Interesting Press Freedom Issue Concerning the 2000 Presidential Election

[Paul Salamanca]

Wow.  These are fascinating precedents --- especially now that the
distinction between print and electronic media is almost meaningless.  By
the way --- how many households actually receive their TV signals by
broadcast in the old-fashioned sense anymore?  If the answer is "not many,
and the number is steadily declining," then what's the conceptual
difference between TV, cable, the internet, and the traditional print
media?  Even conceding that TV (and cable, I suppose) come into the home
uninvited (or underinvited), and that that's a problem where children are
concerned, I still don't see how that supports a governmental policy of
policing the accuracy of news reports.

At 12:25 PM 8/1/01 -0400, you wrote:
>Yesterday, Paul Salamanca and Bill Funk and I all agreed that we were not
>aware of any law that the allegations against GE Chairman Welch would violate,
>even if true.  Upon further investigation, however, I have discovered that
>under its decades-old policy against "news distortion," the FCC has long held
>that
>"[r]igging or slanting the news is a most heinous act against the public
>interest," and is therefore a valid ground for revocation of a broadcast
>license under 47 U.S.C. sec 309.  Serafyn v. F.C.C., 149 F.3d 1213, 1217 (D.C.
>Cir. 1998) (quoting Hunger in America, 20 FCC 2d 143, 150-51 (1969)).
>
>Moreover, when the FCC is presented with a "substantial" allegation of "news
>distortion," the agency *must* conduct an evidentiary hearing  to investigate
>the allegations.  See id.  (reversing an FCC decision *not* to investigate "60
>Minutes" after a citizen presented the agency with substantial circumstantial
>evidence of news distortion).  In this context, an allegation is "substantial"
>if it presents direct or circumstantial evidence that:
>
>      (1) the news distortion was "deliberately intended to slant or
> mislead. .
>. .  The allegation of deliberate distortion must be supported by 'extrinsic
>evidence,' that is, evidence other than the broadcast itself, such as written
>or oral instructions from station management, outtakes, or evidence of
>bribery."; and
>
>      (2) "the distortion must involve a significant event and not merely a
>minor or incidental aspect of the news report.... The Commission tolerates
>practices such as staging and distortion unless they affect the basic accuracy
>of the events reported."
>
>Id. (quoting Galloway v. FCC, 778 F.2d 16, 20 (D.C.Cir.1985)) (punctuation
>marks omitted).
>
>Although this FCC doctrine might appear to be inconsistent with First
>Amendment values, it is well-established (in a very unfortunate line of cases,
>IMHO) that FCC-licensed broadcasters are public trustees who enjoy no property
>interest in their broadcast licenses, and no First Amendment right to retain
>their broadcast licenses in the face of an FCC finding that the content of
>their broadcasts (even if First Amendment-protected) is contrary to the public
>interest.  See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Red
>Lion Broadcasting Co. v. FCC,395 U.S. 367 (1969).  Apparently for this reason,
>the FCC's "news distortion" policy has uniformly been upheld against First
>Amendment challenge.  See, e.g.,  Serafyn v. F.C.C., 149 F.3d 1213 (D.C. Cir.
>1998); Galloway v. FCC, 778 F.2d 16 (D.C.Cir.1985).
>
>Thus, if the materials already in Rep. Waxman's possession comprise a
>"substantial" allegation of "news distortion," and the FCC were therefore to
>open an evidentiary hearing (either voluntarily or after being ordered to do
>so by the D.C. Circuit), I tentatively conclude that NBC would seriously
>jeopardize its broadcast licenses and those of its affiliates if it were to
>assert a First Amendment privilege not to produce the requested videotapes.
>
>I'm still not sure exactly how this fact would bear on the question of a
>Congressional subpoena, because Congress probably cannot revoke NBC's licenses
>directly, and NBC/GE's First Amendment rights might be implicated if different
>forms of sanctions were employed.
>
>Prof. Kenneth Katkin
>561 Nunn Hall
>Salmon P. Chase College of Law
>Northern Kentucky University
>Highlands Heights, KY 41099
>859-572-5861
>katkink at nku.edu