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3L/ o97L/ Fq1E FRED W. FRIENDLY /THE GOOD GUYS, THE BAD GUYS and the FIRST AMENDMENT Free Speech vs. Fairness in Broadcasting ILLeR10.;‘" ST. MARY'S COLLEGE VINTA E ROOKS A Division of Random House , •- New York 15882' VINTAGE BOOKS EDITION, February 1977 Copyright 0 1975, 1976 by Fred W. Friendly All rights reserved under International and Pan-American Copyright Conventions. Published in the United States by Random House, Inc., New York, and simultaneously in Canada by Random House of Canada Limited, Toronto. Originally published by Random House, Inc., in May 1976. Library of Congress Cataloging in Publication Data Friendly, Fred W. The good guys, the bad guys and the first amendment. Bibliography: p. Includes index. I. Broadcasting—Law and legislation—United States. 2. Broadcasting policy—United States. I. Title. [KF2805.F7 1977] 343'33'0994 76-13144 ISBN 0-394-72320-1 Manufactured in the United States of America For RUTH W. FRIENDLY, who traveled all the way from Red Lion to Tulsa, from Media to Culpepper . \ 1 THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a re- dress of grievances. RATIFIED DECEMBER 16, 1791 THE FAIRNESS DOCTRINE To devote a reasonable amount of broadcast time to the discus- sion of controversial issues; and To do so fairly, in order to afford reasonable opportunity for opposing viewpoints. FCC, 1949; CODIFIED IN LAW, 1959 THE PROBLEM ... [in] some areas of the law it is easy to tell the good guys from the bad guys .. In the current debate over the broadcast media and the First Amendment .. each debator claims to be the real protector of the First Amendment, and the analytical problems are much more difficult than in ordinary constitutional adjudi- cation ... the answers are not easy. JUDGE J. SKELLY WRIGHT U. S. COURT OF APPEALS (D.C.) IN A SPEECH BEFORE THE NATIONAL ( LAW CENTER, GEORGE WASHINGTON UNIVERSITY, JUNE 3, 1973 t CONTENTS Foreword xiii 1. Red Lion: The Attack Lasted Two Minutes 3 2. The Birth of the Fairness Doctrine: From Aimee Semple McPherson to Red Lion 12 S. Red Lion: Conversation in the Fish Room 32 4. Red Lion: The Race to the Circuits 43 5. Red Lion: Judgment Day in the Supreme Court 61 6. WXUR: Killing Gnats with aSledgehammer 78 7. WLBT: Line Trouble in Mississippi 89 8. Unprotected Speech: Some Commercials May Be Hazardous to Your Health 103 9. The Paid-Time Case: The President's Use of Television 121 10. Pensions: The Broken Promise and the Splintered Bench 142 11. Distortion in the News .. or about the News?: The Case against the Cronkite Show 167 12. Fair vs. Free: Squaring Tornillo and Red Lion 192 13. Escaping the Either/Or Trap 199 14. Walking the Tiger Back 223 Source Notes 237 Select Bibliography 255 Acknowledgments 257 Index 261 4 FOREWORD "Television writes on the wind," as one President of the United States put it.' "There is no accumulated record which the his- torian can examine later with a 20-20 vision of hindsight, ask- ing .. How fair was he tonight? How impartial was he today? How honest was he all along?" That question of fairness has pre- occupied American Presidents ever since Calvin Coolidge talked into the first carbon microphone. It must also concern the mil- lions of citizens who depend upon radio and television as their swiftest and often primary source of news. It was this concern of the Congress and the Federal Communications Commission which created the Fairness Doctrine. Once, in aclassroom of journalism and law students at Colum- bia University, I experienced one of those awkward moments when a seemingly elementary question forced my rhetoric to out- run my analysis. The question was, "What are the origins of the Fairness Doctrine, and what is the relationship of the Red Lion case to Brandywine and Carl NIcIntire?" The answers satisfied neither me nor the class. Subsidiary questions from the same stu- dent: "How did the landmark Red Lion case get its name, and if the equal-time rule is different from the Fairness Doctrine, why do both regulations contain some of the same language?" Further, "Why did Red Lion reach the Supreme Court and how long did it take?" I finally sought relief by saying that I did not know, and I promised to be better informed by next week. The answers took two years, and involved a trip to Red Lion, Pennsylvania, and a FOREWORD xiv twenty-thousand-mile excursion through the fifty-year thicket of regulatory history. It also involved a search through the murky record of the 1964 presidential election, in which the roots of Red Lion are intertwined. More than seventy-five participants in this drama were willing witnesses, although a few will not view the facts exactly as I do, and not all will share the conclusions I reach. One of the earliest lessons Ilearned as adocumentary producer was to keep the focus narrow, to use the "little picture" to illumi- nate the whole. In this inquiry the larger picture is broadcast regulation and the quality and freedom of radio and television news in America. The small picture is aview of the Fairness Doc- trine, one hopes without the subjective bias of one who has spent all his professional life practicing or teaching journalism. This book is basically adocumentary about Red Lion, its ghosts and a series of other fairness cases which grew out of that historic de- cision. It is not intended as an examination of the equal-time provisions of Section 315 of the Communications Act of 1934 (which apply only to elections). The equal-time provision is a crucial subject for another book, perhaps to be written in the wake of the 1976 election, when the stopgap decision making, confusion and posturing involving debates, news conferences and "bona-fide news events" concerning candidates have subsided suffi- ciently to determine whether Section 315 should be repealed or drastically revised. This volume does not concern itself directly with public broadcasting, prime-time access, violence on tele- vision, multiple or newspaper ownership, children's programing or any of the other critical, yet unresolved conflicts of our na- tional communications pol icy. The story of Red Lion is traced in detail, not only because of its impact on broadcasting, but because it dramatizes the method by which a well-intentioned law can be manipulated to mute "noxious views," as perceived by one group of politicians. Red Lion also provides an opportunity to study the complex route by which an obscure case, involving air time costing less than the re- tail price of one copy of this book, worked its way up through the regulatory process to the Supreme Court of the United States. One of the temptations Ihave tried to avoid is projecting the founding fathers' eighteenth-century vision of free speech to the limited-access miracle of telecommunications in the last third of FOREWORD XV the twentieth century. Their Constitution, and especially the Bill of Rights, is a constantly evolving instrument, and the prior- restraint, freedom-of-the-press protections we live under are much more the product of Holmes, Brandeis and Black than of Jeffer- son, Madison or even Patrick Henry. To claim that they would turn in their graves at the idea of the Fairness Doctrine, or at the thought that the First Amendment does not apply absolutely to radio and television, is, to quote historian Leonard Levy, to "anticipate the past by succumbing to an impulse to re-create it so that its image may be seen in a manner consistent with our rhetorical tradition of freedom, thereby yielding a message that will instruct the present." 2 Newspersons are comforted by the Jeffersonian ideal that "our liberty depends upon the freedom of the press and that cannot be limited." But there is equal discomfiture in Jefferson's 1804 letter to Abigail Adams: "While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the right of the states and their exclusive right to do so."" Indeed, Jeffer- son's draft of the First Amendment was considerably less absolute than Madison's and that which the Congress finally adopted.* In anticipating the past and projecting the 1791 Bill of Rights, each segment of our society has selected its own sacred cows. Jour- nalists seek their protections in the absolutism of the First Amend- ment words: "Congress shall make no law .. abridging the free- dom of speech or of the press ..." Others interpret the First Amendment to mean that Congress did not surrender its censorial power only to have it monopolized by powerful corporations answerable primarily to their stockholders. "Freedom of speech for whom?" asks one scholar. Caught between those two extreme •Jefferson's concept of freedom of speech and of the press would have included certain limiting exceptions. In 1789, Congressman James Madison sent Thomas Jefferson, then U.S. Minister to France, an early draft of what was to become the Bill of Rights. The Madison version said: "The people shall not be deprivedor abridged of their right to speak, to write, or to pub- lish their sentiments; and the freedom of the press, as one of the great bul- warks of liberty, shall be inviolable." 4 Jefferson approved of "the declaration of rights" in principle, but cautioned Madison to include certain limitations: "The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property or reputation of others or affecting the peace of the confederacy with other nations." 5 (Emphasis added.) xvi FOREWORD •-• positions is the viewing and listening public.

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