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of the first amendment is broad enough to cover methods of mechanically, scientifically amplified speech." That is the whole point that I have been making over these months about the actions of the Federal Communications Commission,

I have been trying to get that issue laid out, and I say to you, and I have said to the Commission right along, and I have said it in as friendly a way as I could, and I have said it in lurid language, hoping to get the point over, that all I want them to do is to give us a chance to get that question to the Supreme Court of the United States, and I haven't any doubt how it will be decided.

When the Supreme Court comes to decide the question it will undoubtedly look to its decisions with regard to other types of speech and with respect to the press. You have plenty of cases telling you what that will be. That is why I have made the point that no person representing the press would concede for a moment that editorializing was not a proper use of freedom of the press, or that editorial comment, expression of opinion, was not a proper method of exercising freedom of speech.

That is why I have pointed out so consistently the Mayflower decision as being a violation of the first amendment, a violation of section 326, a violation of all the decisions of the courts interpreting the first amendment, because that decision says in terms that a licensee shall not be an advocate. He is forbidden to editorialize.

Mr. Knight, you already have a statement by the Commission that in the use of a newspaper transmitted by facsimile you cannot editorialize. You don't have to wait for action by the Commission. You have it on the record already. That decision of the Commission in the Mayflower case still stands as its decision; that decision was referred to in the Commission's report which we call the Blue Book, as being the pivotal decision which the Commission will use in determining future cases; "in the crucible of particular cases," what they will do in granting or denying applications for renewal.

That is the whole issue that I have been working on. All I want is a chance to give the Supreme Court a look at it and determine what the decision should be. I would be very happy if the Commission would reverse itself. I don't think the Commission needs to fear loss of face or prestige if it does reverse itself upon that proposition. Even the Supreme Court reverses itself occasionally.

I think the Commission might perform a very valuable service in improving and increasing the good will we have seen manifested here today if it would clear up that proposition.

So long as the Mayflower case stands as the decision of the Commission, so long as it appears in the 'record as the guiding precedent to decide what they will do in future cases, I say there is a violation of the Constitution, of the act which Congress passed, and an exceeding of power upon the part of the Commission. That has brien my whole point, and that is my answer to your question. [Applause.]

Mr. Fly. Will you inake it clear that Judge Miller is not in private practice? [Laughter.]

Chairman KOBAK. You folks paid $5 to get in here tonight, and you have had your money's worth over and over. I just got to thinking, while the Judge was talking, and I had a little trouble following him (because I'm just an engineer and slow, though I'm getting it in pieces. I hate to admit it. I have no business being a moderator.) I got to thinking, however, that if our salesmen were that logical we would never sell any advertising. [Laughter.]

Someone handed me a note saying, “To what extent does the Blue Book restrict the freedom of speech ?" You just saw what happened. The Blue Book, which to me is still a colorless book and I don't know where they got the "blue” business, encouraged freedom of speech. What have we had but freedom of speech ever since that book came out? I hope they never bury that book because then we will run out of stuff to talk about, and we'll have to go back to talking about how to sell advertising, and that is a dull thing.

Commissioner Jett would like to say something, and this is not going to be about engineering.

Mr. JETT. I just want to say one thing after listening to Judge Miller:

Certainly, under section 326 of the act the Commission has never issued a regulation or imposed a condition which in any way affects freedom of speech. Let's not adjourn here tonight and assume that as a result of the judge's remarks the Commission might have issued some regulation which would affect our individual freedom of speech.

I am speaking as an engineer, Judge, not as a lawyer. Also I want to emphasize that at noon today Charlie Denny, who of course can speak for himself and who is in the audience tonight, made the very clear statement that all of the Commissioners believe in freedom of speech.

Thank you. [Applause.]

Chairman KOBAK. I think it is nearly my bedtime, and unless somebody else is dying to get into the act-Charlie, do you want to say anything? Next year we're going to charge $10 for this dinner. [Laughter.]

DENNY EXPLAINS FCC ACTIONS

Mr. DENNY. It is getting late and I am not going to keep you more than a minute or two.

Perhaps we can move a little further toward the solution of this problem if I would indicate just how far I go with Judge Miller's legal argument. The judge takes three steps. First, he deals with the Constitution and the Communications Act. Second, he deals with the Mayflower doctrine. Third, he deals with the Blue Book. I take them in the same order.

First, I agree wholeheartedly that the Commission's powers flow from the congressional power to regulate interstate commerce. I agree 100 percent that if the power “to regulate commerce among the several States and with the Indian Tribes” is to be interpreted as including radio, the first amendment likewise includes radio. I don't think there is any doubt in the world about it, that the first amendment guarantees freedom of speech by radio, by facsimile, by any other means.

I also agree that section 326 of the act specifically forbids the Commission to issue any regulation abridging freedom of speech. In this connection, I would say I write a thousand letters a week to people who write to the Commission, saying, "I don't like this program" or "I asked for time and they didn't put me on the radio." I write a thousand letters a week, all of which read “Section 326 of the Communications Act provides as follows." Then I quote it and conclude accordingly, "you should address your communications to the licensees." We give them your address. (Laughter.]

The judge's second step is to come to the Mayflower decision, and he says that freedom of speech, freedom of the press, carries with it the freedom to editorialize. I agree. I think it is constructive to get the area of disagreement just as narrow as possible.

President MILLER. This is the best thing that has happened all week.

Mr. DENNY. Finally, I agree with Mr. Knight that if a newspaper is going to make deliveries to your living room by facsimile, it has got to have exactly the same privileges and the same freedom as the newspaper which the boy leaves on your doorstep that is printed with ink and type. Before passing to the next subject, I should like to point out that Mr. Knight and Mr. Willard are not correctly advised as to the case of the New York Daily News. The Commission has not ruled that evidence of editorial policy is "required" or even that it is a “proper subject of inquiry" in a proceeding involving an application for an FM station. In that case, the American Jewish Congress appeared in opposition to the News' application and sought to present testimony which in its view was designed to show that the News was not qualified to operate a station. This evidence consisted of content analyses which the congress contended established bias. The proceeding was not being held before the Commission itself but before a member of our staff who served as a hearing officer. If he had excluded the evidence the Commission would never have had the opportunity to evaluate it. Therefore, he was instructed to admit the evidence so it could be reduced to writing in the transcript and in that way, preserved for the Commission's evaluation. If, when we look at it, we decide it is a proper subject for consideration, we will write an opinion giving our reasons. On the other hand, if when we look at it we decide it is not a proper subject for consideration, it can be disregarded or even stricken from the record. However, up to this point, nothing has been decided. Don't jump the gun. Please, wait until the Commission rules before you make a judgment as to whether our ruling is right or wrong.

Now we take the second step and come to the Mayflower doctrine. So far Judge Miller and I are side by side-are you still with us, Larry? All right. I am trying to pull both ends of the table into the middle. Ken? All right. When it comes to the Mayflower doctrine, here is what we run into :

That case has been described, and I think reasonably accurately, by saying that the Commission says you can't editorialize. Here is what is involved :

A man in New England got a radio station, and he used it to broadcast editorials urging the election of various candidates for political office or supporting one side or another of various questions of public controversy. The Commission. found that no pretense was made at objective impartial reporting. The Commission got an awful lot of complaints, and the Commission held a hearing, and was very troubled by the question of whether a radio station should properly beused for an individual's own personal purposes, as distinguished from presenting both sides.

Well, what happened? I am as sorry as the Judge that the case didn't get to court. But after the hearing, the man came in and said, "I am going to change my mode of operation. I agree with you that radio should present both sides." So, the Commission renewed his license. And that was, perhaps, a mistake because as a result we didn't get a test case on the question into the courts. But, for better or for worse, out of that proceeding we got the Mayflower doctrine, which is, in the Commission's words, “The broadcaster cannot be an advocate. Freedom of speech on the radio must be broad enough to provide full and equal. opportunity for the presentation to the public of all sides of public issues.”

Now, the Judge and I are in agreement—until we get to the Mayflower case. On the question of the Mayflower case, I want to say frankly to you, I don't know the answer. I have an open mind and I am ready to review it and if it is demonstrated to be a bad precedent, I am ready to vote to throw it in the ashcan and try to get a better one. But this is what is involved :

Now, I don't know whether it flows from the scarcity of frequencies or whether it is because this particular medium is peculiar in that it reaches into your“ homes. You can buy any newspaper you want. You can go to any movie you! want. But the radio comes into your home and there is the sentiment on the part of a great many people that if it is to come into your home, then it ought to bring with it a balanced and fair presentation. It ought to give you both sides of public issues.

Now, there is this further problem if radio stations are to be advocates: We all agree they have to have licenses or they can't operate. We can start from that. Some physical, technical regulation is necessary. There are not sufficient frequencies for everyone who would like to broadcast. And this will probably always be true no matter how generous an allocation for new broadcast services, such as FM and television. Now, it is our job at the FCC to choose the licensees. What are we going to do, for example, here in Chicago in choosing the licensees? Do we have responsibility to see that all the licenses don't go to the Republicans, and that the Democrats also get licenses? Do we have a responsibility to achieve some sort of a balance on a political basis? What formula do we use? What of religious considerations? I think that almost everyone would take the view that if a broadcaster is to be an advocate there must be some balance of the views of broadcasters on all important questions. You can't put all of these facilities in the hands of one group or all into the hands of another.

Well then, if the broadcaster is to be an advocate, that makes it necessary for the Commission in examining license applications to go into the question of what they will advocate—that is what their editorial policies are going to be and what their ideologies are, and what their politics are, and what their philosophies are. I don't know if that is a good thing. Under the present system we don't have to rely on licensing as a means of achieving a balancing of views on the air. Each broadcaster is individually responsible for a balanced presentation regardless of what his own view may be.

Well, those are the questions that trouble me on whether we should abandon the Mayflower doctrine, and I think that more thought should be given to that. I wish, Judge, you and the others would think about these problems which I have raised before we consider the abandonment of the Mayflower doctrine. We must know where that course leads.

Now I will take the third step and then I will be finished. On the Blue Book, I say again, as I said this afternoon, I don't think any issue of free speech is involved in the Blue Book. What we are saying in the Blue Book is, in essence, that radio has indulged in commercial excesses. We urge you to take steps to correct those excesses. We urge that radio should not be just an entertainment medium, but that it ought to bring the discussion of public issues. We urge you to have a reasonable amount of sustaining programs. We urge the broadcasters out in the various cities and communities throughout the Nation to originate some live programs of their own.

I think that a fair appraisal of the Blue Book indicates that very definitely it tends to break down restrictions which now exist on freedom of speech over the air and actually will make radio freer than it is today.

Does anybody have any questions?

Chairman KOBAK. Next year this dinner is going to be $15. The price is going up. You have been very kind to sit here. I think that these people have made a great contribution and I am glad that a record has been made of everything that has been said.

Two things have come to my mind from what I have heard and they are: Does the public know what we mean by freedom of speech and freedom of press? Do we know in this business, the newspaper business, and the motion-picture field? Do we really know the answer? I don't think we do exactly, and I think that we ought to do something about it, and it is a job that the NAB ought to look into; and, secondly, I feel if we use the freedom that we have and use it right, we won't have to spend as much time defending it.

Thank you gentlemen for your contributions this evening. The meeting is adjourned.

INDEX

Page
Accusations (see also Libel and slander)

431-432
Adair v. U. S. (208 U. S. 161, 180).

113
Adams, Isaac-

214
Adams, John and Sam..

216
Administrative Procedure Act--

76, 92, 95, 188–189, 191, 336, 363, 369
Section :
5 (d).

67, 84–85, 104, 190_191
8 (b)

191
10_

105
19 (e)--

84–85, 92
Advertising (see also Free speech; Alcoholic beverages),

233-236
Controversial matters_

246–247, 478
• Time devoted to--

181-182
Aeronautical Radio, Inc_

437-438, 440
Aeronautical safety---

438 441
"Aggrieved or adversely affected” party. (See Practice and procedure.)
Air Coordinating Committee--

439, 441
Alcoholic beverages. (See also Twenty-first amendment.)
Advertisement of_

453-465, 468–470, 478 479, 571-574
Wet and dry States.-

469, 571
Allocation of frequencies. (See Equitable distributions; Frequencies.)
Ambassador, Inc v. U. S----

388
American Bar Association Journal..

173, 619
American Broadcasting Co--

272, 293, 300_371, 461, 565
Stations owned by---

64
American Council of Christian Churches.

376_377, 378, 382, 384-385
American Express Company v. U. S.

386
American Jewish Congress_

522
American Telephone and Telegraph.

445
Annals of Congress----

117
Antitrust Laws (see also Sherman Act; Monopolies) -

165,

276, 329, 358, 368, 380, 425
Application to broadcasters_

332, 340–342, 347, 427-428
Penalties

341-342
Appeal. (See Practice and procedure.)
Applications (see also Licensees).

231, 313, 344
"Character"

195, 344, 347–348
Competing applications.

35, 87, 195
"Other qualifications”.

186–187, 195, 344, 347–348
Promises in

222, 231
Appropriations-

49
Archinard, Paul_.

412
Armstrong Dr. Edwin H..

498
Arnold, Thurman_

446
Arnoux, Campbell.

269
Asch, Leonard L.

202
Associated Press.

155, 295, 372, 377, 410_411, 499, 507, 513
Associated Press v. KVOS__

129
Associated Press v. National Labor Relations Board

115
Associated Press y. U. S...

467
Atheists.

176–177, 243, 366, 407
Atlantic City, conference in.

339, 439
Atlantic Refining Co--

223, 237
653

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