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1994 Standing on Unstable Grounds: A Reexamination of the WLBT-TV Case Steven Classen George Fox University, [email protected]

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Standing on Unstable Grounds: A 1 Reexamination of the WLBT-TV Case

STEVEN DOUGLAS CLASSEN

During the 1960s, disparate discourses of consumerism intersected with concerns regarding race and civil rights in the realm of broadcast law and regulation. This reexamination of the social and legal struggles surrounding WLBT-TV in Jackson, (1964-69), shows how conflicting consumerisms were mediated by legal institutions in an attempt to address social tensions, and reveals how the dominant discourses of liberal consumerism often displaced issues of race.

In 1962, the "Jackson Nonviolent Also in the spring of 1962, hun• Movement" began to change busi• dreds of miles to the north, Presi• ness as usual in Mississippi. The up• dent john Kennedy returned to a start organization, comprised largely popular political campaign theme, of local teens, targeted prominent evoking the concerns of a general• Jackson businesses, demanding that ized "consumer" in a congressional basic employment and consumer address. Explicitly, the president al• rights be extended to African Ameri• lied himself with this abstract Ameri• cans.2 They insisted that the segrega• can. Implicitly, his speech defined tion, degradation, and physical abuse the consumer as individuated, grimly familiar to black consumers middle-class, moral, and rational. in the white marketplace be con• Throughout the 1960s such implicit fronted and addressed. In the spring, political definitions and more ex• when a pregnant African-American plicit affirmations of the "American mother was verbally and physically consumer" were common, since pro• assaulted by a white grocer, the consumer rhetoric was regarded as Movement called a church meeting, relatively inexpensive and attractive distributed leaflets, and led a success• to middle-class voters.3 ful against the store. Months Although the superficially singu• later, this strategy was reemployed lar discourse of consumerism was with a massive boycott of downtown fully engaged in Washington a n d businesses and the demand that "Ne• Jackson, its practices and meanings gro consumers ... [be] treated as were multiple, mobilized alongside they ought to be-as first class different contexts, goals, and con• citizens" (Salter, 1987, pp. 36, 56). cerns. And in 1964, with a legal chal• lenge to the racist practices and li• Steven Douglas Classen is a doctoral candi• cense of a powerful Mississippi date in the Department of Communication institution, Jackson’s WLBT-TV, Arts, University of Wisconsin, Madison. the disparate consumer concerns articu-

lated in Washington and Jackson Further, it cautions students of law would find themselves in uneasy jux• and regulation "not to assume the taposition. Contrary assumptions re• coherence and consistency of legal garding the free marketplace were discourse but to search out the reso• brought into focus as the Jackson nances of the social, economic, and Movement argued that consumer• ism political struggles that reside behind entailed matters more funda• mental the smooth surface of legal reason• than product safety, truthful ing and judicial utterance'' (Hum. advertising or product choice. This 1985, p. 16). paper examines how the multiple dis• courses of consumerism intersected with the legal struggle over WLBT• THE CHALLENGE TO TV, and with larger social, and spe• WLBT cifically racial, concerns. It is widely acknowledged that the Scrutiny of this specific moment WLBT-TV challenge (1964-1969) suggests that troubling social prob• was a defining moment for the broad• lems are often elided within the for• cast reform movement of the sixties mal language, analysis, and opera• and seventies (see discussions of tions of law. Of central concern here Krasnow, Longley and Terry, 1982; is how legal decisions and texts deny Rowland, 1982; Haight and Weinstein, their specifically located social con• 1981; Cole and Oettinger, 1978). In struction and rely on the appropria• the early seventies, citizen and advo• tion of liberal discourses to deflect cacy groups employed the "WLBT direct encounters with social struggle. model"-filing petitions to deny li• With faith in the adequacy of law's cense renewals-in fights to change formal justifications, traditional local broadcast practices. Because the analyses routinely ignore the social extended conflict over the WLBT tensions and assumptions which un• license established strategic and legal derlie law and regulation. Frequently precedents pertaining to broadcast the focus is placed on law's formal reform, scholars have frequently de• continuity, its formation in the rari• scribed the WLBT case and its impor• fied climate of judicial and govern• tance.5 Left largely unexamined has mental institutions, or relative tran• been the relationship of specific so• scendence over everyday life and cial and cultural forces-such as the things political. Instead, this essay disparate discourses of consumer• foregrounds the disjunctures and so• ism-to the operations of broadcast cial contingency of law and legal regulation. At the center of this legal processes by reexamining the legal and cultural contest was the concept challenge to the license of WLBT- of the consumer, consumer rights, TV, describing how dominant and several related questions: Who discourses of consumerism interacted were the consumers of television, and with broadcast regulation and of this particular broadcast outlet? displaced issues of race.4 What rights, if any, did these consum• Situating legal struggle in this way ers have? From 1964 to 1969, in the reveals the problematic consequences midst of a decade that saw the rise of Ralph Nader, these questions and of translating marginalized or minor• ity concerns into the terms of the others were argued in various dominant liberal legal establishment. forums including the Federal Commu- 75

CLASSEN nications Commission (FCC) and the sion hostility toward the public inter• District of Columbia Federal Court venors and revoked the station's li• of Appeals.6 cense (425 F.2d 543). In April of 1964, a coalition of Out of this complex legal history, reformers including Aaron Henry, the present focus is on the early years the Reverend R.L.T. Smith, and the of this struggle, and, in particular, New York-based United Church of on the legal notion of standing (locus Christ (UCC) filed a petition to deny standi) which was crucial to the semi• the license renewal of WLBT televi• nal 1966 Court of Appeals decision. sion in Jackson, Mississippi. These Briefly put, the 1966 court ruling petitioners, in a cooperative effort gave local citizens (audience mem• with other local citizens, began in bers) "standing" --entitlement to inter• 1963 to gather evidence systemati• vene (or the right of direct representa• cally demonstrating that the station tion) in administrative agency (FCC) was not meeting local public interest proceedings. Although "standing" is standards. Specifically, their formal a legal concept most often debated petition alleged: (a) a failure to serve on the formal grounds of process and the local black population; (b) pro• precedents, by employing a social gramming that discriminated against historical perspective we can see how blacks; (c) unfairness in the presenta• such formal concepts operate tion of issues, especially about race in, and are situated at, specific histori• relations; (d) failure to provide the cal conjunctures. community with adequate religious and other public affairs program• Since the 1966 Court of Appeals ming; and (e) an excessive amount of decision granted legal standing to airtime devoted to commercial an• broadcast consumers, and the 1969 nouncements (Parker, 1972, p. 2). 7 opinion revoked WLBT's license, A lengthy legal battle ensued. Act• textbook treatments of this case his• ing on the 1964 petition, the FCC tory often implicitly promote the no• asked the station for programming tion of continuing progress in broad• improvement yet granted a short• term cast regulation and suggest the one year license renewal and dismissed progressive movement in this in• the petitioners as lacking formal stance was largely the result of indi• "standing" before the administrative vidual agents and successful legal body (38 FCC 1143). The petitioners strategy. Rather than attributing a appealed this ruling, resulting in the legal decision to judicial idiosyncrasy 1966 District of Columbia Court of or inherently superior arguments and Appeals decision which will be formal technique, the task here is to discussed below (359 F.2d 994). The ask how popular and legal dis• 1966 judgment remanded consideration courses concerning race and consum• of the case to the FCC, which held erism converged and shaped social formal hearings regarding the original and legal consciousness in a particu• lar instance. complaints and again renewed the station's license ( 14 FCC 2d 431). Another appeal to the courts was "Don't Buy Segregation" made. In 1969 the petitioners claimed victory as the same D.C. Court of In 1962, even as President Appeals chastised commis- Kennedy was announcing what he called the consumer's "bill of rights,"

including a "consumer's right to be highlighted “a brief statement of heard," in Missis• grievances" discussing the problem sippi were testing their voices and of employment , and power as consumers in a state notori• continued: ous for racial violence and oppres• Negro consumers are forced to use sion. In the small delta community of separate restrooms, separate drinking Clarksdale, activists engaged in a per• fountains, and very frequently are sistent boycott of merchants with a forced to use separate seating facilities history of racial discrimination. The in the stores. Often, they are forced to grassroots effort, led by local resi• stand. Negro customers are the last to dent and state NAACP president be waited on. In any dispute between Aaron Henry, was maintained tor a clerk and a customer, the customer several months and had a significant is always wrong -- if he or she is a economic impact on downtown busi• Negro. Many of the white nesses (Salter, 1987, pp. 29-36). businessmen are members and In the winter of 1962, Jackson be• supporters of the viciously anti- came the site of a massive grassroots Negro White Citizens Council- effort aimed at pressuring stores and whose national head• quarters is in services dependent upon black pa• Jackson .... Brutality, levied against. tronage. The Jackson Nonviolent Negro people, has frequently occurred Movement lasted more than six in the stores of white businessmen months and had initial leadership (North Jackson Youth Council, Pa• from the North Jackson Youth Coun• pers of John R. Salter, Jr., Box l, cil of the NAACP, a group of young Folder 15). students advised by Tougaloo Col• Attempting to draw further atten• lege professor John Salter. The tion to these practices downtown, movement received additional guid• picketing demonstrations joined the ance and support from other promi• selective buying effort in December, nent black Missisippians, including just in time to affect the holiday shop• Aaron Henry, Rev. R.L.T. Smith, ping season. The Youth Council or• Rev. G.R. Haughton, and NAACP ganized a systematic phone calling field secretary . campaign and pamphlet distribution Planning for the boycott campaign strategies to inform the black commu• began in the fall of 1962, and in• nity of its actions and goals. Salter cluded a study of job and consumer (1987, p. 101) recalls that almost 60,000 leaflets were distributed in conditions in Jackson. Organizer the first six months of the campaign, John Salter had been impressed by and that "boycott workers had spo• recent campaigns out• ken at length in almost every Negro side of the state and was eager to church in Jackson-and most of these mobilize the local Black community churches had been visited manv times." (Salter, 1987, pp. 39, 51-52). On No• Since police harassed or arrested vember 30, 1962, the official bulletin those engaged in the distribution of of the North Jackson Youth Council boycott information, student workers (NAACP), the North Jackson Action, used unusual, sometime secretive declared "The boycott is now official techniques, carrying materials in paper . . . picket lines and mass meetings bags, umbrellas, and under their coats, are definitely set." The front page moving quickly through different parts of Jackson (Salter, 1987, p. 71). 77

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These extraordinary communica• 1971). In fact, on at least one occa• tions efforts were necessary because sion, Beard was vigorously ap• the mainstream print and electronic plauded by Citizen's Council mem• media of Jackson provided visually no bers when he announced the station's opportunities for black voices to be active censorship of pro-integration heard or pro-movement arguments to programming. WLBT also had a be made. Two newspapers dominated "Freedom Bookstore'' on its pre• the daily print media, namely, the mises, filled with Citizen's Council Clarion-Ledger and the Jackson Daily and white supremacist literature. News, and were both owned by the Economically, the station had a dose powerful Hederman family, which had a relationship with Citizen's Council significant invest• ment in downtown businessmen and downtown stores in business as well as the segregationist terms of long-term advertising ac• status quo. Front page editorials and counts. In short, the station had very columns in these papers frequently powerful economic and political al• leveled withering attacks on the federal lies, and only the marshalling of con• government and civil rights activities. In siderable political and legal resources response to the boycott, the papers would bring about a change in its offered loud condemnations of it, and racist practices. ran ads urging readers to shop down• It was the station's allies that were town. under direct attack during the The Hederman family also con• Jackson movement. In order to trolled a substantial portion of the counter perceptions that it was with• broadcast market, owning WJTV one out concrete goals, the movement of two network-affiliated television issued a concise list of demands in stations in Jackson. WJTV's January of 1963: programming practices, while not the focus of history textbooks, were quite (I) Hiring of personnel on the basis similar to those at WLBT. In fact, of personal merit without regard to the petitioners of WLBT originally race, color or creed; and promotion challenged both stations' licenses, of such personnel on the basis of both articulating several identical merit and seniority without regard to complaints, including racial race, color or creed; (2) an end to discrimination. In the case of segregated drinking fountains, an end WJTV, a few signs of programming to segregated re• strooms, and an end adaptability helped shift the focus of to segregated seat• ing; (3) service to legal efforts to the more recalcitrant all consumers on a first come, first WLBT. served basis; (4) use of cour• tesy WLBTs connection to the white titles-such as "Miss," "Mrs.," and business establishment and most "Mr."-with regard to all people (Pa- powerful state politicians was quite pers of John R. Salter, Jr., Box I, dear. Fred Beard, the station's gen• Folder 14). eral manager, was a prominent mem• As Liz Cohen (1992, p. 9) has ob• ber of the anti-integration White served, the Jackson movement, while Citizen's Council, as were many acknowledging the need for equality downtown businessmen and prominent in the sphere of production (hiring Mississippi lawmakers (McMillen, and promotion) focused on the problems of local black consumption. In her broader analysis of civil rights ill

leading information in media such as activism, Cohen identifies the exis• broadcast advertising; (3) "the right. tence of a postwar politics of con• to choose," concerned with "access sumption "oriented around black's to a variety of products and services rights as consumers, not just at competitive prices"; and (4) "the producers" (p. 8). She argues that right to be heard,'' an assurance "'that "although access to jobs remained on consumer interests will receive full the agenda of civil rights activists in and sympathetic consideration in the the early 1960s, they now saw formulation of government policy, consumption and production rights as and fair and expeditious treatment ...intenwined" (p. 8). in its administrative tribunals" (such While articulating "civil rights as the FTC and FCC) (Lampman, J problems" during the selective buy• 988, p. 22). ing campaign, Jackson movement Such pronouncements could be leaders such as Rev. R.L.T. Smith understood as both expansive and put the "denial of human dignity" at restrictive. While the president's the top of their public complaints, speech provided a symbolic alliance and called for local recognition of with "the American consumer," and ''freedom and human dignity" at symbolically expanded "consumer mass meetings held in Jackson rights,'' it also set implicit limitations churches (Papers of Rev. R.L.T. on the government's interests in these Smith, Box 3, Folder 28). Clearly, matters. As one of his key speech this call was associated with the con• writers has put it, Kennedy's an• crete experiences of African Ameri• nouncement of these "rights" served cans shopping in downtown Jackson, to "define and limit the field of con• denied access to bathrooms and wa• sumer protection and to identify le• ter fountains, and often ignored by gitimate policy choices vis-a-vis con• white employees. In the months af• sumer markets" (Lampman, 1988. ter the movement disbanded, the pe• p. 31). Aside from a cautious and titioners challenging WLBT echoed vague endorsement of consumer rep• this theme, complaining that the sta• resentation, the executive statement tion undermined black dignity by fail• established as paramount safer goods ing, for example, to use courtesy titles and "improving the level of con• in addressing black personalities and sumer satisfaction from a given level events. of expenditure" (Lampman, 1988, p. The Jackson movement's concerns 29). and demands were quite different Focusing on consumer satisfaction from those articulated by John derived from favorable economic ex• Kennedy just months earlier on be• change, Kennedy implicitly defined half of what he called the "American the "American consumer'' as indi• consumer." The president identified vidualized and autonomous, enjoy• four primary consumer concerns and ing free access to the marketplace corresponding rights: (1) the "right independent of the social divisions to safety" which dealt with protec• and constraints experienced every• tion from hazardous goods; (2) the day by thousands of Jackson shop• "'right to be informed," which was pers. Missing was the movement's concerned with protection against recognition of a basic need to affirm fraudulent, deceitful, or grossly mis- 79

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the human dignity and worth of con• the realm of the legal and bureau• sumers. The Jackson movement had cratic, with all of its attendant dan• issued its own version of a bill of gers. Because local black Mississippi- rights for consumers, arguing that ans lacked the enormous economic an entire class of citizens had been and legal resources necessary for a abused within, and often excluded protracted licensing battle and ad• from, the free marketplace. At the ministrative challenge, the task fell same time, in Washington, political largely to media activists and attor• discourse symbolically erased social neys associated with the United differences in consumer experiences Church of Christ (UCC). and worked to reestablish the vision of a fundamentally fair marketplace Shifting Standards of Standing that balanced the interests of indi• Before the challenge from the UCC vidual consumers and producers. and its co-petitioners, both the FCC Certainly these segregated con• and federal courts handling broad• sumers had been influenced by the casting concerns had granted "stand• popular consumerist discourse of the ing to intervene" only to legislators period, as is evident both in the and those parties "operating in the Jackson movement's newsletters and public interest," demonstrating suffi• more widely throughout the South cient economic injury or electrical (Cohen, 1992). However, the mean• interference. Those parties success• ings of consumerism were appropri• fully claiming economic injury and ated differently and specifically in electrical interference were invari• response to crises such as those expe• ably commercial and industrial enti• rienced in Jackson. It is clear that the ties. Although the courts insisted that direct action campaign undertaken standing was considered in the light in Mississippi's capital contained a of larger public rather than private considerable current of dissatisfac• interest concerns, members of the tion with the federal government, listening and viewing audience, "the law, and formal announcements from public," were not formally and di• Washington. Local direct action rep• rectly recognized or represented, but resented impatience with legal and only indirectly considered through bureaucratic efforts. As Silver ( 1963, the various arguments of industry p. 342) and others have noted, many and government. As one legal ana• activists in the state were "unim• lyst summarized, "the courts had ap• pressed with legalism and and parently given at least tacit approval constitutionalism," favoring the use to the [Federal Communication] of grassroots campaigns aimed at Commission's standing construction, problems needing immediate rem• for in no instance had standing to edy. contest a licensing order been up• In this environment the license of held on any other ground" ("Recent WLBT-TV was challenged. The sta• developments," 1967, p. 520). That tion never faced a direct action cam• is, until 1966, with the release of the paign, although African Americans WLBT-TV decision. had long complained about its pro• With WLBT, the courts' position gramming. Rather, the battle over on standing shifted. Dissatisfied with WLBT would be waged primarily in the aforementioned precedents, the

Court of Appeals established that the Such remarks implied the Court listening public was now to be consid• of Appeals was attempting to dis• ered as potentially "aggrieved" by tance itself from the FCC. Passages renewal of broadcast station licenses, such as the one above suggest that and as a potential "party in interest" the commission had a certain inflex• empowered to challenge license ibility which the court was now rebuk• grants and renewals. In granting ing and positioning as detrimental to standing to the appellants, Warren the public interest. Burger wrote for Circuit Judges This re buke seems to have little McGowan and Tamm: justification in terms of legal coher•

Since the concept of standing is a practi• ency. Indeed, in terms of coherency. cal and functional one designed to in• the commission's, not the court's, de• sure that only those with a genuine and cision would seem to be much stron• legitimate interest can participate in a ger. The former's determination w a s proceeding, we can see no reason to based on well- established and often exclude those with such an obvious and cited precedents such as FCC r1. San- acute concern as the listening audience. ders Brothers Radio Station ( 1940), This much seems essential to insure that Scripps-Howard Radio, Inc. v. FCC the holders of broadcasting licenses be ( 1942), and NBC v. FCC (1942). It is responsive to the needs of the audience, also worth repeating that the court without which the broadcaster could not had given at least its tacit approval to exist (59 F.2d 1002). these prior commission construc• In granting standing to represen• tions of standing. tatives of the "listening audience," However, in this case, the court the court recognized it had broken took great pains to f oreground the away from previous, more restricted flexibility and dynamism of stand• notions of standing, admitting that ing. Standing was defined as a "prac• "'up to this time, the courts have tical and functional concept." After granted standing to intervene only to tracing a case history of standing law. those alleging electrical interfer• the court remarked, "This history ence ... or alleging some economic indicates that neither administrative injury" (359 F.2d 1000). However, nor judicial concepts of standing have now the court had decided to ex• been static" (359 F.2d 1000). pand notions of public interest be• In addressing the FCC argument yond those represented in the con• that the commission itself could fairly stricted categories of the past. represent the listening audience and Claiming a new flexibility and ability thus eliminate the need for further to adapt based on experience, the formal public representation, the court continued: "... What the Com• court again implied that the commis• mission apparently fails to see in the sion had been unjustifiably rigid in present case is that the courts have contrast to the judicial body's reason• resolved questions of standing as they able, flexible, commonsensical dispo• arose and have at no time manifested sition. In a passage which damages an intent to make economic interest claims to formalistic justification by and electrical interference the exclu• constitutionality, process, or prece• sive grounds for standing" (359 F.2d dents, Burger wrote that "experi· 1000-1001). ence" linked to an implied "common 81

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sense” had guided the decision-mak• garding standing and WLBT high• ing: lighted a problem that is central to the critical legal studies critique of The theory that the Commission can traditional legal practice, namely, the always effectively represent the listener 8 interests in a renewal proceeding with• fundamental indeterminacy of law. out the aid and participation of legiti• In this case, the court explicitly dis• mate listener representatives fulfilling the posed of the idea that standing had role of private attorneys general is one of a natural, inherent, or self-evident those assumptions we collectively try to meaning. Rather, its meaning had work with so long as they are reasonably been, and continues to be, a site of adequate. When it becomes clear, as it social and legal struggle, dynamic does now, that it is no longer a valid assumption which stands up under the through time and place. In this his• realities of actual experience, neither we tory, the court made the point of nor the Commission can continue to rely discarding the arguments regarding on it. The gradual expansion and evolu• constitutionality, process, and prece• tion of concepts of standing in adminis• dents advanced by the FCC, subordi• trative law attests that experience rather nating such claims to consideration than logic or fixed rules has been ac• of "nonlegal" variables, such as cepted as the guide (359 F.2d 1003-- industrial and "consumer" 1004). conditions. Clearly, social factors This paragraph asserts rather surrounding the case were important baldly that the court's standing deci• to the judicial decision. sions had been based on consider• Further, the court statements to ations outside those of constitutional• the FCC regarding the strengths of ity, process, and precedents. It the minority complaint suggest that explicitly privileged "experience" the judges pondered the merits of over formalistic legal "logic" or "fixed the legal challenge when formal rules." The grounds for standing had guidelines dictated that standing was uneasily shifted, with little legal ratio• to be determined a priori (359 F.2d nale available outside of "it seems to 1006--1009). The court's concluding be the best decision in this instance, remarks underscored its concern as given the experience of past years." it surveyed the station's history and Elaborating on this rationale, Keller stated "a pious hope on the Commis• (1967, p. 135) wrote that the court recognized that previously narrow sion’s part f o r better t h i n g s constructions of standing "had not from WLBT is not a substitute for achieved the desired result," ostensi• evidence and findings" (359 F.2d bly of serving the "public interest," 1008). Critics noticed this formal and therefore was advocating a new transgression, questioning the standing construction. Even tradi• appropriateness of court remarks tional legal analysts noted the court's suggesting how the FCC should lack of formal justification in this shift, have ruled in its initial statement stating in one instance that the deci• regarding WLBT li• cense renewal sion underscored the "burdensome (38 FCC 1143 [1965]). The and artificial construction of stand• Michigan Law Review (1967, p. ing requirements" ("Notes," p. 384). 524), for example, remarked that the The Court of Appeals' writing re- propriety of the court's approach was questionable" since policy determina-

tions are clearly within the conditions even as such conditions shape exclusive scope of the Commission’s them. expertise.” By 1960 broadcasting was increasingly The WBLT case does not stand defined as a consumer concern. Quiz show alone in regard to this type of formal scandals and FCC commissioner transgression. In analysis of misconduct had brought television into constitutional standing, for example, disrepute, and these exploitations of a critics have argued that standing has become “a surrogate for decisions on relatively young and promising medium merits” and that the law of standing were widely publicized in the popular “is little more than a set of disjointed press, arousing public dissatisfaction rules dealing with dealing with a (Boddy, 1990). At the same time, common subject” (Tushnett, 1977, p. prominent political leaders such as 663). In this surrogacy, standing law Kennedy campaigned to align themselves denies its social construction and with government protection or the social specificity, cloaking itself in consumer (Pertschuk, 1982). As Pertschuk an a priori rationale claiming a clean ( 1982, p. 17) has noted, Kennedy's separation from consideration of "consumer" campaign speech was greeted contemporary social conditions. enthusiastically, and "opinion polls showed The WLBT decision threatens to broad, though not necessarily deep, public strip this cloak from standing law, endorsement of ... consumer protection exposing the social and cultural forces at work I such decision- initiatives." making. A more than cursory In 1962, the president established a examination of the precedent-setting Consumer Advisory Council which had 1966 Court of Appeals decision liaisons with various federal administrative supports the contention that standing agencies, including the FCC. And in 1964, law is fundamentally indeterminate as Lyndon Johnson established the as are the meanings of specific legal President's Committee on Consumer terms such as “the public interest.” Interests, his special assistant for consumer Further, it reveals a moment in which affairs, Esther Peterson, continued the formalistic justification for legal communication between the executive standing and specific case merits branch and the FCC. During these years, were conflated in an environment of the White House occasionally asked the considerable social struggle. commission for an account of activities it Transforming Viewers had undertaken in the interest of the To better understand the 1966 Court American consumer. Thus, FCC actions decision regarding standing, it is such as their work on the "All Channel necessary to look more closely at how this Receiver Bill" were called to the attention judicial body defined various social of the White House as "efforts to help the groups and consider how these definitions consumer" (Papers of E. William Henry, related to a specific social milieu. This is Box 76, "Assistant for Consumer Affairs" not to suggest that legal texts or and "White House Correspondence").!~ definitions simply reflect the social realm, In the popular press, a January, but that such discourses emerge in an interactive and creative way, working on social

1960,cover article titled "Where, may broadcast bureau, again with Henry's we ask, was the FCC?" in Consumer support, unsuccessfully attempted to Reports, blasted the commission for take punitive action against specific inactivity and "passing the buck" es• pecially in regard to "false and stations located in , Missis• irritating" advertising. The article sippi, and Arkansas accused of broad• warned that by flooding air channels casting too many commercials with poor programming and ads, (Baughman, 1985, p. 135). broadcasting companies could "deci• With this as a historical backdrop, mate the consumer use-value of all the legal texts of the WLBT struggle receiving sets" (p. 9). Calling for the are better understood. For example, it "implementation of the consumer po• comes as no surprise that the United sition in Government," the article Church of Christ legal team, nominated television as the nation's counseled by former FCC staff mem• dominant consumer concern, stating ber Ann Aldrich, included a com• "the consumer investment in and the plaint of overcommercialization in consumer interest in television and the WLBT petition to deny licens• radio dwarf that of any other ing. Such a complaint, seemingly segment" (pp. 11, 9). trivial in comparison to charges of Faced with public anxiety over ad• racist programming, resonated with vertising and claims that ads were public and FCC concerns. Even after increasingly false and pervasive, the the 1966 court decision ignored the FCC, under the leadership of Newton overcommercialization charge, the Minow (1961-63) and William Henry UCC petitioned the FCC to revisit its (1963-66), launched campaigns complaint regarding too many ads (5 against overcommercialization in FCC2d 37). broadcasting (Baughman, 1985, pp. Beyond the contention that adver• 117-152). Congressional members, tisements were too frequent and in• acting as defenders of the broadcast terruptive, anxieties regarding false industry, were persistent in curtail• or misleading ads were closely linked ing these administrative agency ef• to notions of consumerism and eco• forts. However, powerful FCC com• nomic protection. Applied to broad• missioners believed that the public casting, the logic of consumerism shared their displeasure with the again focused on expenditure and number of commercials aired and the the viewer's return from financial in• "ever increasing interruption of vestment. Consumer protection was programs" (Baughman, 1985, p. not so much protection from frustra• 123). tion or annoyance or more threaten• William Henry, FCC chair during ing systemic injustices as from unin• the early years of the WLBT chal• formed, irrational, or unwise lenge, encouraged the commission's investment-in other words, protec• broadcast bureau to "closely check tion from "not getting one's money's individual renewal applications for worth." This concern was evident, the number of commercial messages for example, in the 1960 Consumer pledged on the license form versus Reports article, as it foregrounded those actually aired" (Baughman, public spending on television and 1985, p. 134). In mid-1964, the radio purchases and spoke of "con• sumer use-value." This economic

logic was also clear in the arguments coal, electricity, and broadcasting, ar• employed by the UCC legal team in guing that consumers of these and the WLBT case, and was adopted by other commodities had certain eco• the court in its 1966 opinion. The nomic claims, and in some cases had contention of the petitioners was that been granted temporary standing be• the public, through ownership of sets fore administrative agencies such as and their appurtenances, had a large the Federal Trade Commission. Con• economic stake in broadcasting, had tending that television "consumers" not received a fair return for its in• and consumers of margarine needed vestment, and therefore deserved le• similar administrative protections, the gal standing as an economically ag• court's opinion reflected a temporary grieved party (Parker, 1982). and artificial, yet formally This argument provided the awk• demanded, separation of social justice ward equation through which the from individual consumer concerns. court defined local African-Ameri• The court's defense of individu- can concerns as synonymous with the ated television consumers was those of the American consumer. The summed up with a quotation from judges gave considerable discussion Edmond Cahn: "Some consumers to the specific history and practices need bread; others need Shakespeare; of WLBT early in the opinion, focus• others need their rightful place in the ing hard on the allegations of racial national society-what they all need is discrimination. However, as the court articulated its position regarding the processors of law who will consider issue of standing, considerations of the people's needs more significant this history dropped out of its writ• than administrative convenience" ing in deference to formal constraints (359 F.2d 1005). Employing such dictating standing be considered only liberal proclamations, the court in relation to specific persons, firms, transposed middle-class assumptions or corporations, rather than social onto other groups, in this case, pre• classes or groups. dominantly working and underclass Such constraints were, and con• African Americans in the nation's tinue to be, the product of American poorest state. Discussing which par• legal liberalism-a philosophical ties should be officially recognized framework that reproduces the arti• rather than deemed legally invisible, ficial dichotomization of the indi• the court effectively subordinated vidual and society and inconsistently concrete cultural concerns regarding privileges individual liberty over so• popular representation to the cial responsibility. Working and writ• economic logic of consumer protec• ing within this tradition, the court tion. was formally mandated to address The argument that viewers should specific economic grievances-indi• be principally defined as consumers vidual material losses-rather than owning television sets, thus holding systemic discrimination. This was, an economic stake in local broadcast• and is, the purview of administrative ing, had little resonance with many jurisprudence. poor African Americans, even if ac• Thus the court drew parallels be• cepted at face value. Such consumer tween the consumers of margarine. protections assumed the citizen was economically independent, when this 85

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was hardly the case for many black government, hegemony, and federal Mississippians. Truly independent broadcast policy, the state is respon• consumer choices were a luxury af• sible for controlling antagonisms be• forded relatively few African Ameri• fore they become systemic conflicts. cans in the state. Further, although One of the means noted as working television purchases escalated nation• toward this end is identification of wide in the sixties, census data reveal social agents not as members of an• that "nonwhite" households in Missis• tagonistic classes [or races]-but as sippi lagged well behind other popu• individual legal subjects. In comple• lations in the acquisition of this tech• mentary fashion, "the state presents nology, at least in the late fifties. itself as the agent for solving the Considerably less than half, approxi• problems of individual juridicial mately 40 percent of "nonwhite" citizens..." (Mosco, 1989, p. 119). In households in Mississippi had televi• Washington, the Kennedy adminis• sions as the decade began, compared to tration threw support behind en• television's presence in 66 percent of deavors aimed at the furtherance of "all occupied households in the individual voting and consumer state." In impoverished rural areas, rights rather than rallies and large• even a smaller percentage of nonwhite scale public protests. As historian households had a set at home (U.S. David Chalmers (1991, pp. 23, 40) Department of Commerce, 1963). has noted, the national government Thus, the court's discussion of was not willing to directly challenge the standing via consumerism, while Southern status quo much be• yond resonating with federal legislation the issue of voting rights, and as "the prohibiting public discrimination civil rights strategy of the early against customers, effectively ignored sixties increasingly became one of important social differences and his• forcing the issue in the streets, ... the tories in a construction of the homog• administration treated it as a problem enized, individualized television of conflict containment." Members of viewer-consumer. Anxiety regarding the Jackson movement frequently the state's address of racial conflict complained about the lack of federal was displaced by "consumer" and support for their highly visible direct "public interest" concerns, and in a action campaign. In this case, the larger sense, by the formal demands court's choice to deal with the of legal liberalism, with its dichotomi• petitioners as representative of zation of public and private, as well consumers worked to atomize or iso• as individual and social, interests. late the complainants as individual This symbolic displacement, how• consumers of the television program• ever temporary, allowed the state, ming. The court's employment of the represented by the Court of Appeals, Cahn quotation foregrounded this to address a race-based threat t.o so• atomization quite clearly, with the cial and economic stability, via an message that "some consumers need official legal discourse, without di• this, others that." The court's alterna• rectly appearing to offer such an ad• tive, guarded against by the rules dress. As Vincent Mosco (1989, p. and procedures of legal liberalism, 118) points out in a discussion of was more menacing-to recognize that the petitioners represented the

concerns of a race or an aggregate to curb practices that were deeply threat. painful to people of color, and initiated the process by which the CONCLUSION station was awarded to a majority- In addressing the WLBT case, FCC black coalition in 1979. Chairman E. William Henry declared On another level, in terms of indus• in 1965 that the issue at hand was trial and regulatory structures or ex• "not civil rights," but "the integrity isting patterns of power, the station of the public interest standard and challenge and court decisions did the Commission's renewal process'' little more than ratify the status quo (38 FCC 1153). This study directly by suggesting that the regulatory sys• challenges such a claim, arguing the tem was corrective-that it indeed WLBT case was very much about worked. While the 1966 ruling re• civil rights, as well as other social garding legal standing for WLBT dynamics. The symbolic evacuation viewers energized and facilitated the of racial struggle evident in Henry's broadcast reform movement, by the quotation, if accepted uncritically, late seventies further bureaucratic re• leads t o a superficial understanding trenchment effectively diminished the of an important moment in power of this legal precedent and American law and history, and ensuing activism even before Reagan reinforces a dichotomy of legal administration deregulation. II reasoning and social change. To With the Reagan administration, contend that notions such as the an argument was reenergized that "public interest," or the formalistic continues today, namely that ad• legal/administrative process, are the dress of legal questions such as stand• central issues in such a case is to ing or rights should be color-blind. grant them an undeserved autonomy-- This contention is prominent in con• one that denies their relationship to, temporary debates revolving around and degree of dependence on, central problems as varied as voting rights social and political forces. and FCC licensing. Hopefully, the Situating the WLBT-TV fight analysis offered here warns that to within the 1960s adopt a color-blind approach or ad• reveals how this struggle echoes the dress is to, among other things, ab• strategies and ambiguous legacy of the stract issues of race from history and movement as a whole.10 On the level reproduce the liberal myth of a fun• of local and tactical politics, such damentally fair marketplace that challenges were part of campaigns that magically balances disparate social in• offered moments of empowerment and terests. Critical observers of race rela• resistance for African Americans. tions and law convincingly demon• Although it is difficult to gauge the strate that the ahistorical standard of empowerment experienced by black color-blindness fails to achieve the Mississippians in their moments of race neutrality it formally claims. As resistance and challenge to WLBT, the one African-American scholar puts it, local implications of such activism to believe "that color-blind policies should not be ignored or devalued. At represent the only legitimate and the very least, the attacks on WLBT effective means of ensuring a racially forced Jackson stations equitable society, one would have to 87

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assume ... that such a racially equi• the examination of these breaks or table society already exists" (Crenshaw, formal gaps, there should be a sensi• 1988, p. 1344). In the formal claims tivity to the struggle surrounding of• of color-blindness and equal process, ficial and popular discourses, such as social and historical differences are those of consumerism, and their in• dismissed. A quote from Patricia tersection with law. In the sixties, Williams (1991, p. 48) serves well in consumerism was invoked both by summarizing this point: civil rights activists and federal insti• tutions in the context of establishing Law and legal writing aspire to new law or policy. For those in the formal• ized, color-blind, liberal ideals. Jackson movement, consumer con• Neutral• ity is the standard for assuring cerns called for the recognition of these ideals; yet the adherence to it is social differences and a response to often determined by reference to an the historic, long-term neglect of the aesthetic of uniformity, in which free market. From Washington, the discourses of consumerism effaced difference is simply omitted. For social differences and tensions, re• example, when segregation was producing the model of the individ• eradicated from the American lexicon, uated American consumer and the its omission led many to believe that vision of an essentially fair, consumer• racism therefore no longer existed. producer balanced society. In the Race-neutrality in law has become the rhetoric of the Court of Appeals and presumed antidote for race bias in real institutions of law, we see the uncom• life. fortable mediation of these conflict• ing consumerisms, and an attempt to Even as American law proclaims address racial tensions accompanied its lack of formal bias, we can see in by a simultaneous displacement of specific instances, such as the WLBT these concerns. case, that social concerns and pres• sures often force breaks in legal rea• soning--disjunctures that are inad• equately explained by law itself. In

NOTES

1An earlier version of this paper was presented at the 1993 meeting of the Society for Cinema Studies. I gratefully acknowledge the consistent encouragement and insights of John Fiske and Lynn Spigel, and thank the anonymous reviewers for their valuable critiques. 2Among the early leadership of the Movement were John and Eldri Salter of and Medgar Evers, field secretary of the Mississippi NAACP. The Salters began working with the North Jackson Youth Council of the NAACP shortly after their 1961 arrival in Jackson. This Council formed the early core of the Movement. John Salter recalls that a great majority of recruits to the Movement were high school students, and that they had "reached the point where they perceived the injustices very clearly, and they also saw the vision very clearly. They just didn't feel inhibited ...they were the backbone of the boycott and the backbone of the mass marches" (Oral History of John Salter, pp. 29-30). In 1963, after his appointment as chaplain at Tougaloo, the Reverend also played a key leadership role in Movement activities. 3Kennedy's 15, 1962 speech was titled "Special Message to the Congress on Protecting the Consumer Interest" ("Public papers," pp. 235-243). Creighton (1976) de• scribes this public employment of concern for the consumer, noting that in political speeches consumers could be attractively framed as "individuals and households unsullied by govern• mental malfeasance" (p. 42). Pertschuk (1982) also provides insightful analysis of this period. A focus on the "consumer" was not only evident in political pronouncements, but in popular

press treatments of civil rights activism. For example, in NBC"s three hour primetime special tided 'The American Revolution of 1968,•• a '"study of the American Negro's struggle for equality," host Frank Magee sought to "define this revolution" as having as an immediate goal "what might be called consumer rights as easily as civil rights...." 4This approach is informed by work in the critical legal studies (CLS) movement. For example, in an introduction to CLS, Kelman (1987) writes, "CLS theorists have devoted" great deal of their efforts to demonstrating that law and society are inseparable or interpenetrating and arguing that traditional pictures of that relationship between law and society that ignore that point almost invariably make law seem both more important than it is (in supposing that particular structures require particular rules) and less important than it. is (in ignoring its basic constitutive nature)" (p. 7). 5As Haight and Weinstein (1981) have observed, the victory of local petitioners in the WLBT case "gave tremendous hope to prospective petitioners that further gains could be made by taking this 'legal route'" (p. 115). Such challenges were viewed as opening "doors for reforming the media through the administrative process" (Haight and Weinstein, p. I 15: also see Branscomb and Savage, 1978). As scholars have subsequently noted, these hopes for long-term reform were poorly founded (Rowland, 1982; Haight and Weinstein, 1981). However, the WLBT case offered strategic legal "tools" for broadcast reform activities in the late sixties and early seventies. The writings of Rowland (1982) and Haight and Weinstein (1981) go beyond simple historical description to provide productive critical analyses of this period. 6The definition of television and radio as primarily commercial enterprises with attendant consumer concerns is evident throughout the history of .American broadcasting and broad• cast regulation. From their earliest years, radio and television were regulated as "interstate commerce" in accordance with the Constitution's interstate "commerce clause"' of Article I. Section 8. Thus, congressional oversight of radio and television has long been justified by broadcasting's commercial "nature." Along these lines, it. is interesting to note that important challenges to segregation came through the commercial sector, and found legal grounding in interstate commerce regulation (for example, the Interstate Commerce Commission’s orders to abolish Jim Crow facilities and practices). 7Although the 1964 petition to deny the license ofWLB"1"-TV followed local field work and studies conducted in 1963, 1963-64 was not the first period of local complaint against the station. African-American efforts to change local broadcast practices began earlier, prior to the intention and involvement of the UCC. Specifically, Medgar Evers and the NAACP filed complaints against the segregationist practices of the station in 1955 and 1957. In the latter year, WLBTs treatment of the Little Rock school crisis prompted Evers to request airtime. He was denied. The FCC showed no interest in intervention, though made aware of the situation by the NAACP. In 1957 the Commission granted WLBT a "license to cover construction permit," and in 1959 renewed the station’s license without a hearing on local complaints (40 FCC 479). 8Streeter (1990) offers a description of the intellectual contributions made by the critical legal studies (CLS) movement as well as a discussion of applications to communications policy It should be noted that within critical scholarship, the work of CLS students has been variously challenged and complimented by texts engaging the perspectives of African Americans. Legal analysts such as Patricia Williams (1991), Derrick Bell (1987. 1992), and Kimberlee Crenshaw (1988) show an appreciation for CLS interventions while maintaining important differences. and provide insights regarding the racial politics of law and its operations. 9President Kennedy mentioned the ""All Channel Receiver Bill,·· then pending adoption b) Congress, in his 1962 "Consumer Interest" address. In this speech the president also touched on other "consumer" concerns being addressed by the administration, including television programming. In part, Kennedy stated, ''The Federal Communications Communications Commission is actively reviewing the television network program selection process and encouraging the expanded development of educational television stations'" ("Public papers." p. 2 7). 89

10 Thanks to an anonymous reviewer for suggesting I consider this parallel. 11 Rowland ( 1982) argues along these lines in regard to the broadcast reform efforts of the sixties and seventies, highlighting "The symbolic dimension of the process, the significance of broadcast reform as part of an overall political legitimization-of ratification of prior structural arrangements and power allocations..."(p. 3). Examples of bureaucratic retrenchment in regard to citizen standing are perhaps most obvious in the FCC's erection of a procedural labyrinth for citizen petitioners, beginning in 1972 (see 'The Public and Broad• casting-A Procedure Manual," September 26, 1972, 37 FCC 2d 286). In its complex "'Procedure Manual'" for citizens' groups, the FCC made it clear that broadcast performance inquiries were to be initiated by private citizens, not the commission, and that the burden of proof rested on the shoulders of challenging parties (Rowland, 1982, p. 17).

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