both the attack and the answer.

The argument we suggest overlooks the fact that if the personal attack rule is sustained, the public is likely to hear neither the attack nor the answer, for the reason that the attack may never be broadcast at all.

Instead of stimulating wide open, robust and uninhibited debate, the rule will tend to choke it off at the source.

To prevent the introduction of any alleged impurity into the stream, the Government proposes to dry it up at its source.

Now, the Government argues further that a person attacked on a number of radio stations maybe financially unable to pay for time on them all.

Therefore, says the Government, it's right that he should be given free time.

One answer to this argument may be found we think in the language of this Court in Cantwell against Connecticut, where the Court said and I quote, “To persuade others to his own point of view, the pleader as we know at times resort to exaggeration, to vilification of man who have been or are prominent in church or state, and even to false statement, but the people of this nation have ordained in the light of history that in spite of the probability of excesses and abuses, these liberties are in the long run essential to enlighten opinion and right conduct on the bottom citizens of a democracy.”

We submit in this case that the possibility of isolated abuses and individual cases of such abuses cannot justify the imposition of a stifling blanket of restraint on the First Amendment rights of all broadcasting stations.

Now, the Government's argument when analyzed rests on the premise that those who listened and who listened -- listen to the programs of Red Lion have no other source of information, no access to a wide diversity of opinion.

The facts destroyed the underpinning of the argument.

According to the broadcasting yearbook and TV digest fact book for 1969, the regions of the City of Red Lion have access to radio programs broadcast from nine towns or cities, which are Hanover, Pennsylvania, Harrisburg, Carlyle, Elizabeth Town, Lancaster, Lebanon, York, Philadelphia and Baltimore.

They have access to television programs from five different cities, namely Lancaster, Lebanon, Harrisburg, York and Baltimore.

It is inconceivable that the listening audience of Red Lion remains glued to that station's frequency, isolated and insulated from all other sources of information and opinion.

The possibility of a failure of diversity of tongues and diversity of opinion, we submit is most remote.

Again, the Government relies upon the fact that this Court held in the National Broadcasting Company case that radio broadcasting is subject to regulation.

We agree.

It did hold that.

But it does not follow from that decision and that the Government may dictate the content of radio programs or impose burdens on the exercise of First Amendment rights.

The Government may assign frequencies and channels, giving consideration to the character and the financial standing and ability of an applicant.

It may evaluate the total performance of a broadcaster during the term of his license.

It may supervise the methods of competition adopted by broadcasters.

But all of such regulation, we submit, is a far cry from the order to Red Lion which dictates what the content of a particular program shall be and who the speaker shall be.

Eventhough Red Lion may have been fair, may have broadcast other points of view, Red Lion is told by the commission, you must put on Mr. Cook, you must give him time.

An order of this sort, we submit, is precisely the kind of censorship and abridgement that the First Amendment condemns.

Now, as this Court has consistently held when First Amendment rights are tangled with conduct, which the Government may regulate, the First Amendment rights must be preserved and they must not be curtailed by regulation directed at the abuses which are subject to Government control.

Where if not so, then freedom of speech in the press would always be subject to abridgement and control by the subtle and indirect method of associating them and their exercise with other conduct which might be controlled.

Finally, the Government seeks comfort from the fact that the number of radio frequencies is limited.

It follows we are told that broadcasters hold these frequencies in trust with the public, and they must therefore bow to the interest of the public as that maybe interpreted and defined by the commission.

But the public streets, the public parks, the public buildings are likewise held in trust for the public, yet this Court has not permitted that fact to justify restraints upon the exercise therein of First Amendment rights.

In any event, we submit that the First Amendment rights of radio broadcasters should not be conditioned on the number of radio stations in existence, whether there be few or many should not determine whether they should enjoy the protection and the full protection of the First Amendment.

Finally, if the number and diversity of tongues are factors to be considered, we point to the fact that there are more than 6,000 commercial radio stations in this country today, three and a half times as many radio stations as there are daily newspapers.

And we've urged you to say that the circulation and the listening public of those radio stations far exceeds the circulation and the reading public of daily newspapers.

Now, a word aired to the Government's argument that the personal attack doctrine is authorized by statute, specifically Section 315 and other sections of the Communications Act.

Mr. Cox as I am reliably informed will discuss this matter in his argument, we have mentioned it in our brief, we support and adopt Mr. Cox's argument.

We make these points very briefly stated.

The first place, the statute definingly functions, powers and duties of the Federal Communications Commission certainly does not in terms authorize the personal attack rule.

Certainly, we say that meddling with the control of the programs or the content of programs is no part of the Federal Communications Commission's function.

We suggest furthermore that a statute which purports or is claimed to authorize impingement upon First Amendment rights must be strictly construed and carefully examined.

It should not be broadly construed.

With respect to the argument that the 1959 Amendment to Section 315 (a) authorized the personal attack rule, we point out that that amendment was adopted three years before the personal attack rule was articulated by the Federal Communications Commission.

And therefore, it seemed somewhat difficult to conclude that the Congress intended in terms to refer to that rule and to authorize it.

We point out and suggest also that the purpose of the 1959 amendment was to cure a blackout which had been caused by a free time requirement, and therefore, it seemed somewhat anomalous to argue that Congress intended by this curative amendment to authorize a similar blackout caused by a free time requirement.

Of course, we say also that if the statute does purport to authorize any such action by the commission, the statute is pro tanto unconstitutional.

In conclusion, we submit that this case plainly demonstrates the wisdom of what this Court said in Roth against United States and repeated in Smith against California.

The Court said and I quote, “The fundamental freedoms of speech and press have contributed greatly to the development and well being of our free society, and though indispensable to its continued growth, ceaseless vigilance is the watchword to prevent the erosion by Congress or by the states.

The door barring federal and state intrusion into this area cannot be left to chart.

It must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interest."

Justice Byron R. White: Mr. Robb?

Mr. Robb: Yes sir.

Justice Byron R. White: Could it be under the current rule makes that the station had broadcast this attack in the course of a regular news program, would there have to be a reply -- right to reply order?

Mr. Robb: Mr. Justice White, I read those new rules and to tell you the truth, I'm not sure what the answer would be because I know those rules exclude regular news programs from the coverage of personal attack doctrine.

But whether this would be construed is could be confused a news program, I really don't know.

Justice Byron R. White: Assuming for the moment that the station could do this, I suppose you'd still be here and making the same argument --

Mr. Robb: Yes sir.

Justice Byron R. White: -- because you want -- you think it's -- you should be protected in selling the right to others to --

Mr. Robb: Yes sir.

Justice Byron R. White: -- make this person protest.

Mr. Robb: Yes sir, yes sir.

Justice Byron R. White: And it's the station itself who wants to put out its own views sponsor, why it has ample opportunity within the present rules to make personal attacks or anything it wants too without affording an opportunity for a response, doesn't it?

Mr. Robb: Well, that I think involves the so-called editorializing rule which is involves in 717.

I prefer to leave that question to the experts Your Honor.

I'm -- but I suppose so, but of course, they wouldn't get paid for that --

Justice Byron R. White: Well, I suppose it bears on your constitutional argument though --

Mr. Robb: Yes sir.

Justice Byron R. White: At least insofar as your argument rests on some suggestion that it's the degree or seriousness of the invasion that is relevant here.

Mr. Robb: Yes sir.

Justice Byron R. White: And you are asserting station rights, not everybody else's aren't you?

Mr. Robb: I beg your pardon?

Justice Byron R. White: You are asserting the station's personal rights --

Mr. Robb: Yes sir.

And we submit in conclusion that the personal attack doctrine applied here is an attempt to try to open the door, barring intrusions on First Amendment rights.

Justice Hugo L. Black: May I ask you how--

Mr. Robb: Yes sir.

Justice Hugo L. Black: -- consider that --

Mr. Robb: I beg your pardon?

Justice Hugo L. Black: May I ask you how you consider that quotation needs your call?

Mr. Robb: Well, --

Justice Hugo L. Black: Open this slightest opening of a jar?

Mr. Robb: Yes sir.

Justice Hugo L. Black: Well, maybe they might argue this or just slight opening of the door?

Mr. Robb: I don't think it is Your Honor.

I think it's a very serious one.

Justice Hugo L. Black: That's where it gets you, what it gets to discussion though.

Mr. Robb: I think it's a very serious one.

I think this is an attempt --

Justice Hugo L. Black: It's a beautiful metaphor, a beautiful piece --

Mr. Robb: I think this --

Justice Hugo L. Black: I'm not sure it's quite precise.

Mr. Robb: Well, my feeling when I read that was Your Honor that this that we have before us here attempt to pry this door wide open, and I think we should stop it.

Justice Hugo L. Black: And that's why we got to -- what we got to judge is whether this trying to pry it wide open or leave it just tightly.

Mr. Robb: Well, my personal opinion Your Honor is that you don't balance First Amendment rights, it's either you have them or you don't.

And as I say, I don't think that the First Amendment says you can abridge just a little bit of reason, I think the First Amendment says you can abridge, and I think that this an attempt to abridge.

I think Your Honor has written some opinions taken that position if I'm not mistaken.

Justice Hugo L. Black: Yes, but I didn't think that quite fit in that position.

Maybe it does.

Mr. Robb: Yes sir, I hope so.

I like to reserve the balance of my time if I may Mr. Chief Justice.

Chief Justice Earl Warren: You may.

Mr. Solicitor General?

Argument of Erwin N. Griswold

Mr. Griswold: Mr. Chief Justice and may it please the Court.

This is the first of two cases presenting related to questions but in different circumstances.

In this case, we have specific facts but no formally announced rule or regulation.

In the next case, United States and Federal Communications Commission against the Radio Television News Directors Association et al., Number 717, we have a formal regulation but no facts.

I will try to keep my argument separated as far as the two cases are concern, but much of the argument is necessarily applicable to both cases.

In the first place, I would like to make it plain that this is not a sudden determination of the Federal Communications Commission that it will be righteous and seek to enforce some kind of arbitrary standards on the broadcasting industry.

On the contrary, the problem is one of long standing.

It goes back for close to 50 years.

The first traces of it that I've seen are found in an address of the then Secretary of Commerce Herbert Hoover in 1924 when the commerce department was charged with the licensing of radio stations, and he pointed out that there were great problems in the handling of this new medium and the problems of seeing that all points of view were properly expressed among them.

In its foundation, the problem is inherent in communication through electromagnetic waves.

From the very beginning, Congress and the Federal Communications Commission and I think it's fair to say the broadcast industry had been grouping for a sound and workable solution.

I'm quite sure that we have not found the final answer.

There's still room for improvement through more thought and more experience.

But I feel its substantial progress has been made in dealing with a fundamental and important issue.

Let me start by referring to some reflections of the problem which are found in the basic statute.

I am going to quote a few passages from the Communication Act of 1934, but I would point out that virtually all of these were also in the Federal Radio Act of 1927.

The very opening sentence says in Section 301 of Title 47, “It is the purpose of this chapter among other things to maintain the control of the United States over all the channels of interstate and foreign radio transmission, and to provide for the use of such channels, but not the ownership thereof by persons for limited periods of time.

And no license granted under this section shall be construed to create any right beyond the terms, conditions and period of the license.”

In Section 303, there is an expressed provision that a license maybe revoked if the licensee has transmitted superfluous radio communications or signals or communications containing profane or obscene words, language or meaning.

And I suppose it's reasonably plain that a station's license could be revoked under that section, eventhough the language used was such that could not had been enjoined from being used because of the First Amendment.

And then, there are provisions for licensing under which, the commission if public convenience, interest or necessity will be served thereby may grant licenses for periods of three years.

And there are provisions for revocation of licenses in case the station does not serve the public interest, convenience and necessity.

There are provisions for revocation of licenses in cases of willful and repeated violation or, of or willful or repeated failure to observe any provision of this chapter or any rule or regulation of the commission authorized by this chapter.

And then, there is Section 315, the equal time provision, and I point out that that was included in the Federal Radio Act of 1927.

It is thus 42 years old, and in its particular field, it is an expression of the fairness doctrine under which if a station gives time to a political candidate, it must give equal time to other political candidates with qualifications which were put in 1959 into which I will refer a little later.

In 1929, in a brief which the commission filed in the Great Lakes case, you find something of a beginning of an articulation of the fairness doctrine.

And over the next two decades, the commission in a series of individual rulings undertook to express the obligation of then radio stations to meet their requirements of the fairness doctrine, this being an interpretation by the commission of the standard included by Congress in the statute that these stations must operate in the public interest.

In 1960, in 19 -- yes, in 1960, there -- well, let me wait before 1959 and '60.

In 1940, in the ruling in the Mayflower Broadcasting case, the commission instructed radio stations that they could not engage in editorializing.

This may or may not have been the right thing to do, but it was an articulation of the fairness doctrine.

There was concern that stations with the great power they have could constantly reiterate one point of view and shut off all others, and the commission's approach in 1940 was to say you cannot editorialize.

But in 1949, after experienced with that, the commission issued its report on editorializing in which it changed its rule and it said you can editorialize but you must allow an opportunity for a response by responsible people.

Now, that was the situation in 1949.

Ten years later, we come to 1959 when after the Lar Daly case which arose under Section 315 involving equal time, there was great concern because the commission and a Court of Appeals had held that every candidate was entitled to equal time, eventhough he had only a miniscule support.

And Congress amended Section 315 in 1959 to provide that appearances on a bonafide newscast, a bonafide news interview, a bonafide news documentary, and on the spot coverage of bonafide news events need not be taken into account in determining the long established congressional mandate, and expression I believe of the notion of the fairness doctrine of equal time for political candidates.

And then, it is very significant I think that as a part of that amendment, Congress enacted these words, “Nothing in the foregoing sentence," that is the exception of bonafide new broadcast, "Nothing in the foregoing sentence shall be construed as relieving broadcasters in connection with the presentation of newscast, news interviews, news documentaries and on the spot coverage of news events from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”

And the statute also provided in paragraph C, the commission shall prescribe appropriate rules and regulations to carry out the provisions of this section.

Since our brief was filed, I came across another related matter.

In 1960, Congress suspended the equal time provision for the 1960 presidential campaign only, and in that statute which was a temporary statute and therefore isn't included in the U.S. Code, there was this additional sentence, nothing in the foregoing shall be construed as relieving broadcasters from the obligation imposed upon them under this Act to operate in the public interests.

Now, as merely accumulative, it adds nothing to the provision that isn't Section 315, but it does show the continuing concern of Congress to maintain the requirement of operation in the public interest not as a mere private venture, which is the heart of the fairness doctrine.

Finally, some four years later, the commission put out a report which is called the fairness premier.

As it appears in the federal register, it looks like this.

It is in essence, a digest of the decisions which the commission had reached in this area followed by two appendices which are reports of the commission and one of them is a report of the commission on editorializing by broadcast licensees.

The other is a rather full and comprehensive history of the fairness doctrine.

And putting this out, the commission said, “It is the purpose of this public notice to advice broadcast licensees and members of the public of the rights, obligations, and responsibilities of such licensees under the commission's fairness doctrine, which is applicable in any case in which broadcast facilities are used for the discussion of a controversial issue of public importance.

Now, there is included in the fairness premier, digest of several cases which involved personal attacks.

And that is the source, not the chronological origin but the place where there is contained and in official publication, the then statement of the commission's views with respect to the particular application of the fairness doctrine which has come to be known as the personal attack doctrine.

Justice Potter Stewart: When did you say the premier was published?

Mr. Griswold: 1964 Mr. Justice.

Justice Potter Stewart: '64.

Mr. Griswold: July 25, 1964.

I believe it's been put out in a different format as a pamphlet, but this is the way in which it appeared in the federal register for July 25, 1964.

Mr. Robb has stated the facts of the Red Lion case accurately, and I have no supplement to make the Red Lion station did broadcast a personal attack on Mr. Cook.

Mr. Cook sought an opportunity to reply.

He was told he could have it if he would pay for it or if he would certify that he was unable to pay for it.

Mr. Cook then wrote to the commission and there was an exchange of letters between the station and the commission.

But the first question that arises in my mind on this is whether the case is really properly before the courts.

Now, what is the order here?

In the record, one will find two letters.

One, incidentally, they both appear at least twice in the record.

The letter of October 6, 1965 appears on page 9 and also on page 37.

That letter ends "Accordingly, you are requested to advice the commission of your plans to comply with the fairness doctrine applicable to the situation."

The station then wrote back to the commission and on December 9th, the commission wrote a rather long letter discussing the legal questions, and I have the greatest difficulty finding that there was any order of any kind in there.

There may have been some indication that if the station didn't comply with this that when the time came for their license to be renewed, this would be a factor to be taken into account, but there was no order within any understanding that I have had with respect to the reviewability of administrative orders.

Indeed, the Court of Appeals panel first held that there was nothing reviewable here, but this was overturned by the Court of Appeals en banc without any opinion.

And I would point out that this was in March 1967, a few months before this Court's decision in the Abbott Laboratories case, but I would mention in connection with that particularly before this Court's decision in the Toilet Goods Association against Gardner which was decided at the same time.

And it's very hard for me to see that this is a sort of order that should be reviewed.

Let me simply interject here that after the fairness premier was put out, the commission did have a formal rule making proceeding and did make rules on personal attack and political editorializing.

Those rules are not involved in this case but they are the subject matter of the next case, Number 717.

In their brief in the next case, a counsel for their Radio Television News Directors Association say quote, “New York Times v. Sullivan governs this case”, just as simple as that.

If the New York Times case governs that case, I suppose it governs this one as well.

So, I would like to start with a consideration of the New York Times case and the differences between the problem there and here.

The New York Times case was a newspaper case, a press case in the literal sense.

Now, we do not have a Federal Press Commission.

We do have a Federal Communications Commission.

We do not license newspapers, nor other elements of the printed media.

We do license radio and television stations.

It is inconceivable that we would undertake to enjoin a newspaper from publishing.

We can and would enjoin a radio or television station from operating if it did not have a license from the Federal Communications Commission.

So, there must be some difference.

It obviously lies in the fact that radio and television exercise a privilege which is not utilized by the printed press.

Radio and television use a portion of the public domain.

They have and require exclusive use of a portion of the radio spectrum.

Without their license, they would not be entitled to use it.

With their license, they are entitled to use it to the exclusion of everyone else.

They not only have a grant of a portion of the public domain, they have a considerable measure of protection from competition.

In many communities, there is only one radio station or one television station.

Even when there are more as in the big cities, the protection from competition is substantial.

As its evidence indeed by the prices in the tens of millions of dollars which are paid for a radio and television stations.

There can only be a limited number of very high frequency television stations and UHF or Ultra High Frequency is not yet very effective in competition, and similarly, the number of AM radio stations is limited.

Does the fact that radio and television can operate only when they are privilege to use a limited public facility mean that they are outside the protection of the First Amendment?

Of course, that is not our position.

We are all guardians of the First Amendment, Government as well as broadcasters.

The question to be determined is the application of the amendment in this particular situation.

There is a great effort here and in the following case to put us in the position of attacking the First Amendment and seeking to rescript -- restricted scope.

We do not accept such a position.

We rely on the First Amendment and contend that our position is the one that makes it effective as against the narrow and I may say selfish interest of the broadcasters.

The personal attack rules do not forbid anything.

The broadcaster can still put on whatever he wants to put on.

The personal attack rules do not control the response.

They merely provide that there must be an opportunity for response.

In order that the listener may have the benefit of robust debate as a consequence of the publicly owned radio spectrum being used in the public interest, not merely as the exclusive private fee of the broadcaster.

In one of the briefs in the next case, Professor Harry Calvin is quoted.

In this article, Professor Calvin says quote, “Think of a town meeting where the chair would rule that each speaker must be fair to both sides.”

End of the quotation.

And now, I like the town meeting analogy.

I've taken part in a good many of them and they are remarkable example of democracy in action.

But I think that Professor Calvin has misapplied the analogy.

He has misapprehended the function and the opportunity and the responsibility of the moderator.

Let me put it this way.

Think of a town meeting where the moderator did not see to it that both sides have full and fair and equal opportunity to speak.

Can you imagine a moderator, who after one side have spoken in strong and fighting attack would then tell the opposition speaker, "No, you can't speak here.

Perhaps you can get a hearing in some other town but not here.

He would not last long as a moderator.

The very essence of his post is to run the meeting in a fair manner; giving all relevant viewpoints or reasonable opportunity to be heard.

He does not control one side or the other.

He does not censor.

He does not force anyone to speak.

And when someone wants to speak, he does not tel him what to say.

He keeps the channels of communication open.

He assures full debate as robust as the citizens want to make it.

He sets the ground rules, but he does not control or take part or censor.

Is this not a good analogy for the present case?

It is the commission which is in the position of the moderator.

The commission does not control or take part or forbid or censor, but it does represent the public interest in assuring that the public facility is used for the public benefit.

The personal attack rules do not rest on protection for the person attacked, they are for the benefit of the public.

As a part of the overall fairness doctrine which is designed to make the First Amendment effective and which derives directly from the public ownership of the radio spectrum and the enactment of Congress that radio and television stations must operate for the public interest, convenience and necessity.

This leads directly to the next portion of the argument.

It is said that application of the personal attack rules will inhibit radio and television operators.

And that they will prefer not to put on controversial programs because they will lose money if time has to be made available for a reply.

This, it seems to me begs the question.

As in many legal arguments, we are in this case I think very much at the risk of the tyranny of labels.

I've already referred to one aspect to this which might be put in the syllogism, major premise, the press cannot be required to adhere to a fairness rule, minor premise, radio and television are part of the press conclusion.

And therefore, radio and television cannot be subjected to the fairness rule.

As I've argued, the label is not applicable.

And now on this point, we're subjected to the pressure of another label.

It is said that freedom of the press cannot be inhibited.

It would be inhibited if there were a personal attack rule.

Therefore, the personal attack rule must fall under the First Amendment.

This I submit is in part pure assertion and in remaining part false reasoning.

There is no evidence whatever in this record that the Red Lion station was or would inhibited by the application of the personal attack doctrine.

In this very case, it went ahead and broadcast the attack after the commission had published the fairness premier in 1964 and it knew just what was expected of it by the commission.

But beyond that as I've said, the argument is based on faulty analysis for it assumes that every minute of the time available to a broadcast licensee is his to use as he sees fit for his own personal financial profit.

But he isn't remains a licensee.

He is using a public facility.

His license expressly provides that it must be used for the public convenience and interest.

If he does not meet the standard of the public interest, the commission may fail to renew his license, it can even cancel it.

And I will continue tomorrow.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Erwin N. Griswold

Chief Justice Earl Warren: Number 2, Red Lion Broadcasting Company Inc.et al, petitioner versus Federal Communications Commission et al.

Mr. Solicitor General?

Mr. Griswold: Mr. Chief Justice and may it please the Court.

Before resuming my argument, I would like to make a reference to one matter to which I referred yesterday afternoon.

I raised question as to whether there was something in this exchange of letters between the commission and the Red Lion Broadcasting which constituted and ordered, which was properly subject for judicial review.

I should point out that the question whether there was something reviewable there was presented by petition for rehearing en banc by the Government, which was joined in by the other side and that my reference there should be simply my own personal puzzlement as to what in these days constitutes a proper subject of judicial review.

At the conclusion of the argument yesterday afternoon, I was referring to the suggestion that the personal attack regulations would inhibit actions by broadcasters.

The inhibition I've suggested lies -- the suggestion of inhibition I contended, lies in a misapprehension of the status of the broadcaster.

It based on the assumption that every minute of the time available to a broadcast licensee is his to use for his own personal financial profit.

And I was arguing that his license allows him to use a public facility.

It provides that it must be used for the public convenience and interest.

If he doesn't meet the standard of the public interest, the commission may fail to renew his license, it can even cancel it.

And certainly, the personal attack doctrine as an aspect of the fairness doctrine does no more than to say that he must use his privilege in this particular circumstance in the public interest.

His license comes to him burdened with a public obligation, and he is in no position to claim that he is inhibited if he is required to make a modest performance on the obligation.

Experience shows that there is little trouble under the fairness and personal attack doctrines with the great networks and the stations which they control.

The problem arises mostly with the small independent stations as in the present case.

As I've already indicated, there's no evidence here, no showing of any hardship, or even of lost of revenue by the station.

Mr. Robb in his argument yesterday admitted that there was a personal attack, so, there is no question here about the suggested vagueness of the regulation.

The only objection that the station made was to the granting of free time.

They made no suggestion as to a problem of scheduling.

Moreover, as has been indicated, they had a format.

They had a free speech hour each week when they could readily have putted in.

Indeed, many small stations play a great deal of music and an appropriate response to a personal attack could have been put on the air in place of a single recording.

The commission does not undertake to tell the station just where the response must be put as long as the station chose an effort to be fair.

The placing of the response is up to it.

If it can get a sponsor, it's free to do so.

Otherwise, it must be on sustaining time.

But as I've indicated, that is part of the obligation.

It undertakes when it accepts its license.

Justice Potter Stewart: Was that all clear back at the time that this Red Lion episode occurred that it was the obligation of Red Lion to not only to give an opportunity to the person whose character have been attacked, but also do it at no expense to him?

Mr. Griswold: Let me say in response to that Mr. Justice that the fairness premier had been published before this.

The fairness premier is essentially a digest of previous rulings of the commission.

I think I'm right in my recollection that at least one of those rulings involved the question of free time.

It was not as explicit as it was in this exchange of letters, but I think it is inherent in the fairness doctrine.

Justice Potter Stewart: All just glancing through the appendix and I haven't read it carefully.

There seems to be an indication that many of these broadcasting companies and they were great many that broadcast this particular speech.

Mr. Griswold: I think there were a 165 to broadcast this program.

Justice Potter Stewart: Many of them seem to take the view that their obligation was met by this simple offer of free time if you want to pay for it.

Mr. Griswold: Simple offer of time.

Justice Potter Stewart: Of time, of time.

Mr. Griswold: -- time if you wanted to pay for it.

Justice Potter Stewart: Or a showing that he was he was a pauper or something like that.

Mr. Griswold: But let me suggest to you Mr. Justice that paying for time on a 165 stations is pretty substantial burden to put on the person involved here, particularly when as this our submission, this is really the obligation of the station in meeting the statutory requirement of operating in the public interest which over the course of a long evolution has developed into the fairness doctrine and more specifically into the personal attack doctrine.

Justice Potter Stewart: I understand your submission as to the importance and necessity of it's being free time, but I -- my question is as you understood I know was whether or not that was also clear back at the time of Red Lion broadcast.

Mr. Griswold: Not as clear as I would like to have it to be.

There was no -- nothing stated in bold face type that you must do this on free time if you can't get a sponsor.

I think it was understood and I don't think that Red Lion was surprised when the response came from the commission.

Certainly, that is a part of the issue here.

I think it would be unfortunate in the long run to have it said that "Well, you can reply if you can pay for it, or you can reply if you can get sponsor," that would seem to be a considerable hindrance on a free speech and the development of a robust debate which is the underlying objective of the First Amendment.

It is our position that the objective of the fairness premier of the commission's action here is to implement the First Amendment, not to subvert it.

To induce the licensees to recognize their obligation under the amendments since they are utilizing a portion of a public facility, it has been argued that the First Amendment requires an opportunity for response in a situation like this, that in effect the United States would be denying free speech if there were no personal attack doctrine.

I don't go that far, but I do contend that the regulation here involved on these facts does implement the First Amendment, does protect the public's right to hear which is the underlying basis of the First Amendment, and tends towards encouraging robust in spirited debate in accordance with the thrust and objective of the First Amendment.

And for these reasons, we would submit that the decision of the Court of Appeals in this case should be affirmed.

Chief Justice Earl Warren: Mr. Robb?

Argument of Roger Robb

Mr. Robb: Mr. Chief Justice and may it please the Court.

Referring briefly to the statement by the Solicitor General concerning whether or not this was a final order for which I thank him, I think that perhaps I might pledge that out a little bit by reference to the records.

Now, as has been indicated, when this case was first presented in the Court of Appeals to a panel consisting of Circuit Judges Miller, Fahy and Tamm, the question was raised as to whether or not the order involved was a final order.

At that time, the respondent commission was represented by Mr. Giller his general counsel and by Mr. Assistance Attorney General Turner of the Department of Justice.

Judge Miller in his opinion said this in which appeared at page 84 of the joint appendix.

In considering this matter, we are confronted by the threshold question, whether the commission's letters of October 6 and December 9 were final orders from which an appeal maybe taken.

Pursuant to our invitation, the parties have submitted memoranda on the question in which they agreed that the commission's letters constitute final appealable orders.

However, Judge Miller and Judge Tamm held that the orders were not finally appealable.

Judge Fehy dissented in which he said, “All parties including the one against whom the ruling was made, understood the commission had decided finally that Red Lion was under obligation to comply with the fairness doctrine and had so notified the Red Lion.”

Thereafter, there was a motion for a rehearing en banc, in which again, the respondent was represented by Mr. Turner of Department of Justice, and as Judge Tamm points out in his opinion, final opinion, thereafter, the United States and the Federal Communications Commission petition for en banc rehearing of the case.

In other words, at Mr. -- as had been pointed out, all parties joined in that petition and I note in the brief for the Government filed here at page 9, appears the statement.

Number 2 here and after Red Lion involves a challenge to a 1965 commission order directing Red Lion Broadcasting Company Inc. licensee of radio station WGCB in Red Lion to afford time to Fred J. Cook.

So, I take it there can be no question, so far as the Government is concerned, this is a final appealable order.

Now, Mr. Griswold has made reference to the distinction what he argues between newspapers and radio in the matter of regulation.

And he suggest that since radio is subject to some regulation, therefore, should be distinguished from the case of newspapers.

We suggest that newspapers are also subject to the law.

They're subject to the antitrust laws.

They're subject to the obscenity laws perhaps to a certain degree.

But that does not mean that the Government may dictate what maybe publish or what not maybe publish.

The newspapers enjoy the privilege of law postal rights as do periodicals, but this Court has held in the Hannegan v. Esquire case that the fact that these rates are granted to publications as a privilege, does not authorize the Government to determine what is in the public interest to be mailed and what is not.

Now, let me advert briefly in connection with newspapers and news stories to the question put to me yesterday by Mr. Justice White, and which perhaps at the time, I failed to understand fully or misunderstood.

The question as I recall it was whether or not this Hargis broadcast might have been carried as a bonafide newscast, and therefore have avoided the requirement that free time be given for a reply.

I think in the first place is if one examines this broadcast that one must reach a conclusion that under no stretch of the imagination could this be considered a bonafide news broadcast.

It is a discussion and an attack on Mr. Cook and his book.

However, and this matter is discussed at some length in the brief filed in Number 717 by Columbia Broadcasting System.

However, in the first place, under the fairness doctrine or the personal attack doctrine as it stand stood the time of the broadcast, there was no exemption for a personal attack carried in a news broadcast.

Justice Byron R. White: This is just not the current rule.

Mr. Robb: Yes sir, but even under current rules, may it please the Court, even under the current rules, and the current rule is published at page 20, printed at page 20 of the CBS print.

Justice Byron R. White: You're talking about the current.

Mr. Robb: It is still subject to the fairness doctrine unless, unless the broadcaster carry some general answer to the attack in some other way.

Justice Byron R. White: Even he isn't subject to the specific and personal attack rules, he's still subject to the generalities of the fairness doctrine --

Mr. Robb: Yes sir, yes sir.

Justice Byron R. White: -- in trying to search out the position of presenting it on the other --

Mr. Robb: Yes sir.

And as the Seventh Circuit held in the other case, our reading of the latest amendment indicates that unless the response of the person attacked is fairly prevented by the licensee on the attack issue of the exempt broadcast, the licensee, he must adhere to the explicit requirements of the rules, so that the exception is really rather -- a rather insubstantial.

Now, --

Justice Byron R. White: What's your - what's your client's basic view of the air, the atmosphere through which these waves travels really public property or does it belong to the people?

What was it?

Mr. Robb: Well, --

Justice Byron R. White: Some people suggest that it's like a public street.

Mr. Robb: I beg your pardon?

Justice Byron R. White: Some people suggest it's like a public street that everybody has some right of going into for communication purposes.

Mr. Robb: Well, even assuming that to be true, may it please Your Honor, now this Court has held in many cases, but although public streets and public parks are public property and held in trust for the public, the Government may not under the guise of regulating the use of the streets or parks impinge upon the right of free speech.

Justice Byron R. White: That's true.

That's true.

That's true.

But if they're -- but couldn't they insist if they're going to give people, certain selected people the exclusive right to use the parks that they let somebody else use them too sometimes under some condition?

Mr. Robb: Well, --

Justice Byron R. White: -- use the parks or the streets or the airwaves?

Mr. Robb: Well, I don't quite follow Your Honor's analogy in that connection.

It seems to me obviously, everybody can have a license for radio station because there are not enough frequencies left out.

Justice Byron R. White: Well, that's true, that's true, and the people they given to, the Government suggests, they ought to able to require let somebody else into the facilities now and then when there's good reason to do so.

Mr. Robb: Well, that maybe taken care by the general fairness doctrine about which I have no comment, except to say that there's a distinction I think and a very sharp distinction between a general requirement that during the term of his license, a radio broadcasting company must observe general fairness.

And if it failed to do so, at the end of its term, it might not get his license back.

I think a distinction between that situation and the situation we have here where the Government undertake to tell a radio broadcaster what it must broadcast and who it must be put on the air.

Justice Byron R. White: I'm not suggesting that anything specific about these specific rules, but in principle, do you object to the notion that the Government --

Mr. Robb: I beg pardon?

Justice Byron R. White: In principle, do you object to the notion that the Government in granting licenses which are available in limited numbers, if they suggest to the licensee that under certain conditions, they must let some other people besides themselves use the facilities?

Mr. Robb: Well, Your Honor says in principle Your Honor, it makes a lot of difficult to answer because the principle might be extended to lengths which I would not be able to accept.

Justice Byron R. White: Well, the fairness doctrine just as still -- the general fairness doctrine still just leaves it in the and I take it in the hands of the broadcaster to decide what material would go over the air waves to create the balance which the fairness doctrine might require.

Is that correct?

Mr. Robb: Yes sir.

Justice Byron R. White: And so I ask you again, would you say that the Government would be disentitle to -- in connection with the license specific to require that the licensee allows certain specific material to go on the airwaves rather than just leaving it up to him?

Mr. Robb: I would answer that question, no, yes sir.

Justice Byron R. White: So --

Mr. Robb: I think that's what they're doing in this case --

Justice Byron R. White: Yes, that's right.

And you say that public has no right in connection with granting a license to say to the licensee that here are some materials that you must broadcast at some point in your operation.

Mr. Robb: I don't think I phrased it quite that well Your Honor.

I think I'd say --

Justice Byron R. White: If some other members of the public want it broadcasted.

Mr. Robb: Your Honor, say the public has no right to hear it.

I would say that the Government has no right to dictate to the broadcaster that he must present it to the public in a certain way in certain time for a certain person.

Justice Byron R. White: And you say that you may that the Government may not say that if John Jones, a member of the public demands from you under certain conditions that he'd be allowed to speak on your facilities that you must do so, you would say the Government may not say that?

Mr. Robb: Yes sir.

I might point out to the Court in that connection with the respect to the general proposition of fairness that the record shows here that Red Lion did broadcast I think half an hour at one time and 15 minutes in another time did give to the democratic national committee, that time, to broadcast a general program on what was called Eight Clubs of the Air, which included Mr. Hargis who is involved in this broadcast, so that the public did have that before it.

Chief Justice Earl Warren: Mr. Robb, may I ask you this.

You acquiescent reasonable in this rule, don't you?

Mr. Robb: Oh, yes sir, yes sir.

Chief Justice Earl Warren: Well, what in principle is the difference between the situation in the case we have here, where they say that the radio station must have -- must give free time to someone to answer on the one hand, and on the other hand that the conclusion of the term of the license that if commission says to them now here.

You haven't been reasonable, you haven't been fair, you've been out of line in what you say is -- is they're using their First Amendment rights and therefore we take away you license.

Now, what is the difference in principle between those two?

Mr. Robb: Well, I notice in the brief of the Government, a reference to a decision of the F.C.C. in a case in which it was attempted to cancel the license of a broadcasting station on the ground that the station over a period of years had been broadcasting anti-semitic programs, and the Federal Communications Commission held that was not a profit ground upon which to revoke the license.

So apparently and obviously I think, the Federal Communications Commission draws a distinction between such a proceeding and such a -- an attack upon that station, and the case which we have before us where in a particular case, with the respect to a particular matter, the station is told that it must broadcast particular material through the voice from the mouth of a particular individual.

Irrespective of the fact that the station may have been overall perfectly fair with respect to the issue discussed.

This isolates a particular individual and the particular individual desires from the general question of whether during its term of service, the station has been fair and reasonable.

Chief Justice Earl Warren: Is that a question of principle or is that a question of degree?

Mr. Robb: I think it's a question of principle Your Honor.

Chief Justice Earl Warren: What is the principle?

Mr. Robb: I think the principle is the distinction between dictating a particular program which I think -- think come out to censorship.

And over a period of years, a passing judgment on whether or not the performance of the station over those years had been fair.

I can see a distinction there.

Chief Justice Earl Warren: In order words, it's a distinction between an individual program and on the one hand than overall policy on the other.

Mr. Robb: Yes.

I think that's probably what Mr. Chafee had in mind when he wrote his article on this matter, in which he said that dictating a particular program and the contents of one is the very essence of censorship.

Chief Justice Earl Warren: You mean to require an answer is censorship.

He certainly doesn't mean that, does he?

Mr. Robb: I beg your pardon?

Chief Justice Earl Warren: Certainly he doesn't mean to require an answer is censorship, does he?

Mr. Robb: Well --

Chief Justice Earl Warren: Isn't there something else if it's --

Mr. Robb: Yes sir.

Chief Justice Earl Warren: If it's right?

Mr. Robb: Mr. Justice Stewart asked the Solicitor General whether or not Red Lion was on notice that it would be required to give free time.

Well, I can't state definitely that it would not.

I'm advised that there was nothing clearly stated prior to his ruling which put Red Lion on notice that it must give this free time.

And obviously, many of the radio stations who responded to Mr. Cook felt that their obligation was fully fulfilled when they offered him time on a paid basis.

I think unless the Court has for further questions, that is all time that I will impose upon the Court.

Chief Justice Earl Warren: Very well, thank you.