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Reporting the Official Truth: the Revival of the FCC's News Distortion Policy Lili Levi University of Miami School of Law, [email protected]

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Reporting the Official Truth: the Revival of the FCC's News Distortion Policy Lili Levi University of Miami School of Law, Llevi@Law.Miami.Edu University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 2000 Reporting the Official Truth: the Revival of the FCC's News Distortion Policy Lili Levi University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Communications Law Commons, and the First Amendment Commons Recommended Citation Lili Levi, Reporting the Official Truth: the Revival of the FCC's News Distortion Policy, 78 Wash. U. L. Q. 1005 (2000). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. 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 Priorto Serafyn v. FCC........................................ 1015 1. The 1940s .............................................................................1015 2. Development of the Policy in the 1960s ............................. 1016 B. The Recent JudicialTransformation of News Distortion: Serafyn at the FCC and the D. C. Circuit................................... 1031 1. ProceduralHistory .............................................................. 1031 2. Situating the Issue: A Transcriptof The Ugly Face of Freedom .................................................................. 1033 3. The FCC'sDecision ............................................................ 1039 4. The D.C. Circuit's Expansion of the News Distortion P olicy .................................................................................... 1042 III. CRITIQUE OF THE "NEW" NEWS DISTORTION POLICY ....................... 1043 A. The EnhancedDangers of the D.C. Circuit'sNew Model ofNews 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 1006 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 78:1005 2. A New Requirement: UnwarrantedInferences from Evidence of "Obvious or Egregious" Factual Inaccuracies......................................................................... 1054 a. The Translationof "Zhyd": An Instance ofthe Translator'sDilemma ................................................. 1055 3. Second-GuessingEditorial and ProductionChoices ........ 1064 a. Decisions on the Selection ofExperts ........................ 1064 b. Investigative Obligationsfor "Inflammatory" Statem ents .................................................................... 1067 4. JudicialRevision of the Extrinsic Evidence Standardas App lied .................................................................................1068 a. PrivilegingCertain Types ofReaction Evidence: After-the-Fact ComplaintLetters ............................... 1069 b. Improperly Inferring GeneralPatterns of Distortion:Public Statements on Newsgathering and the Presence of Written Policieson Distortion..1073 B. Lessons from Defamation Law .................................................... 1078 1. The Meaning of Meaning and Truth .................................. 1079 2. Comparison with Reckless Disregard................................ 1080 3. The AdministrativeEnd-Run Around Tort Limitations: The Conflict Between News Distortion and Group Libel D octrines.................................................................... 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 ofRegulatingNews D istortion...................................................................................... 1098 1. The FCC's Regulatory Values-Truth and Press Integrity................................................................................ 1099 2. The Modern Reality of the Press: PublicAmbivalence and StructuralPressures on Press Objectivity .................. 1101 3. PossibleInterventionist Rationales .................................... 1105 B. Policy Arguments in Favorof FCCRetreat ............................... 1109 1. The DemocraticHarms of "Official Truth" ................1109 2. News DistortionRegulation as More Harmful to Speech Norms than the FairnessDoctrine ......................... 1111 3. FactorsSkewing GovernmentalAccounts of Truth: ChillingInterest Group Strategies...................................... 1114 2000] REVIVAL OF THE FCC'S NEWS DISTORTION POLICY 1007 4. The Illusion of Neutrality andAccuracy ............................1116 C. The Democratic Value ofDifferent Press Traditions................. 1121 V I. CONCLUSION ........................................................................................1129 APPENDIX: APPLYING THE "OBVIOUS" NEWS DISTORTION STANDARD ............................................................................................1133 A. Close Analysis of Claimed FactualInaccuracies in the 60 M inutes 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. HistoricalFootage of UkrainianBrutality ................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.' 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.govl 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). 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, the FCC's most well-recognized discourse-enhancing content regulation was the fairness doctrine, which required every broadcast licensee to provide balanced coverage of controversial issues of public importance. 2 The Commission jettisoned the doctrine in the 1980s, opining that although fairness and balance in reporting were
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