What is for other individuals merely a routine advertising plug extolling the virtues of a beverage, essentially no different from other types of product advertising, is for these individuals the advocacy of a practice which they deem to be detrimental to our society. Whatever the merits of this controversy *** it is at least clear that it may assume the proportions of a controverted issue of public importance. The fact that the occasion for the controversy happens to the advertising of a product cannot serve to diminish the duty of the broadcaster to treat it as such an issue.

It is clear from this language that FCC believed its "fairness" requirement extended to advertisements for the sale of products and services in some instances. In this particular instance, advertisement of alcoholic beverages, it was held to apply. In view of the foregoing language one might be led to think the Morris petition was granted. Just the opposite result was reached. Justification given for denying the petition is interesting. The Commission found a vast majority of other licensees followed policies identical to KRLD and CBS. Being so widespread across the industry, it was deemed unfair to punish KRLD for policies common to all. By March 27, 1946, the regulator had obviously lost its stomach for the sternest of sanctions, license revocation. This is also apparent in the Scott decision to follow on July 19, 1946.21

Robert Harold Scott petitioned for license revocation of three California stations, KQW, KPO, and KFRC. Scott was an atheist. He had attempted to purchase time to present programs devoted to atheism. He claimed all the stations refused him time, either paid or otherwise, while permitting the use of their facilities for "direct statements and arguments against atheism as well as for indirect arguments, such as church services, prayers, Bible readings, and other kinds of religious programs."

Responding, KFRC stated its "firm belief that it would not be in the public interest to lend our facilities to Mr. Scott for the dissemination and propagation of atheism." KPO contended "it is difficult to imagine that a controversial issue exists in the usual sense of that phrase, on the subject of the existence of a God merely because of the nonbelief of a few." And KQW admitted it refused time to Scott for "broadcasting of atheistic talks," contending it was not in the public interest to do so. Further the station contended a controversial public issue was not presented and in any event, "if a public controversial question was tendered, it was not of sufficient public moment and did not present a question so uppermost or important in the minds of the public to justify its broadcast in the public interest with consequent displacement of an existing program service." Finally KQW argued it had acted within its legal rights and that "the Commission is not by statute authorized to substitute its judgment for that of the licensee under the circumstances. ***”

Scott, in his petition, had asserted:

I do not throw stones at church windows. I do not mock at people kneeling in prayer. I respect every man's right to have and to express any religious belief whatsoever. But I abhor and denounce those who, while asserting this right, seek, in one way or another, to prevent others from expressing contrary views.

The Commission determined that the proposed broadcasts did not involve blasphemous attacks upon the Deity nor abusive or intemperate attacks upon any religious belief or organization.

In re Petition of Robert Harold Scott, 11 FCC 372.

Discussing these arguments, the Commission would write what has probably been its most eloquent statement of the "fairness” responsibility of broadcasters, saying:

The first amendment to our Constitution guarantees both religious freedom and freedom of speech. While these guarantees are expressed in terms of limitation on governmental action, they are far more than narrow legalistic concepts. They are essential parts of the fundamental philosophy underlying the form of Government and the way of life which we call “American.”

Freedom of religious belief necessarily carries with it freedom to disbelieve. and freedom of speech means freedom to express disbeliefs as well as beliefs. If freedom of speech is to have meaning, it cannot be predicated on the mere popularity or public acceptance of the ideas sought to be advanced. It must be extended as readily to ideas which we disapprove or abhor as to ideas which we approve. Moreover, freedom of speech can be as effectively denied by denying ac cess to the public means of making expression effective whether public streets, parks, meeting halls, or the radio-as by legal restraints or punishment of the speaker.

It is true that in this country an overwhelming majority of the people profess a belief in the existence of a Divine Being. But the conception of the nature of the Divine Being is as varied as religious denominations and sects and even differs with the individuals belonging to the same denominations or sects.

God is variously thought of as a "Spirit, infinite, eternal, and unchangeable,” and as having a tangible form resembling man who, in turn, was created in His image; as consisting of a Trinity and a single Godhead; as a Divine lawgiver, laying down infallible natural and moral laws by which man is governed, and as a God who concerns himself with the personal affairs of individuals, however, petty; as a God to whom each person is individually accountable and as a God to be approached only through ordained intermediaries; a God of the powerful who divinely appoints kings and other rulers of men, and as a God of the meek and lowly; as a God of stern justice and a God of mercy; as a God to be worshipped or appeased primarily through ritual and as a God to be served primarily through service to one's fellow man; as a God whose rewards and punishments are mainly reserved for a future life and as a God who also rewards or punishes through spiritual enrichment or impoverishment of man's present ex'stence. These are only a few of the many differing conceptions which might be cited by way of illustration.

So diverse are these conceptions that it may be fairly said, even as to professed believers, that the God of one man does not exist for another. And so strongly may one believe in his own particular conception of God that he may easily be led to say, "Only my God exists, and therefore he who denies my God is an atheist, irrespective of his professed belief in God." For example, the early Christians were to the Romans atheists because they denied the existence of the pagan gods in which the Romans believed.

A rule which denies freedom of expression to the professed atheist should certainly be applied with equal, if not greater, strictness to one whose views are, in fact, atheistic, but who seeks to deny or conceal his atheism. Thus, the necessity arises of making determinations on the basis of personal judgment as to whether views sought to be expressed are, in fact, atheistic. The power then is vested in those making such determination to attach the label of atheism to the believer whose particular belief they may happen to disapprove, and thus of effectively denying the believer the right to express his views. Under such a course, Jefferson, Jackson, Lincoln, and others whose names we revere could, today, be barred from access to the air to express their own particular religious philosophies. The first two were denounced with particular vigor from the pulpits of some of the wealthier and better established churches, and the label of "atheist" was freely attached to Jefferson by those who had come to feel that their favored positions, which were threatened by his social. economic, and political philosophies, were rewards which the Deity had bestowed upon them because of their special virtues and accomplishments.

Underlying the conception of freedom of speech is not only the recognition of the importance of the free flow of ideas and information to the effective functioning of democratic forms of government and ways of life, but also belief that immunity from criticism is dangerous-dangerous to the institution or belief to which the immunity is granted as well as to the freedom of the people generally. Sound and vital ideas and institutions become strong and develop with

criticism so long as they themselves have full opportunity for expression; it is dangerous that the unsound be permitted to flourish for want of criticism.

Moreover, however strongly we may feel about the sacredness of religious beliefs, we should be mindful of the fact that immunity from criticism cannot be granted to religion without, at the same time, granting it to those who use the guise of religion to further their ends of personal profit or power, to promote their own particular political or economic philosophies, or to give vent to their personal frustrations and hatreds. “False prophets" are not phenomena peculiar to Biblical days. Their danger now, as then, lies essentially in the difficulty of recognizing them as such. This difficulty is increased to the extent that their doctrines and motives are shielded from critcal examination.

We recognize that in passing upon requests for time, a station licensee is constantly confronted with most difficult problems. Since the demands for time may far exceed the amount available for broadcasting a licensee must inevitably make a selection among those seeking it for the expression of their views. He may not even be able to grant time to all religious groups who might desire the use of his facilites, much less to all who might want to oppose religion. Admittedly, a very real opportunity exists for him to be arbitrary and unreasonable, to indulge his own preferences, prejudices, or whims; to pursue his own private interest or to favor those who espouse his views, and discriminate against those of opposing views. The indulgence of that opportunity could not conceivably be characterized as an exercise of the broadcaster's right of freedom of speech. Nor could it fairly be said to afford the listening audience that opportunity to hear a diversity and balance of views, which is an inseparable corollary of freedom of expression. In making a selection with fairness, the licensee must, of course, consider the extent of the interest of the people in his service area in a particular subject to be discussed, as well as the qualifications of the person selected to discuss it. Every idea does not rise to the dignity of a "public controversy," and every organization, regardless of membership or the seriousness of its purposes, is not per se entitled to time on the air. But an organization or idea may be projected into the realm of controversy by virtue of being attacked. The holders of a belief should not be denied the right to answer attacks upon them or their belief solely because they are few in number.

The fact that a licensee's duty to make time available for the presentation of opposing views on current controversial issues of public importance may not extend to all possible differences of opinion within the ambit of human contemplation cannot serve as the basis for any rigid policy that time shall be denied for the presentation of views which may have a high degree of unpopularity. The criterion of the public interest in the field of broadcasting clearly precludes a policy of making radio wholly unavailable as a medium for the expression of any view which falls within the scope of the constitutional guarantee of freedom of speech.

Yet, in spite of this language, the renewals were not set for hearing. Reasoning as it did in the Morris case, the Commission said:

*** the issue here involved is one of broad scope and it is not restricted to the three stations which are the subject of Mr. Scott's complaint. We therefore do not feel that we would be warranted on the basis of this single complaint in selecting these three stations as the subject of a hearing looking toward terminations of their licenses, when there is no urgent ground for selecting them rather than many other stations. But, lest our dismissal of Mr. Scott's petition be misconstrued, we feel that we should make our position entirely clear, as we did in dismissing the petition of the Reverend Sam Morris.

These words, sounding as caveat, leave one to wonder which of its positions the Commission wished to make "entirely clear." Was it thereafter clear the public interest required atheists to be heard? Or, was it clear, in instances of widespread violation, that licensees need not fear any Commission sanction? That the decision was not subsequently taken as caveat will be shown later.

Why, after its unrelenting early record of license revocation for content reasons, did the Commission in "Morris" and "Scott", seem so reluctant to punish offending licensees? The only available sanction,

license revocation, was, and remains, indeed severe. Yet the Commission, then as now, had the statutory power to adopt rules. Rules, if violated, could be punished with fines and forfeitures, far short of revocation. In view of "Morris" and "Scott" immediately following the "Blue Book", with its detailed and encompassing principles governing broadcast content, one wonders why rulemaking did not appeal to the Commission.

Perhaps one explanation lies in industry's reaction to the "Blue Book." By the time of "Morris", criticism of any FCC involvement in programing was heated. By the time of "Scott", it was widespread. Never before had opposition been so adamant and criticism so powerful. Perhaps, out of the "Blue Book" reaction, FCC developed a regulatory timidity it has never overcome. Significantly, at this writing it is yet to order any encompassing rules supporting its "Blue Book principles and, since the publication of that document, no case of license revocation or nonrenewal can be found for violation of its imperatives. 3. The editorializing report of 1949

Thought by some to be the origin of the "fairness doctrine," the 1949 report on editorializing 22 merely collected and summarized the Commission's previous "fairness" decisions, with one notable exception. The hard implications of "Mayflower" were rejected and licensees were clearly permitted to editorialize.

Reaffirming licensee responsibility to deal with controversial public issues, the Commission said:

The Commission has consequently recognized the necessity for licensees to devote a reasonable percentage of their broadcast time to the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station.

In dealing with those issues, the licensee could not be arbitrarily selective, dealing with some and ignoring others. Although this point is not forcefully emphasized in the report, no doubt the Commission had that in mind when it said:

But the inevitability that there must be some choosing between various claimants for access to licensee's microphone, does not mean that the licensee is free to utilize his facilities as he sees fit or in his own particular interests as contrasted with the interests of the general public. The Communications Act of 1934, as amended, makes clear that licenses are to be issued only where the public interest, convenience or necessity would be served thereby. And we think it equally clear that one of the basic elements of any such operation is the maintenance of radio and television as a medium of freedom of speech and freedom of expression for the people of the Nation as a whole ***. It would be inconsistent *** to assert that, while it is the purpose of the act to maintain the control of the United States over radio channels, but free from any regulation or condition which interferes with the right of free speech, nevertheless * [licensees] *** may themselves make radio unavailable as a medium of free speech * * *. Congress intended that radio stations should not be used for the private interest, whims, or caprices of the particular persons who have been granted licenses, but in manner which will serve the community generally and the various groups which make up the community.

As before, in dealing with controversial issues, the licensee retained an obligation to air opposing points of view. Describing that responsibility, the Commission said:

If, as we believe to be the case, the public interest is best served in a democracy through the ability of the people to hear expositions of the various positions

22 FCC docket 8516, Editorializing by Broadcast Licensees, 13 FCC 1.

taken by responsible groups and individuals on particular topics and to choose between them, it is evident that broadcast licensees have an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to make available on demand opportunities for the expression of opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difficult if not impossible of achievement unless the licensee plays a conscious and positive role in bringing about balanced presentation of the opposing viewpoints.

Considering the role of licensee editorials in dealing with controversial issues the Commission recognized, even in a scheme where licensee editorials are banned, the broadcaster may insure the broadcast of his own personal views through his power to select programs and commentators. Yet, the argument was advanced during hearing that direct editorials would have far greater impact on opinion than other broadcast content and would inevitably result in overemphasis upon the side which the licensee chose to espouse. Responding to this argument, the Commission reasoned:

We do not believe that any such consequence is either inevitable or probable, and we have therefore come to the conclusion that overt licensee editorialization, within reasonable limits and subject to the general requirements of fairness detailed above, is not contrary to the public interest.

Another concern which surfaced during hearings was that station control and utilization of production facilities could lead to imbalance in presenting opposing views. This concern was disposed of with these words:

15. Similarly, while licensees will in most instances have at their disposal production resources making possible graphic and persuasive techniques for forceful presentation of ideas, their utilization for the promulgation of the licensee's personal viewpoints will not necessarily or automatically lead to unfairness or lack of balance. While uncontrolled utilization of such resources for the partisan ends of the licensee might conceivably lead to serious abuses, such abuses could as well exist where the station's resources are used for the sole use of his personal spokesmen. The prejudicial or unfair use of broadcast production resources would, in either case, be contrary to the public interest.

In assessing licensee performance at renewal time, the Commission announced it would adhere to its established policy of considering overall broadcast service. Standards of reasonableness and fairplay would prevail. No rigid "fairness" rules would control. This is how the Commission explained it:

While this Commission and its predecessor, the Federal Radio Commission, have, from the beginning of effective radio regulation in 1927, properly considered that a licensee's overall program service is one of the primary indicia of his ability to serve the public interest, actual consideration of such service has always been limited to a determination as to whether the licensee's programing, taken as a whole, demonstrates that the licensee is aware of his listening public and is willing and able to make an honest and reasonable effort to live up to such obligations. The action of the station in carrying or refusing to carry any particular program is of relevance only as the station's actions with respect to how such program fits into its overall pattern of broadcast service, and must be considered in the light of its other program activities. This does not mean, of course, that stations may, with impunity, engage in a partisan editorial campaign on a particular issue or series of issues provided only that the remainder of its program schedule conforms to the statutory norm of fairness; a licensee may not utilize the portion of its broadcast service which conforms to the statutory requirements as a cover or shield for other programing which fails to meet the minimum standards of operation in the public interest. But it is clear that the standard of public interest is not so rigid that an honest mistake or error in judgment on the part of a licensee will be or should be condemned where his 78-319-68-3