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The Revival of the FCC's News Distortion Policy View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Washington University St. Louis: Open Scholarship Washington University Law Review Volume 78 Issue 4 January 2000 Reporting the Officialruth: T The Revival of the FCC's News Distortion Policy Lili Levi University of Miami Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Communications Law Commons, and the First Amendment Commons Recommended Citation Lili Levi, Reporting the Officialruth: T The Revival of the FCC's News Distortion Policy, 78 WASH. U. L. Q. 1005 (2000). Available at: https://openscholarship.wustl.edu/law_lawreview/vol78/iss4/1 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. Washington University Law Quarterly VOLUME 78 NUMBER 4 2000 REPORTING THE OFFICIAL TRUTH: THE REVIVAL OF THE FCC’S NEWS DISTORTION POLICY * LILI LEVI I. INTRODUCTION................................................................................... 1007 II. HISTORY OF THE FCC’S NEWS STAGING AND DISTORTION POLICY ............................................................................................ 1014 A. The Doctrine Prior to Serafyn v. FCC ...................................... 1015 1. The 1940s........................................................................... 1015 2. Development of the Policy in the 1960s ............................ 1016 B. The Recent Judicial Transformation of News Distortion: Serafyn at the FCC and the D.C. Circuit .................................. 1031 1. Procedural History ............................................................ 1031 2. Situating the Issue: A Transcript of The Ugly Face of Freedom ............................................................................. 1033 3. The FCC’s Decision .......................................................... 1039 4. The D.C. Circuit’s Expansion of the News Distortion Policy ................................................................................. 1042 III. CRITIQUE OF THE “NEW” NEWS DISTORTION POLICY...................... 1043 A. The Enhanced Dangers of the D.C. Circuit’s New Model of News Distortion ..................................................................... 1043 1. Insufficient Deference to the Commission’s Hearing Standard............................................................................. 1043 * Professor of Law, University of Miami School of Law. I am very grateful to Mary Coombs, Marc Fajer, Michael Graham, Bernard Oxman, Stephen Schnably, and Ralph Shalom for their comments; and to Vincent B. Flor, Ellen Patterson, and Diana Rolfs for their research assistance. In the interest of full disclosure, I should note that I was employed in the CBS Legal Department from 1983 to 1987. I had nothing to do with the 1994 program I discuss in this Article and, indeed, did little work regarding 60 Minutes while at CBS. 1005 Washington University Open Scholarship 1005 Levi.doc 04/24/01 5:00 PM 1006 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 78:1005 2. A New Requirement: Unwarranted Inferences from Evidence of “Obvious or Egregious” Factual Inaccuracies....................................................................... 1054 a. The Translation of “Zhyd”: An Instance of the Translator’s Dilemma ............................................... 1055 3. Second-Guessing Editorial and Production Choices........ 1064 a. Decisions on the Selection of Experts ....................... 1064 b. Investigative Obligations for “Inflammatory” Statements.................................................................. 1067 4. Judicial Revision of the Extrinsic Evidence Standard as Applied............................................................................... 1068 a. Privileging Certain Types of Reaction Evidence: After-the-Fact Complaint Letters .............................. 1069 b. Improperly Inferring General Patterns of Distortion: Public Statements on Newsgathering and the Presence of Written Policies on Distortion.. 1073 B. Lessons from Defamation Law .................................................. 1078 1. The Meaning of Meaning and Truth.................................. 1079 2. Comparison with Reckless Disregard ............................... 1080 3. The Administrative End-Run Around Tort Limitations: The Conflict Between News Distortion and Group Libel Doctrines .................................................................. 1083 IV. TWO UNSATISFACTORY FALLBACK POSITIONS ................................ 1088 A. Weaknesses of the “Traditional” News Distortion, Slanting, and Staging Policy...................................................... 1088 B. The Narrowing “News Staging” Alternative ............................ 1095 V. NEWS DISTORTION AND THE PUBLIC INTEREST: OF CONFLICTING DEMOCRATIC VALUES................................................ 1098 A. Policy Arguments in Support of Regulating News Distortion ................................................................................... 1098 1. The FCC’s Regulatory Values—Truth and Press Integrity.............................................................................. 1099 2. The Modern Reality of the Press: Public Ambivalence and Structural Pressures on Press Objectivity.................. 1101 3. Possible Interventionist Rationales ................................... 1105 B. Policy Arguments in Favor of FCC Retreat.............................. 1109 1. The Democratic Harms of “Official Truth”...................... 1109 2. News Distortion Regulation as More Harmful to Speech Norms than the Fairness Doctrine........................ 1111 3. Factors Skewing Governmental Accounts of Truth: Chilling Interest Group Strategies..................................... 1114 https://openscholarship.wustl.edu/law_lawreview/vol78/iss4/1 1005 Levi.doc 04/24/01 5:00 PM 2000] REVIVAL OF THE FCC’S NEWS DISTORTION POLICY 1007 4. The Illusion of Neutrality and Accuracy............................ 1116 C. The Democratic Value of Different Press Traditions................ 1121 VI. CONCLUSION ...................................................................................... 1129 APPENDIX: APPLYING THE “OBVIOUS” NEWS DISTORTION STANDARD ......................................................................................... 1133 A. Close Analysis of Claimed Factual Inaccuracies in the 60 Minutes Broadcast..................................................................... 1133 1. The Galicia Division of the Waffen SS .............................. 1134 2. Events in Lviv..................................................................... 1138 a. The Pre-occupation “Killing Spree” ........................ 1139 b. The Pogroms in Lviv.................................................. 1140 c. Historical Footage of Ukrainian Brutality................ 1142 d. The Time Magazine Photograph............................... 1144 3. The Ukrainian “Boy Scouts”............................................. 1145 4. CBS’s Alleged Slander of Ukrainian “National Heroes”.............................................................................. 1146 a. Stefan Bandera .......................................................... 1146 b. Simon Petlura ............................................................ 1147 c. Roman Shukhevych.................................................... 1148 B. On Perspective: Multiple Readings of The Ugly Face of Freedom ..................................................................................... 1151 I. INTRODUCTION What obligations should the media have to promote the public interest in their programming decisions? The advent of digital television has occasioned a fresh look at this question.1 While fierce controversy has broken out over proposals to require broadcasters to give political candidates free airtime during election contests, little critical examination has attended a key 1. The report of the President’s Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters (known colloquially as the “Gore Commission” or the “Advisory Committee”) recommended voluntary industry action. Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, Charting the Digital Broadcasting Future: Final Report of the Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, available at http://www.ntia.doc.gov/ pubintadvcom.piacreport.pdf, at 44 (December 18, 1998) [hereinafter Advisory Committee]. More recently, the Federal Communications Commission (FCC) requested public debate on the question. Public Interest Obligations of TV Broadcast Licensees, 14 F.C.C.R. 21,633, available at 1999 WL 1211119, ¶ 8 (Dec. 20, 1999) (notice of inquiry) [hereinafter Public Interest Obligations]. See also Press Release, Federal Communications Commission, FCC Chairman Kenard Identifies Eleven Principles for Broadcasters in Serving the Public Interest (Jan. 18, 2001) (on file with author). Washington University Open Scholarship 1005 Levi.doc 04/24/01 5:00 PM 1008 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 78:1005 question: Should the Federal Communications Commission (FCC) use its regulatory powers directly to try to improve the quality of news reporting by the broadcast media? Historically,
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