Because of the overwhelming changes in media within the past twenty years, First Amendment values are more vital than ever to this country's freedom. This thorough study brings to the forefront the reasons that government regulation of news content violates the public interest and the fundamental principles of the First Amendment. A recent FCC decision may even threaten the freedom of news on the Internet. The U.S. State Department urged at World Press Freedom Day in 2011 that journalists should not be the only ones standing for press freedom. "Each one of us who recognize the value of an informed citizenry must also stand up for this fundamental right" *www.misa.org/mediarelease/pressfreedom.html
Government Control of News
A Constitutional ChallengeBy Corydon B. DunhamiUniverse, Inc.
Copyright © 2011 Corydon B. Dunham
All right reserved.ISBN: 978-1-4502-6406-8Contents
Introduction......................................................................................1Chapter 1 Television Journalism Begins............................................................5Chapter 2 Regulation of Television News Content Upheld by the Supreme Court.......................10Chapter 3 How FCC Regulations Suppressed News and Speech..........................................26Chapter 4 Congressional Investigations and Censorship.............................................64Chapter 5 Executive Branch Censorship.............................................................98Chapter 6 The FCC Revokes the Fairness Doctrine...................................................120Chapter 7 New Government Threats..................................................................133Conclusion........................................................................................176Notes.............................................................................................179Appendix 1 Excerpts from the Red Lion Decision....................................................225Appendix 2 Excerpts from the Failed Pension Plans Case............................................239Appendix 3 Excerpts from FCC Decision Revoking the Fairness Doctrine..............................261Appendix 4 FCC Report on Broadcast Localism and Notice of Proposed Rulemaking.....................269Index.............................................................................................275
Chapter One
Television Journalism Begins
Television news came into its own in 1948, after World War II, when the FCC resumed licensing of broadcast television stations. Although the number of electronic signals and stations was still limited, television network and station programming soon became a major source of entertainment and information for the American public. When political coverage on television news programs was created by American broadcasters, it was free of government oversight and interference.
The first broadcasts showed the nominations of the candidates for president of the United States at the political conventions in Philadelphia. AT&T had inaugurated regular, commercial intercity transmission of television pictures by coaxial cable. At first, this linked nine cities on the East coast from Boston in the north to Richmond, Virginia in the south, and reached seventeen television stations. Four television networks were launched—NBC, CBS, ABC, and Dumont.
Television News – An American Innovation
What turned out to be the beginning of a new nationwide, pervasive, and vital communications service with live, electronic images edited and delivered simultaneously to a mass audience was developed almost on the spot. The political conventions of 1948 were the first big political event for television news. The networks planned live television coverage of all the proceedings, both scripted and unscripted.
Engineers had to learn how to manage the new, large, and cumbersome television cameras to broadcast the news. The cameras of the time required intensely hot, bright lights and were installed in rooms and halls without air conditioning, in what was an especially hot summer in Philadelphia. Corporate network executives were uncertain whether the coverage would be successful or if the revenues from advertisers new to television would even begin to cover the costs.
Manufacturers of television sets were for it—television coverage of the conventions would sell TV sets. The political parties were all for it. They had selected Philadelphia because it was connected to the coaxial cable and it reach an audience served by television in nine cities. Advertisers had to decide whether to buy advertising time.
Some television stations would broadcast live. Those that could not would receive a kinescope, a film of a television picture, through the mail for broadcast the next day. There was a potential viewing public in the reception area with about three hundred and fifty thousand television sets in homes and public places. A third of America, 168 electoral votes' worth, would be "within reach" of a television set.
Leaders of Congress and other political figures could see the advantages of attending the convention and being available to the cameras. Reuven Frank, who was there in charge of production for NBC News, recounts the events in his book, Out of Thin Air: The Brief Wonderful Life of Network News. He concluded that the two conventions included every official, every legislator, every regulator "who could shape a radio or television company's right to exist. In network contacts with politicians in Philadelphia's restaurants and hotels, no one said a word about licensing—but no one forgot about it either."
Radio stars who had been sought as anchors for the convention coverage had declined. They did not know how to conduct television broadcasts in which their every gesture would be transmitted live to the viewing public. They had little interest in this new, upstart operation. Television's future was dubious at best. No one knew if it would be successful.
Those prevailed upon to try it unexpectedly became public figures of note. The face of the network anchor at a political convention would become the network news's "standard bearer," and this sometimes lasted for decades. Those adventurous anchors included Douglas Edwards, John Cameron Swayze, Walter Cronkite, Chet Huntley, and David Brinkley.
On Monday, June 21, 1948, the Republican convention was gaveled to order. Reuven Frank writes that for reporters, chasing down a story at the convention with a television camera was just not feasible given the camera's size and the need for big, hot lights. So cameras were positioned where the news director expected a significant event would take place. The first press conference carried on live television showed Governor Thomas E. Dewey, candidate for the Republican nomination for president, claiming the lead in promised delegates over Robert Taft of Ohio and Harold Stassen of Minnesota. There were many such firsts. Reporters learned the news by following the story themselves and then hurrying to a stationary camera to report it live, standing in the lights in front of the camera. Frank reports that Life made a substantial editorial contribution to NBC with help from their executives familiar with photo coverage and received some media promotion from that, but he could not find out why the "oldest, richest network agreed to share its moment with Life's 'promotion scheme.'" He asks, "Above all, where were NBC's lawyers? Nothing happens in broadcasting without lawyers."
"The intent was to cover news; whatever news there was ... What politicians considered interruptions was journalism to the news people from NBC and the magazines. They filled otherwise dull or empty time with remote broadcasts of panels and discussions, man-in-the-street interviews, and a dizzying array of special features." Among these was a "four-foot lady elephant, hired to promote the Taft candidacy ... [the elephant] made frequent appearances on all the networks when the Taft candidacy was being discussed. There were also serious, sometimes news making, sometimes substantive interviews, and there were times when no one could think of anything better to fill the passing minutes than to have reporters talk to each other."
Frank writes in Out of Thin Air that the defeat of Senator Taft and Harold Stassen had seemed to come about inexorably. At 9:00 pm, the cameras showed Dewey riding to the convention hall in his limousine, "toward the rainbow, into a horizon of black clouds moving rapidly away." A violent thunderstorm struck Philadelphia that Thursday evening. On the roof of the convention hall, Clarence Thoman, chief engineer of NBC-affiliated television station WPTZ in Philadelphia, became famous for hanging onto the transmitting antennas on the roof into the night to hold them in place so the television signals would reach the viewing public.
The Democrats gathered in the same place on July 12 to nominate Harry Truman. Frank reports, "It was a gloomy, sodden occasion. No one could believe Harry Truman could win except Harry Truman." In contrast to the Republican convention, things looked grim at the Democratic convention. "On television, everything changed, mood, pace, the story. Everyone was upset about something. They took their cases to the lights and the cameras."
Reuven Frank writes that in the midst of all this, the television audience watched an event of historical importance take place, live, before its eyes. "Two days of conflict and resolution that changed the course of the country ... to commit the Democratic Party to redress the disabilities that burdened black America." Frank reports that this issue, which would dominate American society for the rest of the century, never was "seen so clearly as by the people who saw it covered live on television." The television cameras showed an African-America delegate, George Vaughn of Missouri, unexpectedly approaching the podium. He moved that the convention refuse to seat the delegation from Mississippi because they had said they would walk out if a strong civil platform were adopted. The hall erupted with demonstrations. Big-city and big-state delegations supported Vaughn. Demonstrations continued. In spite of all this, his motion was rejected.
The next day, the coverage ran for fifteen continuous hours of speeches and demonstrations for the pros and cons of a civil rights plank. Southern states' demonstrations continued in opposition to the liberal plank. Northern states demonstrated and voted unanimously for it. It finally carried.
At 8:02 pm, the clerk called the roll to nominate the Democratic candidate for president. By 1:00 am, Harry S. Truman had won the nomination. He spoke without notes. With his chopping gestures, he gave it to the Republicans. He called for support from the farmers and laborers he had helped. He kept after the Republicans. He was interrupted by a shout from the back, "Give 'em hell, Harry!" That would become his campaign slogan.
The convention adjourned at 2:31 am with a reinvigorated party led by what television had shown the viewing public was an indomitable figure. No longer so discouraged, his party would warmly support him when he toured the country, primarily by whistle-stop train. Since there were few television cameras at stations across the country at that time, television could not cover that train campaign to any extent.
Truman's vigorous campaign led to a stunning upset victory over Dewey, catching the nation by surprise. The spirit of that Philadelphia Democratic convention prevailed. A large segment of the American public had seen what live television could do to inform them. It also reflected for the viewers the character of a presidential nominee and the vital impulse of a democracy.
Regulation of Television News
Television was and is a powerful communication medium and rapidly became the nation's foremost source of local, national, and international news, sports, and entertainment. The federal government immediately began to seek to control and regulate the content of broadcast television news and broadcast political speech.
Chapter Two
Regulation of Television News Content Upheld by the Supreme Court
A congressional regulatory agency, the Federal Communications Commission, regulated radio news under the Communications Act of 1934, as amended. In 1949, the FCC then applied similar control regulations to the content of television news. Congress further passed a law in 1959 to approve and enforce that FCC control and management of television news content. When a complaint was made to the FCC about a view that had been broadcast on an important and controversial public issue, the Federal Communications Commission would investigate and review the issue and the other views broadcast. It could order a change in the news report "in the public interest," the vague but ultimate statutory standard of the Communications Act that the FCC enforced. The FCC called its regulation the Fairness Doctrine.
In effect, Congress endorsed this regulation that applied to all broadcast stations across the country. Stations and the suppliers of broadcast news, including the broadcast networks, had to comply with the Fairness Doctrine and the many investigations and decisions by the FCC to enforce it. The content of all news and public affairs programming by television stations across the country was subject to that government control and management and to the threat of that control and management.
Investigating and Revising News Reports
To enforce the Fairness Doctrine, the FCC investigated broadcaster news judgment in selecting and deciding on the issue to be broadcast and how it would be presented. The FCC also examined the views that had been presented on the issue broadcast. If it concluded that a view should be changed, it ordered that. If it concluded still other views should be presented, it ordered those views to be broadcast. If the FCC determined that some other issue or view had been raised or implied by the broadcast, it ordered further contrasting views to be broadcast. It could also order the broadcast of some other relevant issue it thought had been raised in the process and should be addressed and then order the broadcast of contrasting views on that issue. The theory was that this would provide "robust debate" on controversial issues of public importance "in the public interest."
The reasoning was that a national central government agency could best oversee and require fairness in news coverage by individual broadcast stations in their local markets and by the networks in their national market. Since there were limited broadcast frequencies, not everyone could own a broadcast station or broadcast a point of view. To see that all views on controversial issues were presented if any view was presented, the government ordered station licensees to present all contrasting views. A central government agency would thus be the ultimate news editor.
The regulation was carefully and deliberately drawn to place a government agency in a position to investigate and make final editorial news decisions necessary to make the news conform to what that agency found was appropriate. The FCC standard was not "truth," which few wanted a federal agency to decide, but "contrasting views." The Fairness Doctrine included harsh FCC penalties for licensee failure to comply. They were a refusal to renew the broadcast station license, shortening the period of the license if the license was renewed, or creating a negative record applied at license renewal time.
The Supreme Court and the Red Lion Philosophy
The First Amendment in the Bill of Rights provides that Congress shall "make no law ... abridging the freedom of speech ... or of the press." When Congress passed a law endorsing the Fairness Doctrine, its vague and subjective news and speech regulations, and its in terrorem penalties, the law was challenged as a violation of the First Amendment. After all, the First Amendment seemed to prohibit Congress from making such a law. The new law did not seem to accept our nation's free speech and free press traditions, or the historical understanding of the purpose and goals of the First Amendment, which essentially prevented government interference with news and speech content so the people could govern themselves in a democracy.
But the Supreme Court took the view that the First Amendment permitted government control and management of broadcast news and speech for purposes of the Fairness Doctrine in light of the scarcity of broadcast frequencies. In a 1969 opinion by Justice Byron R. White, the Court ruled that the Fairness Doctrine was constitutional. This Red Lion decision was, remarkably on an issue of free speech and free press, unanimous. Of the eight justices then in office, the vote was seven to zero, Justice William O. Douglas not participating.
The case involved two long-fighting religious figures. Reverend Hargis bought radio station broadcast time to say that Reverend Cook had written a book to smear and destroy conservative Senator Barry Goldwater (R–AZ), a candidate for president. Hargis said Cook had been fired from a newspaper for making false charges against city officials, had worked for a Communist-affiliated organization, had defended Alger Hiss (allegedly a Communist agent within the state department), and had attacked J. Edgar Hoover (head of the FBI) and the CIA.
The Fairness Doctrine included a right of reply to a personal, demeaning attack. Cook argued he was entitled to free broadcast time to answer the Hargis charges and asked the broadcast station for time to reply, free of charge. The station took the position that it would provide the time, but Cook would have to pay for it, just as Hargis had paid for his time. The FCC decided that Cook should be granted time to reply and the time should be free.
The Supreme Court agreed. The Communism charge was a serious charge at the time. To provide the injured party, Cook, a remedy for the injury, the Supreme Court upheld as constitutional the Fairness Doctrine right of reply and in the process upheld the constitutionality of the Fairness Doctrine as a whole. All of its provisions for control of broadcast news and speech content were held to be consitutional. For the first time in history, the Supreme Court held that a federal government agency had the lawful and constitutional power to investigate and revise press coverage. This would haunt and distort television reporting on America's news and political speech for many years.
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Excerpted from Government Control of Newsby Corydon B. Dunham Copyright © 2011 by Corydon B. Dunham. Excerpted by permission of iUniverse, Inc.. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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