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1985

Don’t be Co-opted by the Folks who Brought us Vietnam, Grenada, and the Iranian Rescue Fiasco

Harvey L. Zuckman The Catholic University of America, Columbus School of Law

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Recommended Citation Harvey L. Zuckman, Don’t be Co-opted by the Folks who Brought us Vietnam, Grenada, and the Iranian Rescue Fiasco, COMM. LAW., Winter 1985, at 15.

This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. Don't Be Co-opted by the Folks Who Brought Us Vietnam, Grenada, and the Iranian Rescue Fiasco BY HARVEY L. ZUCKMAN After much negotiation with the position taken by James Madison to American Newspaper Publishers that taken by the Defense Depart- Association and the American ment, ANPA, and ASNE. Madison Society of Newspaper Editors, the wrote, "A popular government, Pentagon recently announced press without popular information, or the pool arrangements for the coverage means of acquiring it, is but a Pro- of future military operations and logue to a Farce or a Tragedy; or per- ground rules for release of informa- haps both. Knowledge will forever tion during such operations. As an- govern ignorance: and a people nounced by the Pentagon the basic who mean to be their own gover- principle is to be the maximum nors, must arm themselves with the release of information possible. power which knowledge gives." But let's refrain from dancing Only a press free to report all the in the streets-at least until the but politically it was lost' because news, including that of the govern- next Grenada-type operation com- of the impact of the news media on ment's military operations (though mences. The Pentagon's "ground the public. Make no mistake, the obviously not information that rules" contain more booby traps for press has few if any friends at the jeopardizes lives and immediate or the press and the public than the en- Pentagon because of the skeptical future military actions), can pro- tire Vietnam War. Call it what you approach taken by journalists in re- vide the people with the Madison- will, there is licensing and censor- porting military operations in Viet- ian power to stop unwise wars. ship in these "ground rules." Only nam. As UPI reported, the admiral I can only hope that individual accredited journalists may report in charge of the Grenada invasion journalists and news organizations on military operations and they candidly stated that journalists will ignore the Pentagon's heavy- may report only "releasable infor- were barred from that operation be- handed attempt to restrict the flow mation," with releasable informa- cause many of his fellow officers of information to the American tion defined and provided by-you harbored a strong dislike of the public and exhibit the same enter- guessed it-the Pentagon. Accredi- media. prise in getting out the news during tation is lost if the ground rules are If I were a cynical fellow, I might the next armed conflict that they violated. even conclude that journalists were displayed in Vietnam. The releasable information list totally barred from Grenada in or- does not include estimates of ene- der to make the new ground rules my strength (the issue at the center look good to elements of the Ameri- of the Westmoreland case) and the can press establishment. But then "information not releasable" list my more rational self takes control prohibits, for instance, reporting and I realize that the Pentagon plan- cancelled operations. In other ners are simply incapable of such words, the American people are not Machiavellian cunning. to be told of such things as Iranian The fact remains that major ele- hostage rescue fiascos. After all, ments of the press establishment look at the political fallout on the did acquiesce in these restrictive Carter administration from that and antidemocratic rules. And inept military operation. that's a pity. If the press had played And isn't that what the reporter- by these ground rules during the less Grenada operation, the Sidle Vietnam conflict, this nation might Harvey L. Zuchman is director of the Commission, and the new accredi- still be looking for the "light at the Institute for Communications Law tation and release of information end of the tunnel" and wasting its Studies of the Catholic University ground rules are all about? Lieu- precious young men and material School of Law. He is also editor of tenant General Daniel 0. Graham wealth in search of elusive military Communications Lawyer and wants may have stated it best when he victory. it made abundantly clear that his said from the witness stand in Since we live in a democratic views are not those of the Institute, the the Westmoreland-CBS trial, "My society, where hard, not compro- Catholic University ofAmerica, or the view has never changed that mili- mised, information is the necessary ABA Forum Committee on Communi- tarily we won [the Vietnam War] coin of the realm, I much prefer the cations Law. CUREN BIBIOGAPH

For material published from April 1984 to January 1985. Compiled by the research staff of the Catholic University School of Law Library in cooperation with the editors of the Media Law Reporter of the Bureau of NationalAffairs.

radio formats: legal and struc- BOOKS, MONOGRAPHS, tural issues. By T.L. Glasser. 28 AND REPORTS SELECTED ARTICLES J. Broadcast. 127-142 (1984). Competition and diversity among Broadcast Deregulation. Congres- Access to pre-trial documents under radio formats: a 1984 response. sional Digest, v. 63, April 1984. the First Amendment. Note, 84 By E.G. Krasnow and W.E. Ken- pp. 98-128. Colum. L. Rev. 1813 (November nard. 28 J. Broadcast. 143-145 1984). (1984). Broadcast Fairness, By F. Rowan. New York: Longman, 1984. (Long- Activism v. restraint: The D.C. Cir- Competition and diversity among man series in public communica- cuit, the FCC and the Supreme radio formats: a rejoinder. By tion.) $29.95. L.C. 83-19998. Court. By J.H. Pennybacker. 28 T.L. Glasser. 28J. Broadcast. 147 J. Broadcast. 149 (1984). (1984). Documents of American Broadcast- After Metromedia: sign controls and The constitutionality of expanding ing. Englewood Cliffs, N.J.: Pren- the First Amendment. Note, 28 prepublication review of govern- tice-Hall, 1984. 501 p. St. Louis U.L.J. 171 (1984). ment employees' speech. By Libel and Privacy. By B. Sanford. Antitrust law-signal-penetration or M.L. Charlson. 72 Calif. L. Rev. New York: Harcourt Brace Jovan- station-location: the scope of the 962 (1984). ovich, 1985. 900 p. National Football League's televi- Copyright, free speech, and the sion blackout antitrust exemption. visual arts. 93 Yale L.J. 1565. Media Abuses: Rights and Remedies: Case note. WTWV v. National (1984). A Guide to Legal Remedies. Wash- FootballLeague, 678 F.2d 142 (11 th ington, D.C.: Media Institute, Copyrighting personal letters, dia- Cir. 1982). By R.L. Waldman. 6 W. ries, and memorabilia: a review 1983. 103 p. $25.00. L.C. 83- New Eng. L. Rev. 877-895 (1984). 62176. and a suggestion. By R.C. Hau- A "better" market place approach hart. 13 U. Balt. L. Rev. 215 (1984). to broadcast regulation. Note, Media Law. By Galvin. Occidental, 36 Courts, statutes and administrative Fed. Com. Cal.: Nolo Press, 1984. 256 p. L.. 27-68 (1984). agency jurisdiction: a considera- $14.95 pa. franchising with- tion of limits on judicial creativ- out antitrust immunity: the after- ity. By J. Mallamud. 35 S.C.L. Media Law: The Rights ofJournalists math of Boulder. By P.S. Ryerson. Rev. 191-293 11984). and Broadcasters. By G. Robert- 16 Urb. Law. 387-422 (1984). DBS, the FCC, and the prospects son and A. Nicol. London: Oyez Candidates and the new technolo- for diversity and consumer sover- Longman Publishing, Ltd., 1984. gies: should political broadcast- eignty in broadcasting. Note, 4 448 p. ca $53.25. ing rules apply? By B.D. Swill- Computer L.J. 551-72 (1984). inger, 49 Mo. L. Rev. 85-101 DBS under FCC and international Misregulating Television: Network (1984). Dominance and the FCC.Chicago: regulation. Note, 37 Vand. L. Rev. Carter-Mondale: affirming the af- 67-144(1984). University of Chicago Press, firmative right of access to broad- 1984. ca $19.00 L.C. 84-8738. Descendibility of the right of publi- cast media. By M. Johnson. 6 city, 1983 S. Ill. U. L.J. 547. Com. & L. 47-64 (1984). Electrifying the First Amendment. Press Law in Modern Democracies: Cellular communications service: A Comparative Study. By P. La By M.S. Nadel. 5 Cardozo L. Rev. Lal-lav. New York: wireline delivery or delay? Note, 531-46 (1984). Longman, 72 Geo. L.J. 1183-210 (1984). 1984. (Annenberg/Longman com- Enjoining obscenity as a public munication books.) $39.95. L.C. Children's television: deregulating nuisance and the prior restraint 83-19595. the underregulated. Pt. I. 8J.Juv. doctrine, 84 Colum. L. Rev. 1616 L. 1-11 11984). (1984). Satellite and Cable: International Protection. By S. Mosteshar and S. Choice of law in right of publicity. General public figures since Gertz Bates. London: Oyez Longman By R.C. Cray. 31 U.C.L.A. L. Rev. v. Welch, 58 St. John's L. Rev. 355 Publishing, Ltd., 1984. 14 p. ca 64011984). (1984). $95.00 Competition and diversity among Indiana opens public records: but (b)(6) may be the exemption that Mother knows best: reconciling time' for change?" By R.M.Osher; swallows the rule. 17 Ind. L. Rev. parental consent with minors' and "Stay tuned for new 555 (1984). rights in Shields v. Gross. By C. Jef- technology: the paradoxes of the International communications sym- ferson. 6 Comm/Ent 695 (1984). proposed financial interest and posium. Introductory remarks. National security information dis- syndication rules." By E.B. Glov- By M.S. Fowler; Institutional per- closure under the FOIA: the need insky. 6 Comm/Ent No. 3. (1984). spectives on the allocation of for effective judicial enforce- Regulation of indecent television space orbital resources: the ITU, ment. 25B. C. L. Rev. 611 (1984). programming: HBO v. Wilkinson common user satellite systems The nonmedia figure and strict lia- 1531 F. Supp. 987]. 9J.Contemp. and beyond. By S.A. Levy; Liabil- bility in California. By T.J. Doyle. L. 207-16 (1983). ity limitations in international 18 U.S. F.L. Rev. 253 (1984). data traffic: the consequences Restricting the broadcast of elec- of deregulation. By T.J. Meyers; Pay television piracy: does section tion-day projections: a justifiable Note, The geostationary orbit: le- 605 of the Federal Communica- protection of the right to vote. By gal, technical, and political issues tions Act of 1934 prohibit signal S.M. Leonardo. 9 U. Dayton L. in its use in world telecommuni- piracy-and should it? Movie Sys- Rev. 297-313 (1984). cations; Note, International coop- tems v.Heller, 710 F.2d 492. Note, Satellite/dish antenna technology: eration and national sovereign- 10 Win. Mitchell L. Rev. 531-57 a copyright owner's dilemma. ty-unchanged role of national (1984). Note, 59 Ind. L.J. 417-42 (1984). sovereignty in the provision of in- The Press and the public interest: Sports broadcasting and the law. ternational telecommunications an essay on the relationship be- By R.A. Garrett and P.R. Hoch- services. Case W. Res. J. Int'l L. tween social behavior and the berg. 59 Ind. L.J. 155-93 (1984). 167-285 (1984). language of First Amendment A strange animal: the FCC and Issues in the regulation of cable TV. theory. By L.C. Bollinger. 82 broadcast EEO. 6 Comm. & L. By M. Waterson. 4 Int'l Rev. L. & Mich. L. Rev. 1447 (1984). 25-46 (1984). Econ. 67-82 (1984). Private reception of satellite trans- Judging public interest in libel: the missions by earth stations. Note, Time, place, or manner restrictions Gertz decision's contribution. By 48 Alb. L. Rev. 426-58 (1984). on commercial speech, 52 Geo. S. Helle. 61Journ. Q. 117 (1984). The proposed repeal of the financial Wash. L. Rev. 127 (1984). Legal issues in electronic publish- interest and syndication rules: VCR home recordings and Title 17: ing (symposium), including ar- network domination or public in- does Congress have the answer to ticles by R.M. Neustadt on tech- terest representation? (sympo- Sony Corporationv. UniversalCity nology; F. Abrams and D. Ringel sium). "The syndication and fi- Studios, Inc.? By M.C. Diedring. on content regulation; H. Geller nancial interest rules: is it a 'prime 35 Syracuse L. Rev. 793 (1984). on communication regulation other than content; J. Baumgar- ten on copyright; J.P. Thornton, G.G. Gerlach, and R.L. Gibson on libel; R.I. Plesser on privacy; P.C. DeVore, M.A. Hutcheson, and S.C. Shapiro on labor law; J.E. Thackeray and J.M. Gherlein on antitrust; T. Maguire on taxes; and R.D. Sack on commercial speech. 36 Fed. Comm. L.J. 2 (1984). Letting the right hand know what the left hand's doing: the clash of the FTC's false advertising and antitrust policies. By R.F. Schech- ter. 64 B. U. L. Rev. 265 (1984). Liability of television company and its broadcasters to allegedly libelled attorney. By J. A. Bosco. 27 Trial Law. Guide 573-76 (1984). he ions Law.

See page 20 for registrationform. -Daniel Brenner, Administrative The current debate. Oklahoma and Assistant to FCC Chairman decisions. Mark Fowler -John B. Summers, Executive Vice -Howard Monderer, Executive Vice Friday, March 29, 1985 President and General Manager, NAB President and General Manager, -Donald B. Shea, President, U.S. NBC Hyatt Regency Washington Brewers Association -Craig R. Smith, President, Freedom -Manya Ungar, Vice-President for Washington, D.C. of Expression Foundation -Andrew Schwartzman, Media Legislative Activity, National PTA Current Issues in Access Project -George Hacker, SMART Content Regulation 11:00-11:15 a.m. -John F. Sturm, Director, Government Coffee Break Affairs, CBS 11:15-12:30 p.m. 3:30-.3:45 p.m. 9:00-9:15 a.m. Obscenity and the Electronic Media Coffee Break Welcome and Opening Remarks Dial-a-Porn; Carlin decision; Cable 3:45-5:15 p.m. 9:15-9:45 a.m. porn legislation. Exit Polling -Brenda Lee Fox, General Counsel, Keynote Address The impact on the electoral process. by Commissioner Dennis Patrick NCTA Proposals to prohibit predictions prior 9:45-11:00 a.m. -Jack Smith, General Counsel, FCC -Rep. Thomas J. Bliley, Jr. JR.-Va.] to polls closing. The Fairness Doctrine -Prof. William C. Adams, Department The basics of the doctrine; League -Jonathan L. Rosner, New York, New of Public Relations, George Wash- case, footnote 12; Syracuse decision; York repeal proceeding. 12:30-2:00 p.m. ington University -Thomas Rogers, Counsel, House Lunch -Curtis E. Gans, Director, Committee Telecommunications Speaker to be Announced for the Study of the American Electorate Subcommittee 2:00-3:30 p.m. Alcoholic Beverage Advertising

See page 20 for registrationform and 9:15-10:30 a.m. 1:45-3:00 p.m. hotel reservations form. Complying with FCC Regulation Buying and Selling a Station Robert A. Beizer, Moderator, R. Clark Wadlow, Moderator, Schnader, Harrison, Segal & Lewis, Schnader, Harrison, Segal & Lewis, Saturday, April 13, 1985 Washington, D.C. Washington, D.C. John C. Quale, Wiley & Rein, Victor E. Ferrall,Jr., Crowell Dunes Hotel Washington, D.C. & Moring, Washington, D.C. Las Vegas, Nevada Charles]. Sennett, Tribune Company, Peter D. O'Connell, Pierson, Ball & Chicago, Illinois Dowd, Washington, D.C. Representing Your 10:45 a.m.- 12:00 noon 3:15-4:45 p.m. Local Broadcaster: Content Regulation Technical and Regulatory A PracticalWorkshop Erwin G. Krasnow, Moderator, Verner, Developments and Trends Liipfert, Bernhard & McPherson, Henry L. Baumann, Moderator, Senior for Lawyers Washington, D.C. Vice-President and General Counsel, Jointly sponsored with the Richard R. Zaragoza, Fisher, Wayland, National Association of Broadcasters, Washington, D.C. National Association of Cooper & Leader, Washington, D.C. Michael D. Berg, Senior Associate James C. McKinney, Chief, Mass Media Broadcasters General Counsel, National Association Bureau, Federal Communications of Broadcasters, Washington, D.C. Commission, Washington, D.C. 8:30-9:00 a.m. 12:00-1:30 p.m. John Abel, Senior Vice-President for Registration Luncheon Research and Planning, National 9:00-9:15 a.m. All panelists will be available for in- Association of Broadcasters, Introduction formal discussion and questions over Washington, D.C. Richard E. Wiley, Wiley & Rein, lunch. 5:00-6:00 p.m. Washington, D.C. Cocktails, cash bar. A Cornucopia of Cable Law BY MICHAEL S. SCHOOLER Cable Television Law: knowledge of cable law. For the While such developments would A Video Communications lawyer who does only occasional rapidly render a hardbound treatise cable work, the treatise is even obsolete, the authors have minim- Practice Guide more useful because it provides ized the problem by going the loose- By C. Ferris, F. Lloyd, material that he probably would leaf route, with two updates-in- and T. Casey. not otherwise have available. cluding a review of the new act- New York: Matthew Bender. The treatise is, of course, no sub- already in print. Therefore, if used stitute either for the expertise of the correctly, the treatise can be invalu- 1983. 3 vol. $210. established cable practitioner or for able to cable operators and general independent research on specific practitioners for years to come. It There are two kinds of treatises that issues. In covering the waterfront will provide them with a knowl- are, in different ways, useful con- of issues involving not only cable edge of the basics of cable law that tributions to the study and practice but also other new video competi- will enable them to ask the right of an area of law. One is the treatise tors, it provides useful and sugges- questions and better understand that anticipates an emerging body tive-but not exhaustive-analysis. the answers when they consult of law, charts the legal issues that Moreover, in such a rapidly evolv- their cable lawyers on specific will define this new area, and then ing area of the law, unanticipated problems. resolves these issues in a manner developments will inevitably make Let's not lose sight of the signifi- that will, if adopted, purportedly some of the treatise's pronounce- cance of these volumes. There has bring rationality and wisdom to the ments inaccurate. For example, never before been a useful treatise field. The new treatise on cable tele- shortly after publication of the trea- in this field. Merely by organizing vision law by Ferris, Lloyd, and tise, the Supreme Court handed the material and making it available Casey is of the other type. It is a down its important decision in in a single package, the authors treatise that attempts to summarize Capital Cities Cable, Inc. v. Crisp, have provided an important service legal developments in an estab- 104 S. Ct. 2694 (1984), confirming to practitioners at all levels of lished area in which the legal ques- that the Federal Communications expertise. Cable Law makes some of tions have thus far been asked and Commission had much broader the shared wisdom of the cable cog- answered without the assistance of jurisdiction to regulate cable-and noscenti available to those who are any unifying treatise or scholarly to preempt state and local cable not specialists, and it does for the theory. regulation-than one would have cable experts the filing and organiz- The treatise contains no novel thought from reading the treatise's ing job that they may have and legal approaches to cable television section on "FCC Jurisdiction over should have-but issues. And, because it is probably have more Cable Television." Then, in Oc- not-already done. descriptive than prescriptive, law- tober 1984, Congress enacted the yers will not often cite it to support a Cable Communications Policy Act legal argument. But what is new of 1984, which established a new, about these three volumes is that comprehensive framework for fed- Michael S. Schooler is associate gen- they set forth, in one place, the legal eral and state regulation of cable eral counsel of the National Cable history and the issues that currently television. Television Association. define cable law. Established cable law practi- tioners will already be aware of the CHAIRMAN the AT&T divestiture and its after- general legal principles and issues math, and perhaps the expanding Continuedfrom page described in the treatise, and they 2 libel law area. We seek your input should have already gathered, in the New Video Marketplace" con- and advice concerning other ap- one place or another, most of the ference, which will be presented propriate topics and locations. I relevant cases and authorities that for the third time in New York on hope you will write me, Norman annotate the treatise, as well as the February 22. A seminar on "Con- Nelson or other board members statutes, regulations, and forms tent Regulation" of broadcasting with any suggestions on how we that comprise its appendix. Never- also has been planned for March 29 can make this committee's activity theless, the new treatise will almost in Washington. In addition, a more respons;ive to the needs and certainly be a time-saver, to the ex- breakfast open to all committee interests of our widespread mem- tent that it puts the useful material members is held each year at the bership. ,. L r. W" e at the lawyer's fingertips-and at ABA Annual Meeting. the fingertips of others in his office Future conferences will focus on who may not share his accumulated the First Amendment and business, Richard E.Wie Registration Form Registration Form Current Issues In Representing Your Content Regulation Local Broadcaster March 29, 1985 April 13, 1985 Hotel Reservations Form Please mail directly to: Please mall directly to: Please mail to: Forum Committee on Communications Forum Committee on Communications Law Hilda Jannesson Law American Bar Association National Association of Broadcasters American Bar Association 750 North Lake Shore Drive 1771 N Street, N.W. 750 North Lake Shore Drive Chicago, Illinois 60611 Washington, D.C. 20036 Chicago, Illinois 60611 Please register me for Representing Your Reservation for the Dunes Hotel, Las Vegas, Please register me for the program, Current Local Broadcaster: A Practical Workshop for Nevada, for the ABAINAB workshop, Issues in Content Regulation, to be held in Lawyers, to be held April 13, 1985, in Las Representing Your Local Broadcaster. Washington, D.C., on March 29, 1985. Vegas, Nevada. Name Name Name Firm Firm Firm Address Address Address city City city State Zip State Zip State Zip REGISTRATION PFs: Telephone Telephone [ $120 Forum Committee on Arrival Day REGISTRATION FEE: Communications Law Member - $125 Forum Committee on [] $120 NAB Associate Member Date Time Communications Law member ol $120 Sponsored by NAB Member El $150 Nonmember, when two or more Name of Member or Sponsor Departure Date nonmembers from the same firm register Please one: ] $175 Nonmember of the Forum 0 $150 Individual not qualifying for Single $65 Double $65 Committee on Communications Law above categories $35 Lawstudent at [] 0 $30 Law student at The deadli for hotel room reservtions is name of law school March 8, 1985. Please make your check payable to the American Bar Association. Please make your check payable to the American Bar Association and enclose it with completed form.

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