Interesting Press Freedom Issue Concerning the 2000Presidential Election

[Mark Graber]

No doubt I am demonstrating my ignorance.  Has Congress the power to declare that no election return shall be made public until all voting is finished.  If so, abuses in the way networks present this information would be a relevant legislative investigation.

Mark A. Graber
mgraber at gvpt.umd.edu

>>> katkink at NKU.EDU 08/01/01 15:58 PM >>>
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 distorion 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
katkinknku.edu