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FREEDOM OF THE AIR
To Provide:
1. Equal Facilities on the Air for Both Sides of Controversial Issues.
2. Periods for Unrestricted Discussion of Public Issutes.
3. Complete, Open Station Records on Requests for Time.
4. Protection for Stations from Civil and Criminal Court Actions.
AMERICAN CIVIL LIBERTIES UNION
31 Union Square W.
New York City
JANUARY, 1938
BILLS IN CONGRESS
FOR FREEDOM OF THE AIR
THE establishment of radio open forums on every station in the country, reaching approximately 70,000,000 listeners, is proposed in legislation pending in Congress. The bills reprinted on pages 5 to 10 were referred to the Committees on Interstate Commerce in the House and Senate. They were introduced in the House by Representative Byron Scott of California and in the Senate by Hon. Lewis B. Schwelienbach of Washington.
Following paths along which the radio committee of the Civil Liberties Union has pioneered for several years, the bills provide free speech forums as an immediate step in solving the complicated problems of freedom of the air. Looking towards a long range program, Rep. Scott calls for the appointment of a non- partisan Broadcasting Research Commission to make a thorough two- year study of operations here and abroad and to bring in a report with recommendations for a solution of all the questions involved.
Freedom of the air has meant something to the broadcasters who paid nothing at all for their lucrative and monopolistic operating licenses. It has meant little to anyone else. A recent survey of radio censorship by Minna Kassner, an attorney for the American Civil Liberties Union, has uncovered more than 100 cases of censorship by station owners of pacifists, labor groups, doctors, anti- New Dealers and others.
Protests of educators and free speech advocates have grown louder recently but they have been weakened by lack of a common program. Their disagreement was demonstrated at hearings last fall before the Federal Communications Commission on the proposal to set aside 25% of all radio facilities for the use of non- profit organizations. The educators and their allies lacked facts and were not united on any point except dissatisfaction with the status quo. In sharp contrast was the presentation of the National Association of Broadcasters, a well- documented and well- publicized defense of the "American" system. As might have been expected, the Commission supported the stand of the broadcasters.
It is the feeling of the groups backing the Scott bills that a truly "American" system would extend the free speech guarantee to radio. Hence the proposed legislation which would:
(1) require each station as a condition of its license to set aside regular periods "at desirable times of the day and evening for uncensored discussion on a non- profit basis of public social, political and economic problems and for educational purposes."
(2) make it mandatory for every station presenting a controversial issue to give a hearing to at least one opposing view. (An advisory committee of "disinterested, representative citizens" would advise the Commission respecting the allocation and use of time for discussion of public questions and for educational purposes.)
(3) free stations, though not speakers, from legal liability for remarks on such programs.
(4) compel stations to keep accurate and public records of all applications for time, indicating which were granted and which refused.
There are obvious administrative difficulties in the forum proposal, but no more than those faced by any honest open forum. Commissioner of Education John W. Studebaker might well be selected by the Communications Commission to apply on a national scale the public discussion technique he handled so well in Des Moines. Station managers would no longer be able to use their fear of libel suits or their vast respect for "good taste" to bar controversial ideas from the air. Radio listeners would have the opportunity of hearing each day and evening vigorous debates and discussions of all current problems. Each listener by a turn of the dial could enter the exciting and varied market of contemporary ideas.
The Broadcasting Research Commission would offer a rare opportunity to men of high calibre to work out a sound and permanent radio policy. They would investigate technical problems concerned with the present division of the broadcast band, television, ownership of patents, and the financial structure and relationship of various companies. Broad social questions of censorship, of the advisability of a government chain or entire nationalization of radio would be carefully studied. The Commission would amass the factual material that critics of the present order need so desperately.
Here then is a minimum program for freedom of the air on which all liberais, educators, and religious and labor groups might well unite. Organizations supporting these bills should pass resolutions at once, and forwad them to Rep. Byron Scott at Washington. Copies of all resolutions and letters should be sent to other representatives and senators and to local newspapers. Every effort should be made to secure broad public support for these bills. Only by their passage will a beginning be made in developing a radio system that will serve the interests of listeners primaily rather than the pocketbooks of advertisers and station- owners.
THE PROPOSED LEGISLATION
H. R. 9229, 9230, 9231, H. Res. 370, 74th Congress,
1st Session
(The bills below are italicized; supporting memoranda are in ordinary roman type)
H. R. 9230: UNRESTRICTED DISCUSSION
OF PUBLIC ISSUES
A Bill to amend section 315 of the Communications Act of 1934.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 315 of the Communications Act of 1934 be, and hereby is, amended by striking out the whole of said section and by inserting in lieu thereof the following:
"Sec. 315. Each licensee of a radio broadcasting station shall be required to set aside* regular and definite periods at desirable times of the day and evening for uncensored discussion on a nonprofit basis of public** social, political, and economic problems, and for educational purposes. When any such licensee permits any speaker on any controversial social, political, or economic issue to use its facilities during any such period, it shall afford to at least one exponent or advocate of each opposing viewpoint equivalent facilities. The licensing authority shall without any delay make rutes and regulations to carry this provision into effect, and in proceeJing hereunder it shall appoint and, in its discretion, act upon the recommendations of an advisory committee consisting of disinterested, representative citizens: Provided, that the licensing authority, the advisory committee, and licensees shall have no power of censorship of any kind, nor shall any licensee be subject to liability, civil or criminal, in any State or Federal court for material so broadcast under the provisions of this section, nor shall any license be revoked or renewal refused because of material so broadcast."
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*It has been suggested that the words "without charge" should be inserted so that it will be perfectly clear that the licensee shall not receive revenue from such broadcasts.
**In the bills there is a comma after the word "public." This was a mistake as the word is intended to apply to each type of program mentioned. Certain typographical errors contained in the official copies of the bills have been corrected in the interest of clarity.
The Present Provision
Section 315 of the Communications Act of 1934 was taken over from the Radio Act of 1927. It provides that licensees shall afford equal treatment (e.g. time, rates, etc.) to legally qualified candidates for public office; that the Commission shall make rules and regulations to carry the provision into effect; that licensees shall have no power of censorship over material so broadcast; and that no obligation is imposed on any licensee to allow the use of its station by any such candidate.
Section 315 in its present form is unsatisfactory from the standpoint of the industry as well as the public.
Neither the old Radio Commission nor the new Communications Commission has made rules or regulations to carry the provision into effect, though network companies and a number of station owners have promulgated and generally adhered to fixed policies and rules in this regard.
Under Section 315 the networks and certain stations have reaped a harvest from the major political parties in national elections and from leading factions in state and local contests. The provision has, of course, favored the party or person with the largest war chest to the prejudice of minority groups and individuals of small means.
The provision is fundamentally unsound in assuming that the public desires only the uncensored discussion on social, economic and political issues of legally qualified candidates for office. Campaign periods are relatively short; candidates are not always the leading or most capable advocates of the parties' or candidates' views; controversial discussion is not a seasonal product demanding attention only before elections; too frequently political campaigns are used to avoid or obscure rather than meet and illuminate issues.
The censorship provision is of little value. Though it protects the candidate himself from censorship by networks and stations, and protects stations from actions for slander or libel when a candidate is on the air, it does not extend to speakers other than candidates, and stations have been found guilty of defamation for the remarks of such other speakers.
It is law at present that network and station owners, managers, program directors, and even announcers and technicians in charge of the electrical controls, must, at the peril of the station, determine at the moment of utterance whether a remark is actionable, a feat that no responsible judge or lawyer would presume to perform except in the plainest cases. This has led necessarily to direct and indirect censorship, and to the indefensible practice of requiring the submission of manuscripts for approval of networks and stations on an editorial basis.
At certain times networks and stations are delighted to obtain political broadcasts. They fill time and supply revenue. But at other times and in certain communities, especially with the growth of volume of profitable advertising, this is not the case. Political broadcasts are refused. It is believed that all stations as an incident of the right to operate as public callings under Federal franchises should be required to devote certain periods to political broadcasts without profit or censorship.
The Proposed Amendment
Under the proposed bill all stations would be required, subject to regulations to be made by the Commission on the advice of a disinterested advisory committee, to give over desirable periods on a regular basis and without revenue to unrestricted discussion of public issues; speakers on such issues would receive equal treatment; licensees would be relieved of all responsibility to the Commission and in the local courts for such broadcasts.
This means that the American system of private ownership, control, profit and responsibility would be continued, except that during periods reserved for public discussion there would be no revenue to the station and no responsibility by the station to the Commission or the public.
We know of no other way to provide for - and then safeguard - freedom of speech on the air.
It has been said that under the proposal the pressure for time would tend to squeeze out minority groups; that the agency charged with administration of the provision would exercise a form of censorship that the proposal would lead to interminable arguments as to what are public social, political and economic problems, etc. All of these arguments and difficulties have been canvassed and considered, but no reasonable alternative has been suggested, and we are satisfied that, given a measure of intelligence and cooperation, the provision can be made to work to the satisfaction of the industry and the public. The lack of any satisfactory provision in the present Act and of any constructive proposal for change have led year after year to greater and greater confusion and disillusionment as to the value and use of radio as a means of public discussion.
H. R. 9229: PROTECTION FOR STATIONS FROM CIVIL AND CRIMINAL COURT ACTIONS
A Bill to amend section 326 of the Communications Act of 1934.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 326 of the Communications Act of 1934 be, and hereby is, amended by striking out the whole of said section and by inserting in lieu thereof the following:
"Sec. 326. Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communication. No action, civil or criminal, shall be commenced or prosecuted against any licensee in any court, Federal or State, because of anything said or done in the course of any broadcast on any public social, political, or economic issue: Provided, that this provision shall not be uderstood or construed to exempt any licensee from liability for any defamatory, profane, indecent, or obscene language or action broadcast by any officer, employee, agent or representative of such licensee."
To implement the proposed revision of Section 315 and to clarify the powers of the Communications Commission under the general standard of public interest, convenience and necessity, we suggest the addition of a sentence to Section 326 which will expressly protect station owners (licensees) against actions, civil or criminal, in the state and federal courts for broadcasts on public questions.
We do not recommend any change in the present language of Section 326. We do recommend additional language which will free licensees from responsibility to the Commission or in the courts for broadcasts on public questions, except where licensees are responsible for defamatory or improper remarks.
Under present conditions there is a very real danger that the licensee will be sued for a defamatory utterance that goes out from its transmitter. There is also a very real danger that the Communications Commission (like the old Radio Commission) will consider defamatory or improper utterances for which the licensee is not responsible in acting on applicatons for renewal of license and other privileges. Censorship has flourished under fear of these dangers, and in many, many cases the act of censorship has been performed by persons who have no qualification whatever to determine the very delicate question of what is and is not actionable or in bad taste.
The suggested addition to Section 326 will put an end to the danger of punitive action against the networks and stations and will thus obviate the necessity for editorial treatment of public discussion. It will not, of course, free the speaker himself from responsibility in the courts and elsewhere for his remarks or his conduct on the air.
H.. R. 9231: COMPLETE AND
OPEN RECORDS
A Bill to add section 315 (a) to the Communications Act of 1934.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Communications Act of 1934 be, and hereby is, amended by adding thereto the following:
"Sec. 315. (a) Each licensee of a radio broadcasting station shall keep complete and accurate records open to reasonable public inspection-
"(1) of all applications for time;
"(2) of all rejected applications and the reasons for such rejections;
"(3) of all additions and changes requested in arranged programs on public social, political and economic issues and
"(4) of interference with and substitution of programs on public social, political and economic issues and on educational subjects.
"The licensing authority shall make rules and regulations to effectuate this provision."
The proposed addition to Section 315 would require stations to keep complete and accurate records open to reasonable inspection of applications for time, rejected applications and the reasons for such rejections, additions and changes requested in programs on public issues and on educational subjects and interference with programs on public issues and on educational subjects.
This proposal represents a further attempt to limit censorship by network companies and station owners. It will implement the proposed amendments of Section 315 and 326.
ADDITIONAL INFORMATION, JANUARY, 1938
To bring the record up to January, 1938, we note the new numbers of the bills. In the House they were introduced January 14, 1937 by Rep. Byron Scott and are H.R. 3039, 3038, 3033. Identical bills were introduced in the Senate by Senator Lewis B. Schwellenbach of Washington, on July 8, 1937 and their numbers are S. 2756, 2757, 2755.
The resolution for an investigation mentioned on pages 3 and 4 is omitted because of the introduction by Senator Wallace Humphrey White, Jr. of Maine, Republican, of a resolution for a more sweeping inquiry No. S. 149. The resolution has been favorably reported by the Committee on interstate Commerce and is on the calendar without any definite plan for calling it up.
The essential parts of the resolution which deal with freedom of the air cover an inquiry into
1. The extent to which licenses of broadcast stations censor or refuse programs offered to them for transmission and the reasons for and the effects of such censorship or refusal;
2. The extent to which, the basis upon which, and the times at which broadcast stations carry programs relating to public affairs, education, religion, labor, agriculture, charity, and public service generally;
3. The extent to which and basis upon which broadcast stations carry programs offered by or on behalf of candidates for public office or programs relating to controversial subjects in the field of national, state, or local politics.
The American Civil Liberties Union supports the White resolution as well as the Scott- Schwellenbach bills. The bills, if passed, would offer immediate remedies. The resolution, if passed without the bills, would postpone any change in the present set- up for a considerable time. Such an investigation, however, is highly desirable to establish a long- range policy.
A more complete presentation of the problem of freedom of the air is contained in the following books and pamphlets:
CONTROL OF RADIO. Pamphlet, by Jerome G. Kerwin. (Public Policy Pamphlet No. 10) (University of Chicago Press, 1934. 27pp.)
EDUCATION BY RADIO. Vol. VIII, No. 1 in "Reference Shelf" Service, comp. by Helen W. Muller. (H. W. Wilson Co., 1932. 175pp.)
ORDER ON THE AIR! Pamphlet by James Rorty. (John Day Co., 1934. 32pp.)
SELECTED ARTICLES ON FREEDOM OF SPEECH AND THE PRESS, by Lamar T. Beman (H. W. Wilson Co., 1930. 500pp.) includes compilation of articles, affirmative and negative, on censorship of radio.
Committee On Radio of the American Civil Liberties Union
Ruth Brindze, author
T. R. Carskadon, public relations counsel
Morris L. Ernst, attorney
Henry J. Eckstein, business man
Jack Foster, journaiist
Minna F. Kassner, attorney
Alexander Lindey, attorney
Prof. Clyde Miller, Teachers' College
Morris S. Novik, program director, station WEVD
Norman Thomas, Director, League for Industrial Democracy
Hazel L. Rice, National Council on Freedom from Censorship
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