us that "the law is whatever is boldly asserted and persuasively maintained.”

Mr. MILLER. That is the lawyer's point of view.

The CHAIRMAN. And it seems to me that when you look at the multitude of court decisions, and when lawyers spend most of their time trying to reconcile one decision with another decision, we ought not to be overawed by any particular decision that comes down.

Mr. MILLER. I agree. Let me give you an example: I wrote an opinion when I was on the court here, which was reversed by the Supreme Court; one judge writing the opinion of the Supreme Court. I wrote an opinion in another case here, in which I followed the decision of the Supreme Court. I was reversed in that one. And the only judge who dissented was the one who had written the previous opinion. He and I were the only ones who agreed as to what his opinion meant.

So I am in perfect sympathy with you.

Senator MCFARLAND. Mr. Chairman, I did not want it to be understood from what I had to say that I am critical of the programs as a whole that we receive over the radio, or that I favor any close supervision. The chairman has expressed my views better than I could have myself.

Mr. MILLER. Now, let me pick that up on two points before I go ahead.

Senator JOHNSON. I want to say something before you go ahead, and then I will not interrupt any more.

Mr. MILLER. All right, Senator. I come from way out West too. I like the western point of view.

Senator JOHNSON. Thank you, sir. I am neither lawyer nor judge, so you can be perfectly frank with me, and you need not extend any of the nice little courtesies that I see exchanged here between the rest of you. You can be brutally frank with me.

But you said something a while ago about the electrical chaos, as I think you called it, that existed prior to 1927. Congress was asked to do something about it.

Mr. MILLER. That is correct.

Senator JOHNSON. And Congress did do something about it.
Mr. MILLER. Correct.

Senator JOHNSON. The thing that they did about it was to restrict stations in using the air. That is the thing that they did. They worked it out in an orderly way. It was the only way it could be worked out.

Mr. MILLER. That is right.

Senator JOHNSON. But when they did that, they extended special privilege to broadcasters. They were given a license to operate on a certain wavelength. When they gave that privilege, the broadcaster certainly had to assume the responsibilities attendant upon receiving that privilege. And that is their responsibility yet, and I think that is entirely fundamental to this whole question.

Mr. MILLER. I agree with you thoroughly, Senator.

Senator JOHNSON. Congress has given something, but Congress must guard that grant in the interests of the people.

Mr. MILLER. That is right. Now, let me make one limitation on that: Congress does not sit as a giver of gifts. Congress is a body

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of delegated power. Congress has no power except what is given to it in the Constitution. All other powers are reserved to the States and to the people. So that when you speak of Congress as giving a privilege, or a gift, or something of that kind, you are really speaking of Congress exercising the power which is given to it by the Constitution. The only power which Congress had, or attempted to exercise in the control of broadcasting in interstate commerce was under the commerce clause, to regulate commerce between the United States and foreign nations, with the Indian tribes and between the States. Now, there is no magic in that. That is the same kind of power that it has to operate the regulation of railroads, and things of that kind. And whatever power it has under the commerce clause is expressly limited by the first amendment. It has no power to interfere with freedom of speech, or press, or religion, and so forth.

So that when the chairman speaks of the necessity of certain standards being maintained, and when you speak of the necessity of certain standards being maintained, it does not follow that Government shall see that those standards are maintained. Most of the standards of performance in this country are maintained by the people who are doing the operating. You might just as well say that a newspaper could be required to maintain standards.

Let us take a case here. I bring it up later, but it comes up just as well here. God made what frequencies we have. It is also said that only God can make a tree. I saw in the Star night before last that the supply of newsprint is now lower than it has ever been before. The conservationists tell us there is a greater shortage of newsprint than there has ever been. Some of these days someone is going to be asking you to set up a commission to distribute newsprint to newspapers and magazines throughout the country. You have exactly the same kind of a situation as you had when Congress was asked to regulate commerce in electrical impulses between the States. If Congress does step in, under those circumstances, to distribute newsprint, it will be under its power under the interstate commerce clause.

Now, suppose a commission is set up, and it is told to examine the supply of newsprint and decide which newspapers, which magazines, shall have newsprint. Upon what basis shall they make the decision? Well, they will inquire into the public interest, convenience, and necessity. The public interest, convenience, and necessity, so far as the newspapers and magazines are concerned, is that they shall serve in the public interest with good content. Are you going to give a Government agency power to tell the newspapers and the magazines what their contents shall be? That is exactly the question you are coming up to.

The CHAIRMAN. That is where I part from you entirely. I do not accept in any degree that there is no difference between the power of Government with respect to newspapers and the power of Government with respect to radio communication.

Mr. MILLER. We do part definitely there, Senator.

The CHAIRMAN. And I am going to venture the opinion that you people who are interested in radio communication, if you are placing your feet on that foundation, are just indulging in dreams. Because Congress will not stand, in the long run, for any such interpretation. Mr. MILLER. I hope Congress will. The people of England fought

for 200 years to get freedom of the press, from exactly this kind of government regulation. When our Constitution was established, so the historians tell us, the major reason for their opposing government by England and desiring separation was the interference with freedom of speech and press. Now, if radio broadcasting has to fight a hundred years to get things settled on this basis, I am going to be fighting so long as I last in that hundred years.

The CHAIRMAN. We will probably not be here when that hundred years runs out, so we need not worry about it.

Mr. MILLER. May I ask you a question, Mr. Chairman?

The CHAIRMAN. I am not a witness.

Mr. MILLER. But it is on the point that you were just discussing. The CHAIRMAN. I have said this over and over again, and I will repeat it: We are not witnesses. We are anxious to hear whatever you gentlemen have to say about this thing. We welcome your suggestions. We welcome your criticisms. And we will take it all under proper consideration when the hearings have been ended.

Senator MCFARLAND. May I make a statement, and then the judge can comment on it if he wants to:

I agree with the chairman that maybe we had better get along here on this testimony, but I just want to add one thing to Senator Johnsons' observation. I think when the Senator said that Congress grants a license, he meant Congress as representative of the people grants the license.

Senator JOHNSON. Why, of course. I thought that was understood. Senator MCFARLAND. But the judge did not indicate that. He was talking about Congress doing that. And since Congress is the representative of the people, the people have some rights in regard to these things.

Mr. MILLER. But when Congress as a representative of the people does something, it can do only what the Constitution tells it it can do. And it does not make any difference whether they act as individuals or as representatives of the people in that capacity. The courts have certain functions. The Congress has certain functions. The President and the executive departments have certain functions. They are all representatives of the people. But they cannot go beyond the power vested in them by the Constitution.

My position is this: What you are proposing, the philosophy which is involved in your section 16 of this bill, to amend section 326, involves a change in the Constitution. Now, if you want to change the Constitution, all right. Initiate a constitutional amendment.

The CHAIRMAN. I am just in total disagreement with you that we are casting the Constitution into the wastebasket.

Senator MCFARLAND. May I say something, Mr. Chairman? The CHAIRMAN. Now, you suggested that we proceed with the hearing, Senator McFarland. But you had something to add?

Senator MCFARLAND. Yes; I just wanted to mention one thing that I hope the judge will cover when he gets to it. That is, that in discussing this matter, I perfectly understood what Senator Johnson meant when he referred to Congress. I understand that he meant the representative of the people. But it did not seem to me that the judge had that in'mind.

Senator JOHNSON. I think he understood, all right. And I think everybody else did.

Senator MCFARLAND. Well, the argument did not indicate it. I think that this is one thing that we have got to remember. And in considering this matter, if you have not touched upon it, when you advocate no supervision at all as to the kind of programs, in considering whether a license should be renewed, there is something that I want to call to your attention. I am not talking about day-to-day supervision, but merely that reflected in the action of the Commission at the time when the station comes up for renewal of its license.

There is just as much of a monopoly, or at least a partial monopoly in these stations as there is in connection with electric lights. There is a limitation imposed by nature. There is only a limited number of frequences. There are only a certain number of stations which can receive licenses. And there is likely to be more limitation in the future than there is now.

Recently the Commission has been granting a lot of licenses on account of FM. But it is a monopoly. It is at least a partial monopoly. And you do not have any partial monopoly in a newspaper. You can set up a thousand newspapers in a town if you can make a living at it.

The CHAIRMAN. From now on, I am going to repress myself and let you continue, Judge.

Mr. MILLER. I don't mind, as far as I am concerned. I work best in this way.

The CHAIRMAN. I am a little concerned, though, with proceeding with the hearing as rapidly as possible, as I indicated to you.

Mr. MILLER. Let me go ahead, then, from where I left off. I am down at the bottom of page 13, in the last paragraph. The particular danger from the elimination of the language comes from the probable interpretation of the elimination by the Federal Communications Commission. In some of its briefs, attorneys for the Commission have contended that the first amendment does not limit the FCC with respect to radio broadcasting; several decisions of the FCC reflect the same point of view; the Blue Book, recently issued by the FCC, reflects the opinion that the first amendment does not control the FCC; the elimination of the language from the act, as proposed by section 16 of the bill, will give even greater courage to the FCC to expand its administrative interpretation, and further to encroach upon the rights of the broadcaster in the field of free speech by means of radio communication.

(b) The second respect in which section 16 of the bill endangers the right of free speech by means of radio is that it adds four new phrases which will become the subject of administrative interpretation and further expansion of power by the FCC, as follows:

1. Lines 4 and 5, the words lined out in red, "unless otherwise specifically authorized in this act."

Those are new words proposed to be added.

This will become a subject of interpretation by the FCC. It will make it possible for the Commission's lawyers to search through the act to find special authorization for the exercise of power by the Commission in the regulation of the business of station licensees. As will be pointed out by witnesses who will follow me, there are provisions in other sections of the bill which do, specifically, authorize the FCC to expand its regulation of the business of the licensee beyond

powers now given by the existing act. That this will encourage indirect infringement upon freedom of speech by means of radio is already indicated by material contained in the Blue Book recently issued by the FCC, which undertakes to require broadcasters to change their program content on the theory that they are making too much money and should spend a larger proportion of it for radio programing. Whatever the merits of such a contention may be, it is obviously not a subject for Government control, but for determination by the broadcasting licensees themselves.

And at that point, Senator, let me make this statement:

When you say that radio broadcasting is a monopoly, just as electric lights, or other utilities, I want to say there is this essential difference:

When Congress exercises its power as a representative of the people to regulate interstate commerce with respect to electric lights or other utilities, the Congress is not working under the limitations of the first amendment. But when they regulate radio broadcasting, which is a means of communication, they are working under the limitations of the first amendment, and their powers are limited proportionately.

It becomes, then, a matter for the broadcaster, just as it does for the newspaper or the church, or anybody else acting under the first amendment, to exercise professional self-discipline over his performance. That is what we should look to, and do look to in America for the control of the content of the communications which are sent out to the people.

As Judge William Denman has well said:

When the Constitution speaks of freedom of the press, it refers to the freedom of private and nongovernmental persons or bodies engaged in news gathering and dissemination from interference by governmental agencies. That is to say, that the public function in gathering and dissemination of news is presumed by the Constitution to be in private hands. * * The radio performs a function in the publication of news similar to that of the press

*

* * 18

2. In line 7, I refer to the words "the substance of," which I have stricken out. That is new language which begins in the beginning of section 326 (b), as it appears in the bill:

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

*

* *

This is very ambiguous language, which will at once be subjected to the process of administrative interpretation by the FCC. Just what is "the substance of"?

Senator MCFARLAND. Do you want to strike that out?

Mr. MILLER. I want to strike that out.

Senator MCFARLAND. It seems to me as though you are just arguing against yourself now.

Mr. MILLER. No; let us see whether I am. Prohibiting the Commission from censoring, altering, affecting, or controlling "the substance of" any material to be broadcast assumes that it shall have power to censor, alter, affect, or control other than the substance of the material. They look for something to censor. Censoring, altering, affecting, and controlling must operate on something; if not on the substance of the material, then what is it to operate upon? If it

18 Associated Press v. KVOS (80 F. 2d 575, 581).