Specifically, it has been held that freedom of religion does not give the right to practice polygamy, on the theory that the commission of a crime constitutes an overt act against peace and good order. It is not an infringement of the constitutional provision as to religious freedom to pretend to believe in supernatural powers for the purpose of procuring money and to use the mails in pursuance of such a purpose."

With respect to freedom of the press, several cases have arisen in connection with the granting or refusing to grant the privilege of the second-class mail privilege. In such cases, a permit is issued, which, for all practical purposes, is a license in the same sense that a radio broadcaster is licensed to operate.

8

The Supreme Court has held that it is not obnoxious to the first amendment to deny to the press the right to circulate matter which it regards as injurious to the people, as an advertisement of a lottery. Neither did freedom of the press protect a newspaper which denounced certain wartime laws as arbitrary and oppressive and whose contents were designed to create hostility to and to encourage violation of such laws.9

The Supreme Court has held that the National Labor Relations Act is a proper exercise of power to regulate commerce and that an order of the National Labor Relations Board, forbidding the Associated Press to discharge an employee because of union activity and his agitation for collective bargaining, did not interfere with freedom of speech.

The Court explained that the act itself and the order of the Boarddoes not require that the petitioner retain in its employ an incompetent editor or one who fails faithfully to edit the news to reflect the facts without bias or prejudice. The act permits a discharge for any reason other than union activity or agitation for collective bargaining with employees.

*

The Court goes on to say:

* The business of the Associated Press is not immune from regulation because it is an agency of the press. The publisher of the newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. He is subject to the antitrust laws. Like others, he must pay equitable and nondiscriminatory taxes on his business. The regulation here in question has no relation whatever to the impartial distribution of news. The order of the Board in nowise circumscribes the full freedom and liberty of the petitioner

**

* * 10

The Supreme Court has held that the guaranties of the first amendment do not extend to an alien; hence, that the immigration law which provides for the exclusion of anarchists was not unconstitutional as being in contravention of the first amendment. The Court said:

It is, of course, true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshiping or speaking or publishing or petitioning in the country, but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law." The Supreme Court has also decided that liberty of the press and of speech is safeguarded, not only by the first amendment but by the

•Reynolds v. United States (98 U. S. 145, 163).

New v. United States (245 Fed. 710, certiorari denied, 246 U. S. 665).

8 In re Rapier (143 U. S. 110. 134). Horner v. United States (143 U. S. 207, 213).

9 United States v. Burleson (255 U. S. 407).

10 Associated Press v. National Labor Relations Board (301 U. S. 103, 132–133). 11 United States v. Williams (194 U. S. 279, 292).

due process clause of the fourteenth amendment, which, by incorporation of the protection of the first amendment, prevents invasion by State action.12

In so holding, the Court recognized the same power in the States as that which exists in the Federal Government-to "enact laws to promote the health, safety, morals, and general welfore of its people" as a limitation upon the rights and freedoms guaranteed by the first amendment and hence that there is no abridgment of these rights to the extent that an exercise of such claimed right violates such laws concerning health, safety, morals, and general welfare.13 Chief Justice Groner had the same point in mind when, in the Trinity Methodist Church case, he said:

* * the regulatory provisions of the Radio Act are a reasonable exercise by Congress of its powers, the exercise of these powers is no more restricted by the first amendment than are the police powers of the States under the fourteenth amendment * * *. In either case the answer depends upon whether the statute is a reasonable exercise of governmental control for the public good.1 These statements do not mean—either in the case of the press or of radio broadcasting-that the States and the Federal Government are freed from the limitations imposed by the first amendment. The point is that action under such statutes of a police nature or "in the reasonable exercise of governmental control for the public good" does not constitute abridgment of the rights specified in the first amendment because those rights do not extend so far as to justify violation of such protective statutes, either of the Federal Government or of the States.

TAXATION

The Supreme Court has held that the imposition of a tax may constitute an abridgment of the freedom of the press. In the case of Grosjean v. American Press Company,15 the State Legislature of Louisiana imposed a license tax for the privilege of engaging in the business of publishing a newspaper which had a circulation of more than 20,000 copies a week and which made a charge for advertisements. The Court held that this was a violation of freedom of the press, for two reasons:

First, it is a restraint because its effect is to curtail the amount of revenue realized from advertising; and second, because its direct tendency is to restrict circulation.

Generally speaking, the following language of Chief Justice Hughes, in the Near case,16 sums up pretty well the basis upon which the freedoms of the first amendment may be so defined as to avoid abridgment while, at the same time, limiting them in the reasonable exercise of governmental control for the public good:

As has been noted, the statute in question

speaking of the Minnesota State statute there

does not deal with punishments; it provides for no punishment, except in case of contempt for violation of the court's order, but for suppression and injunction; that is, for restraint upon publication. * * * The objection has also been made that the principle as to immunity from previous restraint is stated too

12 Near v. Minnesota (283 U. S. 697, 707), and cases there cited.

13 Near v. Minnesota (283 U. S. 697, 707).

14 Trinity Methodist Church, South v. Federal Radio Commission (61 App. D. C. 311, 313, 62 F. 2d 850, 852; certiorari denied, 288 U. S. 599).

15 Grosjean v. American Press Co. (297 U. S. 233, 244-245).

16 Near v. Minnesota (283 U. S. 696, 715-716).

broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right" (Schenck v. United States, 249 U. S. 47, 52, 63, L. ed. 470, 473, 39 S. Ct. 247). No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthow by force of orderly government.

The constitutional guaranty of free speech does not "protect a man from an injunction against uttering words that may have all the effect of force (Gompers v. Bucks Stove & Range Co., 221 U. S. 439, 55 L. ed. 797, 805, 34 L. R. A. (N. S.) 874, 31 S. Ct. 492).”

TESTS OF DEFINITION OF RIGHTS AND ABRIDGMENTS THEREOF, APPLICABE TO ALL OF THEM

Against this background of constitutional law, it would not be seriously contended that the tests mentioned above were not equally applicable to all the rights and freedoms mentioned in the first amendment. As was well said recently by the Supreme Court:

The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption, supporting legislation, is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the first amendment. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights."

Now, I come to the proposed amendments of section 326 of the Communications Act.

Against this background of constitutional law, let us now consider section 16 of the bill, which proposes to amend section 326 of the Communications Act. For convenience, I have prepared a draft of the section as follows:

The legend is:

1. [Language of Act eliminated by bill]

2. Language added by the bill)

3. Language italicized suggested to be added.

4. Language lined out in black suggested to be eliminated.

17 Thomas v. Collins (323 U. S. 516, 529-530). Cf. Schneider v. Irvington (308 U. S. 147), Cantwell v. Connecticut (310 U. S. 296), Prince v. Massachusetts (321 U. S. 158), Unnited States v. Carolina Products Co. (304 U. S. 144, 152, 153), De Jonge v. Oregon (299 U. S. 353, 364). Cf. 1 Annals of Congress 759, 760.

326 (a) "Nothing in this Act shall be understood or construed to give the Commission the power [of censorship over the radio communications or signals transmitted by any radio station] or any supervisory power (to regulate the business of the licensee of any radio broadcast station, unless other is 8eif. eally anthorized in this aet:)

326 (b) "(The Commission shall have no power to censor, alter, or in any manner affect or control the substance of any material to be broadcast) by any radio (broadcast) station, (licensed pursuant to this Act) and no regulation, or condition, order, opinion or report shall be promulgated or [fixed] (imposed) or issued and no action shall be taken by the Commission which shall interfere directly or indirectly with the right [of free speech by means of radio communication] as guaranteed by the Constitution of the United States (and duty of the lieensee of any such station to determine, subject to the 1 mitations of this Act, the character and the source of the material to be broadeast; Provided, That nothing herein contained shall be construed to limit the authority of the Commission in its consideration of applications for renewal of licenses to determine whether or not the licensee has operated in the publie interest.") [No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.]

You will notice that I have used brackets to indicate the language of the act proposed to be eliminated by the bill. The language which is proposed to be added by the bill I have put in parentheses. The language which I suggest to be added has been indicated by red letters in those copies which have been handed to the committee, and is italicized in the other copies. The language lined out in black is that which is suggested to be eliminated.

The CHAIRMAN. Let me see if I understand this, now?

Mr. MILLER. If I read it through, I can point it out to you :

Nothing in this Act shall be understood or construed to give the Commission the power

That language is common to the act as it stands, and as it is proposed to be in the bill. Then the words

of censorship over the radio communications or signals transmitted by any radio station

are proposed to be omitted from the bill. The words "or any supervisory power," I suggest we add.

The words in parentheses

to regulate the business of the licensee of any radio broadcast station, unless otherwise specilcally authorized in this Act

are proposed to be added by the bill.

The CHAIRMAN. Now, will you read that section as it would appear, if the changes you are suggesting were incorporated.

Mr. MILLER. Yes. [Reading:]

Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station or any supervisory power to regulate the business of the licensee of any radio broadcast station.

That is the way I would have it.

Now, if you will hold the copy of the act before you, I will go on with my discussion. Perhaps you had better pull it out. You can have it before you as I go on.

In my estimation, this section of the bill seriously endangers the right of free speech by radio in the following respects:

(a) It eliminates "of free speech by means of radio communication," the language now in the act which expressly prohibits interference with the right of free speech by means of radio communication.

As the Communications Act now stands, the inclusion of these words clearly indicates legislative intent that the provisions of the first amendment shall apply to radio broadcasting and shall limit the power of the FCC in its administration of the act.

Elimination of the words will suggest to the Federal Communications Commission that it should no longer consider itself restricted by the constitutional amendment.

It will suggest to the courts, if the courts ever get an opportunity to examine the point, that Congress has changed its mind concerning the applicability of the first amendment to radio broadcasting. At is now stands, the first amendment applies to radio broadcasting, and the act, itself, makes freedom of speech as guaranteed in the first amendment applicable to radio broadcasting.

I am satisfied that if and when the question reaches the courts, the courts will decide that radio broadcasting does come within the guaranty of free speech as set out in the first amendment. However, no court can help being concerned by the apparent change in intent upon the part of Congress in this respect. If the words "of free speech by means of radio communications" had not been included in the Communications Act originally, there would be less danger from its elimination.

The CHAIRMAN. May I interrupt? Of course, you appreciate that it is very difficult to get the significance and the effect of the changes you are proposing when you see them before you for the first time, and you have no opportunity to read them, either with relation to the old legislation or with relation to the draft which is before us.

Mr. MILLER. I do, Senator.

The CHAIRMAN. But you have made a suggestion, and I appreciate that.

Mr. MILLER. You see, I am speaking from the point of view of several years on the United States Court of Appeals where it was my business to read legislation of this kind with very great care, to consider the implications of words of this kind, and to try to find what the legislative intent was. When I read legislation, I read it with a great deal more care, perhaps, than most people do. I realize fully what you have just said.

The CHAIRMAN. I want to give to you and to all others assurance that suggestions which are offered by the witnesses will have most thoughtful consideration by the committee.

Mr. MILLER. Thank you, Senator.

Senator MCFARLAND. Would the effect of your language be to prohibit the Federal Communications Commission from refusing to renew a license, no matter how poor the programs may have been over that station?

Mr. MILLER. If it is merely a matter of poor programing, it would; yes. My suggestion would prevent them from doing so. If by "poor programing," you would include any of the limitations which the courts have placed upon freedom of speech and press generally, then I should say, "No"; if, for example, there was contained obscenity, or if there were incitement to crime or violence.

Now, I shall come again to the question of renewal later. Because even there, in some of the cases, we get very serious questions as to whether there should be any consideration even upon renewal, and