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SUBPENAED MATERIAL RE CERTAIN TV

NEWS DOCUMENTARY PROGRAMS

HEARINGS

BEFORE THE

SPECIAL SUBCOMMITTEE ON INVESTIGATIONS

OF THE

COMMITTEE ON

INTERSTATE AND FOREIGN COMMERCE

HOUSE OF REPRESENTATIVES

NINETY-SECOND CONGRESS

FIRST SESSION

APRIL 20, MAY 12, JUNE 24, 1971

Serial No. 92-16

Printed for the use of the

Committee on Interstate and Foreign Commerce

SUBPENAED MATERIAL RE CERTAIN TV

NEWS DOCUMENTARY PROGRAMS

HEARINGS

BEFORE THE

SPECIAL SUBCOMMITTEE ON INVESTIGATIONS

OF THE

COMMITTEE ON

INTERSTATE AND FOREIGN COMMERCE

HOUSE OF REPRESENTATIVES

NINETY-SECOND CONGRESS

FIRST SESSION

APRIL 20, MAY 12, JUNE 24, 1971

Serial No. 92-16

Printed for the use of the

Committee on Interstate and Foreign Commerce

U.S. GOVERNMENT PRINTING OFFICE

62-142 0 WASHINGTON : 1971

For sale by the Superintendent of Documents, U.S. Government Printing Office

Washington, D.C. 20402 - Price $1.50
J. J. PICKLE, Texas

RAY BLANTON, Tennessee

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE

HARLEY 0. STAGGERS, West Virginia, Chairman

TORBERT H. MACDONALD, Massachusetts

JOHN JARMAN, Oklahoma

JOHN E. MOSS, California

JOHN D. DINGELL, Michigan

PAUL G. ROGERS, Florida

LIONEL VAN DEERLIN, California

J. J. PICKLE, Texas

FRED B. ROONEY, Pennsylvania

JOHN M. MURPHY, New York

DAVID E. SATTERFIELD III, Virginia

BROCK ADAMS, Washington

RAY BLANTON, Tennessee

W. S. (BILL) STUCKEY, JR., Georgia

PETER N. KYROS, Maine

BOB ECKHARDT, Texas

ROBERT 0. TIE RNAN, Rhode Island

RICHARD PREYER, North Carolina

BERTRAM L. PODELL, New York

HENRY HELSTOSKI, New Jersey

JAMES W. SYMINGTON;Missouri

CHARLES J. CARNEY, Ohio

RALPH H. METCALFE, Illinois

GOODLOE E. BYRON, Maryland

WILLIAM R. ROY, Kansas

WILLIAM L. SPRINGER, Illinois

SAMUEL L. DEVINE, Ohio

ANCHER NELSEN, Minnesota

HASTINGS KEITH, Massachusetts

JAMES T. BROYHILL, North Carolina

JAMES HARVEY, Michigan

TIM LEE CARTER, Kentucky

CLARENCE J. BROWN, Ohio

DAN KUYKENDALL, Tennessee

JOE SKUBITZ, Kansas

FLETCHER THOMPSON, Georgia

JAMES F. HASTINGS, New York

JOHN G. SCHMITZ, California

JAMES M. COLLINS, Texas

LOUIS FREY, JR., Florida

JOHN WARE, Pennsylvania

JOHN Y. McCOLLISTER, Nebraska

RICHARD G. SHOUP, Montana

W. E. WILLIAMSON, Clerk

KENNETH J. PAINTER, Assistant Clerk

JAMES M. MENGER, Jr.

WILLIAM J. DIXON

Professional Staff

CHARLES B. CURTIS

ROBERT F. GUTHRIE

KURT BoRcuARDT

SPECIAL SUBCOMMITTEE ON INVESTIGATIONS

HARLEY 0. STAGGERS, West Virginia, Chairman

WILLIAM L. SPRINGER, Illinois

RICHARD G. SHOUP, Montana

DANIEL J. MANELLI, Acting Chief Counsel

MICHAEL F. BARRETT, Jr., Attorney

JAMES F. BRODER, Special Assistant

JAMES R. CONNOR, Special Assistant

WILLIAM T. DRUHAN, Special Consultant

MICHAEL F. DUFF, Staff Consultant

MICHAEL J. PARKER, Attorney

MARK J. RAABE, Attorney

BEN M. SMETHURST, Special Assistant
•

•

CONTENTS

Hearings held on— Page

April 20, 1971 1

May 12, 1971 31

June 24, 1971 65

Testimony of—

Appel, John D., deputy general counsel, CBS; Lloyd N. Cutler, and

Daniel K. Mayers, Wilmer, Cutler & Pickering, Washington, D.C.,

counsel for CBS, Inc 20

Henkin, Daniel Z., Assistant Secretary of Defense (Public Affairs)

accompanied by Lt. Col. William M. Taylor, executive assistant 33

Monderer, Howard, counsel for National Broadcasting Co 13

Frank Stanton, president, CBS, accompanied by Lloyd Cutler,

counsel 71

Additional material submitted for the record by—

Columbia Broadcasting System, Inc.:

Legal opinion dated June 15, 1971 361

Letter dated June 29, 1971 transmitting supplementary opinion of

CBS counsel 349

Letter dated July 7, 1971 supplying additional material for the

record including CBS policy on public viewing of outtakes;

additional data on April 12 Time magazine article; journalists'

policy on editing question and answer interviews; position of

Association of American Publishers; and number of letters to

journalism schools and faculty members from CBS 350

Special Subcommittee on Investigations:

Biographical statement of Daniel Z. Henkin 32

Broadcasting articles dated November 23, 1959, entitled "Program

Ground Rules at CBS—TV" and "How CBS—TV spells out its

programing rules" 139

FCC Opinion "In re complaints covering CBS program 'Hunger

in America' " 367

Letter dated March 9, 1971, from Chairman Staggers to Frank

Stanton regarding Henkin/Mudd interview and the use of

"reverses"; reply from Richard Salant dated March 23, 1971_ _ 46

Letters dated March 20 and April 5, 1971, from Benjamin Ginzburg, executive secretary, AIM, to Richard Salant, president,

CBS News, regarding "The Selling of the Pentagon" 353

Letter dated April 16, 1971, from Corydon B. Dunham, NBC, in

response to subcommittee subpena transmitting "Say Goodbye" transcript and correspondence between NBC and Wolper

Productions regarding the documentary 151

Letter dated April 19, 1971, from Richard G. Underwood,

director, Syracuse University Press, Publishing Division,

Syracuse, N.Y., regarding position taken by Association of

American Publishers, Inc 124

Letter dated April 20, 1971, from Robert V. Evans, CBS, transmitting transcripts of "The Selling of the Pentagon" and

postscript 233

Letter dated April 30, 1971, from Robert V. Evans, CBS, transmitting CBS legal brief dated April 27, 1971 223

Letter dated April 30, 1971, from CBS to Armed Forces Radio

and Television Service withdrawing authorization for showing

of "The Selling of the Pentagon" to overseas armed forces

television stations 36
Iv

Additional material submitted for the record by-Continued

Special Subcommittee on Investigations-Continued

Letter dated May 7, 1971, from Howard Monderer, NBC, regarding NBC's general standards of program acceptability and

transmitting NBC radio and television broadcast standards

and practices 193

Letter dated May 19, 1971, from Daniel Henkin relative to

Henkin/Mudd interview 261

Letter dated May 19, 1971, from Walter J. Cunningham transmitting 1969 correspondence between Mr. Cunningham and

CBS 83

Selected provisions of the Rules of the House of Representatives

applicable to subcommittee activities 7

Subcommittee comparison of CBS script with original Henkin/

Mudd interview 41

Subcommittee legal memorandum dated June 8, 1971 267

Subpena dated July 17, 1969, served on Frank Stanton, president,

CBS, Inc. calling for the production of certain specified documents and exhibits in connection with CBS "Project Nassau"_ 90

Subpena dated April 7, 1971, served on Frank Stanton, president.

CBS, Inc. calling for the production of certain specified documents and exhibits in connection with the CBS documentary

"The Selling of the Pentagon" 2

Subpena dated May 26, 1971, served on Frank Stanton, president,

CBS, Inc. calling for his personal appearance and the production

of certain specified documents and exhibits in connection with

the CBS documentary "The Selling of the Pentagon" 76

Subpena dated April 7, 1971, served on Julian Goodman, president, NBC, calling for the production of certain specified documents and exhibits in connection with the documentary "Say

Goodbye" 4

Subpena dated April 7, 1971, served on David Wolper, president,

Wolper Productions, Inc., calling for the production of certain

specified documents and exhibits in connection with the documentary "Say Goodbye" 5

Time article dated April 12, 1971, entitled "The Art of 'Cut and

Paste' 97

Transcript of interview between Daniel Z. Henkin and Roger

Mudd 251

Washington Post article of February 23, 1971, entitled "On Press

Coverage of the Vietnam War" 54

Washington Post editorial of March 30, 1971, entitled "Mr.

Salent's Letter" 50

Washington Post TV Channel's article of June 13, entitled "The

Interview: A Precarious Ego Trip" 142

Washington Post article dated June 19, 1971, entitled "Laird

Refuses to Appear for Taped CBS Interview" 127

Appendixes:

Appendix A-Letter dated April 16, 1971, from Corydon B. Dunham,

NBC, in response to subcommittee subpena transmitting "Say

Goodbye" transcript and correspondence between NBC and Wolper

Productions regarding the documentary 151

Appendix B-Letter dated May 7, 1971, from Howard Monderer,

NBC, regarding NBC's general standards of program acceptability

and transmitting NBC radio and television broadcast standards

and practices 193

Appendix C-Letter dated April 30, 1971, from Robert V. Evans,

CBS, transmitting CBS legal brief dated April 27, 1971_ 223

Appendix D-Letter dated April 20, 1971, from Robert V. Evans, CBS,

transmitting transcripts of "The Selling of the Pentagon" and

postscript 233

Appendix E-Transcript of interview between Daniel Z. Henkin and

Roger Mudd 251

Appendix F-Letter dated May 19, 1971, from Daniel Henkin relative

to Henkin/Mudd interview 261

Appendix G-Subcommittee legal memorandum dated June 8, 1971_ _ 267

•
V

Appendixes—Continued

Appendix H—Letters dated June 29 and July 7, 1971, from Frank Page

Stanton supplying additional material for the record including supplementary opinion from CBS counsel; CBS policy on public viewing of outtakes; additional data on April 12 Time magazine article;

journalists' policy on editing question and answer interviews; position of Association of American Publishers; and number of letters to

journalism schools and faculty members from CBS 349

Appendix I—Letters dated March 20 and April 5, 1971, from Benjamin

Ginzburg, executive secretary, AIM, to Richard Salant, president,

CBS News, regarding "The Selling of the Pentagon" 351

Appendix J—CBS Legal Opinion dated June 15, 1971 361

Appendix K—FCC Opinion "In re Complaints covering CBS program

'Hunger in America' " 367

SUBPENAED MATERIAL RE CERTAIN TV NEWS

DOCUMENTARY PROGRAMS

TUESDAY, APRIL 20, 1971

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INVESTIGATIONS,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

W asking ton, D.0 .

The subcommittee met in executive session, pursuant to notice, at

1:20 p.m., in room 2322, Rayburn House Office Building, the Hon.

Harley 0. Staggers ( chairman) presiding.

Present: Representatives Staggers, Pickle, Blanton, Springer and

Shoup.

Staff members present: Daniel J. Manelli, acting chief counsel;

Mark J. Raabe and James F. Broder, staff attorneys.

The CHAIRMAN. The subcommittee will be in order. A quorum is

present.

I recognize Mr. Springer of Illinois.

Mr. SPRINGER. I make a motion, Mr. Chairman, that the meeting

this afternoon involving CBS and NBC's return of the subcommittee's

subpenas be in executive session.

The CHAIRMAN. You have heard the motion of the gentleman from

Illinois.

Mr. SHOITP. Second.

The CHAIRMAN. All those in favor let it be known by saying aye;

opposed no.

The motion is unanimous.

I would ask the representative of NBC to take the stand, if you

would, sir.

If you gentlemen from CBS would retire briefly until we get through

here, we would appreciate it very much.

Would you hold just one moment because you might both listen to

the opening statement and it will keep us from repeating it again and

then we will proceed.

I am advised that Wolper Productions in Los Angeles has informed

counsel that they intend to comply with the subcommittee's subpena

and have dispatched all the materials called for via Air Express for

delivery to the subcommittee's offices.

Wolper Productions does not have a representative at this meeting

this afternoon since they interpreted the statement on the subpena exempting Mr. David Wolper from personal appearance as meaning that

no representative from Wolper would be required to attend.

(1)
2

I can see how such a misunderstanding might arise. Under these

circumstances, I feel that Mr. Wolper and Wolper Productions are in

compliance with the subcommittee's subpena pending the arrival of

the subpenaed material.

I will ask subcommittee counsel to inform me if this material does

not arrive within a reasonable time or if, upon inspection after arrival,

it appears to be deficient in any respect.

I would ask each of you gentlemen to stand, if you would, and

raise your right hand and that means you gentlemen from CBS, too,

if you will, please.

I would like for you to identify yourself for the record if you would

first and who you are connected with.

Mr. MONDERER. My name is Howard Monderer. I am a Washington

attorney of the National Broadcasting Co.

Mr. APPEL. I am John D. Appel, deputy general counsel, Columbia

Broadcasting System, Inc.

The CHAIRMAN. The gentlemen that you have with you, are they

here for any particular purpose?

Mr. APPEL. I am accompanied by Lloyd Cutler and Daniel Mayers

of Wilmer, Cutler & Pickering of Washington who are appearing with

me as counsel.

The CHAIRMAN. I would think if they are going to answer any

questions or be a part of this ceremony they should be sworn.

Mr. CUTLER. Surely.

The CHAIRMAN. State your name

'

please.

Mr. CuER. m Lloyd N. Cutler of Wilmer, Cutler & Pickering.

Mr. MAYERS. Daniel K. Mayers of the same firm.

The CHAIRMAN. Tell us your affiliation.

Mr. CUTLER. Counsel for CBS.

The CHAIRMAN. Do you solemnly ,swear or affirm that the testimony

you are about to give before this subcommittee is the truth, the whole

truth and nothing but the truth, so help you God?

Mr. MONDERER. I do.

Mr. APPEL. I do.

Mr. CUTLER. I do.

Mr. MAYERS. I do.

The CHAIRMAN. All right. You may be seated.

On April 7, 1971, this subcommittee ordered that certain subpenas

duces tecum be served on the CBS and NBC networks and Wolper

Productions Inc. These subpenas were all duly served.

The purpose of this meeting is to receive the materials subpenaed.

Unless there is objection, I direct that the full text of the subpenas be

inserted in the record at this point, together with proof of service.

Mr. SPRINGER. Are those put in the record?

Mr. MANELLI. Yes.

(The subpenas and proof of service follow:)

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS

OF THE UNITED STATES OF AMERICA

James F. Broder and Mark Raabe, Special Subcommittee on Investigations,

House Interstate and Foreign Commerce Committee—
3

You are hereby commanded to summon Frank Stanton, President, Columbia

Broadcasting System, Inc., 51 W. 52d Street, New York, N.Y., or any officer of

said corporation [Personal Appearance Not Required]

to be and appear before the Special Subcommittee on Investigations (vested under authority of H. Res. 170, 92nd Cong.) of the Interstate

and Foreign Commerce Committee of the House of Representatives of the United

States, of which the Hon. Harley 0. Staggers is chairman, and to bring with

him all items shown on the attached list, hereby incorporated into this subpena

in their chamber in the city of Washington, on April 20, 1971 in Room 2323,

Rayburn House Office Building, at the hour of 10:30 a.m. then and there to testify

touching matters of inquiry committed to said Committee; and he is not to

depart without leave of said Committee.

Herein fail not, and make return of this summons.

Witness my hand and the seal of the House of Representatives of the United

States, at the city of Washington, this 7th day of April, 1971.

HARLEY 0. STAGGERS,

Chairman.

Attest:

W. PAT JENNINGS,

Cleric.

ATTACHMENT INCORPORATED INTO THE SUBPENA DATED APRIL 7,

1971, ISSUED BY HARLEY 0. STAGGERS, CHAIRMAN, SPECIAL SUBCOMMITTEE ON INVESTIGATIONS OF THE HOUSE INTERSTATE AND

FOREIGN COMMERCE COMMITTEE TO FRANK STANTON, PRESIDENT,

COLUMBIA BROADCASTING SYSTEM, INC., 51 WEST 52D STREET, NEW

YORK, N.Y.

1. A 16-millimeter sound film copy, and a written transcript, of each of the

following broadcasts: ( a) the CBS documentary entitled "The Selling of the

Pentagon" as broadcast on February 23 and March 23, 1971, and ( b) the broadcast carried on March 23, 1971, immediately following the broadcast of "The

Selling of the Pentagon," and composed of comment on the aforesaid program

together with the reply of Mr. Richard Salant on behalf of CBS. Provided, that

in the event that a 16-millimeter sound film copy of either of the above broadcasts

is unavailable to CBS, videotape copies may be substituted.

2. All film, workprints, outtakes sound tape recordings, written scripts and/or

transcripts prepared, obtained, or utilized in whole or in part by CBS in connection with the preparation and/or presentation of the broadcasts described in

Paragraph 1, above, whether or not such material was incorporated into the actual

broadcasts. Provided, that this paragraph 2 shall not apply to materials that

relate solely and exclusively to the remarks of Mr. Richard Salant referred to in

paragraph 1(b), above, and Provided further, that where official United States

Government film was utilized, full identification of all such film may be supplied

in lieu of actual film.

3. The names and addresses of all persons appearing in "The Selling of the

Pentagon" and/or filmed or recorded in connection with its preparation.

Provided, that this paragraph 3 shall not apply to Government officials (including Members of Congress), military personnel, persons who were regular CBS

employees as of January 1, 1970, or to persons whose inclusion in the said program arises solely by reason of their appearance in official United States Government films incorporated into the program.

4. A statement of all disbursements of money, things of value, or legal consideration of any kind, for any purpose, made by CBS to any individual named in

response to paragraph 3, above, together with the amount and/or nature of such

disbursement, and the purpose for which it was made. This statement shall be

certified to be correct by CBS.

5. Copies of any written agreements, contracts, or releases entered into with,

or obtained from, any individual named in response to paragraph 3, above, and a

descriptive statement of any such agreements, contracts, or releases, which were

entered into, or obtained, verbally.
4

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE

UNITED STATES OF AMERICA

To James Broder and Mark Raabe, Special Subcommittee on Investigations,

House Interstate and Foreign Commerce Committee—

You are hereby commanded to summon Julian Goodman, President, National

Broadcasting Company, Inc., 30 Rockefeller Plaza, New York, New York, or any

officer of said corporation 

[Personal appearance not required] 

to be and appear before the Special Subcommittee on Investigations ( vested

under authority of H. Res. 170, 92nd Cong.) of the Interstate and Foreign Commerce Committee of the House of Representatives of the United States, of which

the Hon. Harley 0. Staggers is chairman, and to bring with him all items shown

on the attached list, hereby incorporated into this subpena 

in their chamber in the city of Washington, on April 20, 1971, in Room 2323, Rayburn House Office Building, at the hour of 10 :30 a.m. then and there to testify

touching matters of inquiry committed to said Committee; and he is not to depart

without leave of said Committee.

Herein fail not, and make return of this summons.

Witness my hand and the seal of the House of Representatives of the United

States, at the city of Washington, this 7th day of April, 1971.

HARLEY 0. STAGGERS,

Chairman.

Attest:

W. PAT JENNINGS,

Clerk.

ATTACHMENT INCORPORATED INTO THE SUBPENA DATED APRIL 7, 1971, ISSUED BY

HARLEY 0. STAGGERS, CHAIRMAN, SPECIAL SUBCOMMITTEE ON INVESTIGATIONS

OF THE HOUSE INTERSTATE AND FOREIGN COMMERCE COMMITTEE TO JULIAN

GOODMAN, PRESIDENT, NATIONAL BROADCASTING COMPANY, INC., 30 ROCKEFELLER

PLAZA, NEW YORK, N.Y.

1. A 16-millimeter sound film copy, and a written transcript, of the NBC

documentary entitled "Say Goodbye" as broadcast on January 8, 1971. Provided

that in the event that a 16-millimeter sound film copy is unavailable to NBC, a

videotape copy may be substituted.

2. All film, workprints, outtakes, sound tape recordings, written scripts and/

or transcripts prepared, obtained, or utilized, in whole or in part, by NBC in connection with the preparation and/or presentation of the broadcast described in

Paragraph 1, above, whether or not such material was incorporated into the

actual broadcast. In the case of material obtained from sources other than NBC,

such material shall be accompanied by a statement identifying the source from

which obtained.

3. All contracts, correspondence, memoranda, notes, reports, files, licensing

agreements, or other written communications between NBC and Wolper Productions in connection with the design, preparation and/or broadcast of the program

described in Paragraph 1, above.

4. A statement of all disbursements of money, things of value, or legal consideration of any kind made by NBC to any individual appearing in "Say Goodbye" and/or filmed or recorded in connection with its preparation, together with

the amount and/or nature of such disbursement, and the purpose for which it

was made. This statement shall be certified to be correct by NBC. Provided, however, that the requirements of this Paragraph 4 do not apply to the individual

providing the narration for the program.

5. Copies of any written agreements, contracts, or releases entered into with,

or obtained from, any individual named in response to Paragraph 4, above, and

a descriptive statement of any such agreements, contracts, or releases which were

entered into, or obtained, verbally.
al

5

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE

UNITED STATES OF AMERICA

To United States Marshal, Los Angeles, California—

You are hereby commanded to summon David Wolper, President, Wolper Productions Inc., 8489 West Third Street, Los Angeles, California.

[Personal Appearance Not Required.] 

to be and appear before the Special Subcommittee on Investigations (vested under

authority of H. Res. 170 92nd Cong. ) of the Interstate and Foreign Commerce

Committee of the House of Representatives of the United States, of which the

Hon. Harley 0. Staggers is chairman, and to bring with him all items shown on

the attached list, hereby incorporated into this subpena 

in their chamber in the city of Washington, on April 20, 1971 in Room 2323,

Rayburn House Office Building, at the hour of 10:30 a.m. then and there to

testify touching matters of inquiry committed to said Committee; and he is not

to depart without leave of said Committee.

Herein fail not, and make return of this summons.

Witness my hand and the seal of the House of Representatives of the United

States, at the city of Washington, this 7th day of April, 1971.

HARLEY 0. STAGGERS,

Chairman.

Attest:

W. PAT JENNINGS,

Clerk.

ATTACHMENT INCORPORATED INTO THE SUBPENA DATED APRIL 7, 1971, ISSUED BY

HARLEY 0. STAGGERS, CHAIRMAN, SPECIAL SUBCOMMITTEE ON INVESTIGATIONS OF

THE HOUSE INTERSTATE AND FOREIGN COMMERCE COMMITTEE TO DAVID WOLPER,

PRESIDENT, WOLPER PRODUCTIONS, INC., 8489 WEST THIRD STREET, Los ANGELES,

CALIF.

1. A 16-millimeter sound film copy, and a written transcript, of the NBC documentary entitled "Say Goodbye" as broadcast on January 8, 1971. Provided that

in the event that a 16-millimeter sound film copy is unavailable to Wolper Productions, a videotape copy may be substituted.

2. All film, workprints, outtakes, sound tape recordings, written scripts and/or

transcripts prepared, obtained, or utilized, in whole or in part, by Wolper Productions in connection with the preparations and/or presentation of the broadcast

described in Paragraph 1, above, whether or not such material was incorporated

into the actual broadcast. In the case of material obtained from sources other

than Wolper Productions, such material shall be accompanied by a statement

identifying the source from which obtained.

3. All contracts, correspondence, memoranda, notes, reports, files, licensing

agreements, or other written communications between NBC and Wolper Productions in connection with the design, preparation and/or broadcast of the program described in Paragraph 1, above.

4. A statement of all disbursements of money, things of value, or legal consideration of any kind made by Wolper Productions to any individual appearing

in "Say Goodbye" and/or filmed or recorded in connection with its preparation,

together with the amount and/or nature of such disbursement, and the purpose

for which it was made. This statement shall be certified to be correct by Wolper

Productions. Provided, however, that the requirements of this Paragraph 4 do

not apply to the individual providing the narration for the program.

5. Copies of any written agreements, contracts, or releases entered into with,

or obtained from, any individual named in response to Paragraph 4, above, and a

descriptive statement of any such agreements, contracts, or releases which were

entered into, or obtained, verbally.

The CHAIRMAN. Prior to taking up the specific matter at hand, I

feel it would serve a very useful purpose to place in the record a clear
6

statement concerning the legislative purpose behind the subcommittee's action in issuing these subpenas.

Rule XI of the House of Representatives charges the Committee on

Interstate and Foreign Commerce with responsibility for legislation

having to do with the regulation of interstate and foreign communications. We have always considered this jurisdiction over the laws governing broadcasting to be one of our most important responsibilities.

Broadcasting has, from its inception, been recognized as an activity

vitally affecting the public interest. The broadcaster makes use of a

precious and limited public resource which is not available to all. As

the Supreme Court stated in the case of National Broadcasting Company v. United States, 319 U.S. 190 (1943) :

Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio inherently is not available

to all. That is its unique characteristic, and that is why, unlike other modes of

expression, it is subject to government regulation.

Again, in the recent case of Red Lion Broadcasting Company v.

FCC, 395 U.S. 367 (1969) , a unanimous Supreme Court expressed

similar views in upholding the FCC's Fairness Doctrine:

The broadcasters challenge the Fairness Doctrine, and its specific manifestations in the personal attack and political editorial rules, on conventional First

Amendment grounds, alleging that the rules abridge their freedom of speech

and press.

•

Although broadcasting is clearly a medium affected by a First Amendment

interest . . . differences in the characteristics of new media justify differences

in the First Amendment standards applied to them.

• •

This is not to say that the First Amendment is irrelevant to public broadcasting . . . but the people as a whole retain their interest in free speech by

radio and their collective right to have the medium function consistently with

the ends and purposes of the First Amendment. It is the right of the viewers and

listeners, not the right of the broadcasters, which is paramount.

As the printed text of my remarks will show, I have quoted from

several portions of the Supreme Court's opinion.

Our concern with the laws governing broadcasting is not just a

matter of inclination or preference by the Commerce Committee. It is

also a duty imposed on it by clause 28 of rule XI of the House of Representatives, recently enacted as part of the Legislative Reorganization

Act of 1970. I will read briefly from that rule:

(a) In order to assist the House in—

(1) Its analysis, appraisal, and evaluation of the application, administration, and execution of the laws enacted by the Congress, and

(2) Its formulation, consideration, and enactment of such modifications

of or changes in those laws, and of such additional legislation, as may be

necessary or appropriate.

Each standing committee shall review and study, on a continuing basis, the

application, administration, and execution of those laws, or parts of laws, the

subject matter of which is within the jurisdiction of that committee.

House Resolution 170 of the 92d Congress authorizes the Committee

on Interstate and Foreign Commerce, acting as a whole or by subcommittee, to conduct full and complete studies and investigations
7

and to make inquiries within its jurisdiction, as set forth in clause

12 of rule XI of the House of Representatives. Unless there is objection, I will insert into the record at this point the pertinent text of

clauses 12 and 28 of rule XI of the House of Representatives, together

with the text of House Resolution 170. Witnesses here this afternoon

have been provided with printed copies of these materials and I invite

their careful attention to them.

(The material referred to follows:)

SELECTED PROVISIONS OF THE RULES OF THE HOUSE OF REPRESENTATIVES APPLICABLE TO SUBCOMMITTEE ACTIVITIES

RULE XI. POWERS AND DUTIES OF COMMITTEES

All proposed legislation, messages, petitions, memorials, and other matters

• relating to the subject listed under the standing committees named below shall

be referred to such committees respectively:

12. COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE

(a) Interstate and foreign commerce generally.

(b) Civil aeronautics.

(c) Inland waterways.

(d) Interstate oil compacts and petroleum and natural gas, except on the public

lands.

(e) Public health and quarantine.

(f) Railroad labor and railroad retirement and unemployment, except revenue

measures relating thereto.

(g) Regulation of interstate and foreign communications.

(h) Regulation of interstate and foreign transportation, except transportation

by water not subject to the jurisdiction of the Interstate Commerce Commission.

(i) Regulation of interstate transmission of power, except the installation of

connection between Government water-power projects.

(j) Securities and exchanges.

(k) Weather Bureau.

•

28. (a) In order to assist the House in—

(1) its analysis, appraisal, and evaluation of the application, administration, and execution of the laws enacted by the Congress, and

(2) its formulation, consideration, and enactment of such modifications of

or changes in those laws, and of such additional legislation, as may be necessary or appropriate,

each standing committee shall review and study, on a continuing basis, the application, administration, and execution of those laws, or parts of laws, the subject matter of which is within the jurisdiction of that committee.

(b) Each standing committee shall submit to the House, not later than January 2 of each odd-numbered year beginning on or after January 1, 1973, a report

on the activities of that committee under this clause during the Congress ending

at noon on January 3 of such year.

(c) The preceding provisions of this clause do not apply to the Committee on

Appropriations, the Committee on House Administration, the Committee on Rules,

and the Committee on Standards of Official Conduct.

( d) Each standing committee of the House shall, in its consideration of all

bills and joint resolutions of a public character within its jurisdiction, endeavor

to insure that—

(1) all continuing programs of the Federal Government, and of the

government of the District of Columbia, within the jurisdiction of that committee, are designed; and
8

(2) all continuing activities of Government agencies, within the jurisdiction of that committee, are carried on;

so that, to the extent consistent with the nature, requirements, and objectives

of those programs and activities, appropriations therefor will be made annually.

For the purposes of this paragraph, a Government agency includes the organizational units of government listed in paragraph (d) of clause 7 of rule XIII.

(e) Each standing committee of the House shall review, from time to time,

each continuing program within its jurisdiction for which appropriations are not

made annually in order to ascertain whether such program could be modified so

that appropriations therefor would be made annually.

H. RES. 170, 92D CONGRESS, 1ST SESSION

IN THE HOUSE OF REPRESENTATIVES

JANUARY 29, 1971

Mr. STAGGERS submitted the following resolution; which was referred to the

Committee on Rules

FEBRUARY 25, 1971

Reported with an amendment, referred to the House Calendar, and ordered

to be printed

MARCH 2, 1971

Considered, amended, and agreed to

RESOLUTION

Resolved, That, effective January 3, 1971, the Committee on Interstate and

Foreign Commerce, acting as a whole or by subcommittee, is authorized to conduct full and complete studies and investigations and make inquiries within its

jurisdiction as set forth in clause 12 of rule XI of the Rules of the House of

Representatives. However, the committee shall not undertake any investigation

of any subject which is being investigated for the same purpose by any other

committee of the House.

SEC. 2. (a) For the purpose of making such investigations and studies, the

committee or any subcommittee thereof is authorized to sit and act, subject to

clause 31 of rule XI of the Rules of the House of Representatives, during the

present Congress at such times and places within or without the United States,

whether the House is meeting, has recessed, or has adjourned, and to hold such

hearings and require, by subpena or otherwise, the attendance and testimony

of such witnesses and the production of such books, records, correspondence,

memorandums, papers, and documents, as it deems necessary. Subpenas may be

issued over the signature of the chairman of the committee or any member designated by him and may be served by any person designated by such chairman or

member. The chairman of the committee, or any member designated by him, may

administer oaths to any witness.

(b) Pursuant to clause 28 of rule XI of the Rules of the House of Representatives, the committee shall submit to the House, not later than January 2, 1973, a

report on the activities of that committee during the Congress ending at noon on

January 3, 1973.

SEC. 3. (a) Funds authorized are for expenses incurred in the committee's activities within the United States; however, local currencies owned by the United

States shall be made available to the Committee on Interstate and Foreign Commerce of the House of Representatives and employees engaged in carrying out

their official duties for the purposes of carrying out the committee's authority, as

set forth in this resolution, to travel outside the United States. In addition to any
9

other condition that may be applicable with respect to the use of local currencies

owned by the United States by members and employees of the committee, the following conditions shall apply with respect to their use of such currencies:

(1) No member or employee of such committee shall receive or expend

local currencies for subsistence in any country at a rate in excess of the maximum per diem rate set forth in section 502(b) of the Mutual Security Act of

1954 (22 U.S.C. 1754).

(2) No member or employee of such committee shall receive or expend an

amount of local currencies for 'transportation in excess of actual transportation costs.

(3) No appropriated funds shall be expended for the purpose of defraying

expenses of members of such committee or its employees in any country

where local currencies are available for this purpose.

(4) Each member or employee of such committee shall make to the chairman of such committee an itemized report showing the number of days visited in each country whose local currencies were spent, the amount of per

diem furnished, and the cost of transportation if furnished by public carrier,

or if such transportation is furnished by an agency of the United States Gov-

• ernment, the cost of such transportation, and the identification of the agency.

All such individual reports shall be filed by the chairman with the Committee on House Administration and shall be open to public inspection.

(b) Amounts of per diem shall not be furnished for a period of time in any

country if per diem has been furnished for the same period of time in any other

country, irrespective of differences in time zones.

The CHAIRMAN. Pursuant to discharging our responsibilities, we

must be concerned not only with specific proposals for new legislation

concerning broadcasting, but also with the adequacy of the present

laws and their administration. In this connection, this subcommittee

has the following legislative subjects under inquiry and study:

1. The Federal Communications Act of 1934, as amended.

2. The rules and regulations of the Federal Communications

Commission.

3. The administration and enforcement of the law and regulations

by the Federal Communications Commission.

4. The desirability of additional, or remedial, legislation in the regulation of broadcasting for the benefit and protection of the public.

5. The applicability, if any, of the Fairness Doctrine to question of

factual accuracy.

6. The adequacy of the present laws, and their administration by the

FCC, pertaining directly or indirectly to the preparation and presentation of news documentary programs.

7. Whether certain technological advances, and/or the employment

• of certain production and editing techniques, methods of operation,

and other practices by networks, broadcasters, and producers, have

given rise to the need for new laws for the protection of the public—

through disclosure requirements or other suitable means.

• In order for the subcommittee to pursue its legislative oversight

responsibilities in the field of communications, it must on occasion

make use of its subpena powers. The materials called for in the subpenas served on CBS, NBC, and Wolper Productions, are all relevant to one or more of the legislative subjects which I have just enumerated. I will be more specific on that point in a few minutes.

The regulation of broadcasting requires, of course, a due regard

for the interests of the broadcasters and the public. We must be aware

of the possibility that there may be times when the rights of the public

must be protected against encroachments and abuses by those who
10

control and utilize the instruments of mass communication. It has long

been recognized in this country that the public is entitled to certain

safeguards and protections in this area—that is, that those who engage

in mass communications have certain responsibilities to the public.

It was for this reason that the Congress enacted those provisions of

the Federal Trade Commission Act making it illegal to disseminate

false and misleading advertisements in commerce. This act governs all

mass communications, including broadcasting: its constitutionality

has of course, been conclusively established.

Another safeguard for the public is found in sections 317 and 508

of the Communications Act. These insure that the public will be

informed when the broadcaster or his employees have received any

payment or valuable consideration in connection with the broadcast

of any matter. The underlying rationale is that people have a right

to know by whom they are being persuaded. These sections require

disclosures only when the broadcaster or his employee receive inducements to broadcast certain material. However, there may also be

instances wherein the public interest might require disclosures when

the broadcaster, or the producer of programing, has given inducements to others. This would, of course, require new legislation. It is

one of the questions we are addressing in this inquiry.

In 1959, Congress was confronted with another area wherein protection of the public required the imposition of certain legal duties on

broadcasting. It was determined that deception and fraud had begun

to appear in connection with the presentation of what were purported

to be bona fide contests of intellectual skill, better known as 'Quiz

Shows." This committee inquired into the matter—making use of its

subpena powers to insure that all relevant facts were made known.

The result, after careful consideration of these facts, was the enactment

of section 509 which prohibits deception in the presentation of such

programs.

More recently, information has been received of a much more serious nature. It has been alleged that various broadcasters in connection

with the preparation and/or presentation of purportedly bona fide

news programs and documentaries have engaged in practices which

might result in misleading and deceiving the public. These practices

include: (1) prearrangement or "staging" of events which are then

presented as though they were bona fide and spontaneous news stories;

and (2) production techniques, including the manipulation of sound

tracks, film and/or videotape, which rearrange the sequence of events,

mismatch responses given during interviews, or otherwise distort the

actual event originally filmed by the camera.

The Congress, and this subcommittee specifically, have had occasion

in the recent past to examine a number of such allegations; in some

significant instances, the allegations were determined to be well

founded in fact. I refer to the program entitled "Pot Party at a University," prepared and presented by Station WBBM—TV, Chicago,

Ill., and the CBS news documentary entitled "Hunger in America."

The latter program was investigated by a subcommittee of the House

Appropriations Committee.

Very recently this subcommittee had occasion to examine in detail

the production of a CBS documentary which attempted to follow the

•
11

adventures of a group seeking to invade the Island of Haiti and over- throw its government. This was, of course, the much discussed "Project Nassau." This documentary was never brought to final completion

or broadcast by CBS.

This subcommittee found that fraudulent and deceptive production

techniques had been used in producing "Project Nassau." It is disturb- ing that CBS, both at the time and since, -has asserted that its activ- ities were a legitimate exercise of "news judgment." In its report on

the subject, this subcommittee unanimously rejected that argument. I

might quote here briefly from page 5 of the committee's report:

Fraud and deception in the presentation of purportedly bona fide news events is no more protected by the First Amendment than is the presentation of fraud

and deception in the context of commercial advertising or quiz programs.

These are, I must emphasize, matters of the most serious public importance and legislative concern. The public has a right to expect,

and I believe they do expect, that their elected representatives will ascertain the facts in order to determine whether the public interest

is sufficiently protected by existinga laws covering broadcasting. In

both the "Pot Party" and the "Project Nassau" investigations, we

made use of our subpena power to insure that we had all the available

evidence before we reached any conclusions. In both cases, the subpenas

called for the production of film outtakes and other material not used

on the air. In neither case were these subpenas challenged as beyond

the proper scope of congressional inquiry. In the case of the "Pot

Party" investigation, the outtakes were not made available because

they had been destroyed. In the "Project Nassau" case, all materials

called for in the subpena were provided. Our examination of these

materials proved their relevance to the legislative concerns of this

subcommittee.

This brings us to the crux of the matter. We are concerned that the

public be protected from deliberate staging and distortion of purportedly bona fide news. Whether this is done through prearrangement

or through subsequent manipulation of film and sound tracks, the

effect is the same. One of the things we have discovered in the light

of our previous investigations in this area is that once such a distortion has been accomplished and incorporated into a final broadcast,

it is virtually impossible to detect. This is why the original, uncut and

unedited material must be examined.

This subcommittee must consider, among other things, whether the

public has a right to be advised when edited sequences are presented to

them under conditions which might suggest that they have not been

edited; whether it has a right to be advised when an apparently continuous event is actually the result of splicing together film and sound

tracks which were obtained at different times and places; and whether

it has a right to be advised when apparently spontaneous news coverage has been obtained through staging or other prearrangements. I

cannot accept the proposition that any attempt on the part of the

people's representatives in Congress to become informed as to the

existence and effect of various television production techniques which

bear on these questions is offensive to the First Amendment. If I felt

that this was the case, we might not be here this afternoon.

To come finally to the matter at hand, we are concerned with two

television network documentaries, "The Selling of the Pentagon,"

62-142 0-71-2
12

broadcast by CBS, and "Say Goodbye" broadcast by NBC. With respect to both broadcasts, there has been substantial allegation raised

that incidents and events made to appear spontaneous and bona fide

were, in fact, the product of questionable production techniques which

distorted the original events.

These allegations have been sustained in some measure by the external evidence of the documentaries themselves. But to completely

evaluate this matter, it will be necessary to examine the original materials. Our subpenas have been designed to elicit only information

which is legitimately concerned with this subcommittee's legislative

responsibilities.

Here I feel I must make some attempt to clarify the confusion on

this point which apparently exists in some quarters. The questions

under inquiry by this subcommittee, and to which the subpenas are

pertinent, have nothing to do with evaluating the Pentagon's public

affairs activities. Our purpose is not to look into whether CBS has

been biased against the Department of Defense. Any controversy which

may have arisen between the Department of Defense and CBS as to

the conclusions drawn on the "Pentagon" documentary is likewise none

of our concern.

The sole question under inquiry here is one which is clear, definite,

and objectively ascertainable: that is, are the producers of television

news documentary programs engaging in factually false and misleading filming and editing practices, consisting of rearranging, staging,

or misrepresenting events, giving viewers an erroneous impression that

what they are seeing has really happened, or that it happened in the

way and under the circumstances in which it is shown. Certainly this

is a matter of legitimate legislative interest. I might quote from the

testimony of Dr. Frank Stanton, president of CBS, when he appeared

before the predecessor of this subcommittee 12 years ago during the

"Quiz Show" hearings of 1959. During those hearings, Dr. Stanton

stated as follows:

The test in every case must be whether any substantial number of the viewing

audience is likely, in the given circumstances, to be deceived or misled as to the

true nature of the program being offered. That test requires the exercise of human

discretion in applying a "rule of reason."

This statement, of course, was made during a hearing concerning

staged and deceptive quiz programing presented for the amusement

of television viewers. I would accept that statement as being at least

equally applicable to news programing which is presented to the viewers as a basis upon which they are to make political and social decisions; decisions, I might add, which affect their own welfare and the

future of this Nation.

By now, I would hope that the relevancy of the outtakes, nonbroadcast film, and other materials detailed in the subpenas is clear. An

allegation that questions and answers in a filmed interview have been

deliberately mismatched (to give but one example) cannot be evaluated without examination of the film of the entire interview, not just

that portion which was finally broadcast. Allegations that certain

scenes were simulated through careful editing and manipulation of

different films and sound tracks must be resolved through a consideration of the original uncut material. We can neither prejudge these

allegations nor ignore them. We simply must have the facts.
13

It should be equally obvious that the names and addresses of persons, other than network employees, appearing in the programs in

question, together with information concerning payments of money

to such individuals, is highly pertinent in an inquiry into the spontaneity of the events in which they appear.

Again I stress that it is not this subcommittee's function to sit in

judgment of the viewpoints expressed in television news or documentary programs. We do not have, nor do we seek, authority to curtail

the presentation of controversial issues or of unpopular cases or personalities. It is this subcommittee's view

'

however, that the American

public is entitled to know whether what it is seeing on the television

screen is real or simulated, edited or unedited, sequentially accurate

or editorially rearranged, spontaneous or contrived.

While the inquiry into such subject matter is controversial as has

been demonstrated over the past few days, I do not feel that we can

shirk our duty to the public. The television broadcasting industry is

still in its relative infancy; it has been on the scene as a national force

for about 24 years. The legislative delineation of the duties of this

industry to the public is still evolving. It is only through frank discussion and honest inquiry, with all the facts on the table, that we will

make progress.

I am aware that I have expressed my views at some length, but the

subject matter is of great importance. This matter has been considered

carefully. For my part, I am convinced that the American public has

the right to know and understand the techniques and procedures which

go into the production and presentation of the television news documentaries upon which they must rely for their knowledge of the great

issues and controversies of the day. They have a right to know—not

only by whom—but how they are being persuaded. We are here today

to assert those rights.

That is the end of the statement.

The CBS gentlemen if you will show them out, Mr. Broder. We

will call you back in a few moments.

(At this point Mr. Appel, Mr. Cutler and Mr. Mayers left the hearing room.)

The CHAIRMAN. I would ask the counsel for the subcommittee to

present a few questions to the NBC representative.

TESTIMONY OF HOWARD MONDERER, REPRESENTATIVE FOR NBC

Mr. MANELLI. Mr. Monderer, you stated you were here representing

NBC.

Mr. MONDERER. That is correct.

Mr. MANELLI. Would you state for the record briefly who authorized

you to appear here and the circumstances under which you have

appeared?

Mr. MONDERER. I was authorized to appear here by the vice president and general counsel of NBC, Corydon B. Dunham, to whom I report and I assume that he was authorized by Mr. Goodman.

Mr. MANELLI. You heard, I trust, the statement the chairman has

just given concerning the legislative purpose of this meeting and the

subpenas issued by the subcommittee.

Mr. MONDERER. Yes.
14

Mr. MANELLI. You did. The subpena served on NBC calls for the

production of several items which are detailed in the attachment to the

subpena. Would you advise the subcommittee as to whether you have

brought those items with you today?

Mr. MONDERER. Yes, sir, I have with me today all the material that

NBC had in response to that request.

Mr. MANELLI. And anything which you have not brought with you

today, is it accurate to state that the only reason you have not brought

any material is because NBC physically does not possess it?

Mr. MONDERER. NBC does not have any material which is called for

by the request which we have not submitted.

Mr. MANELLI. All right.

That is all the questions I have, Mr. Chairman.

The CHAIRMAN. Do you have any questions?

Mr. SPRINGER. Mr. Chairman, one question.

The CHAIRMAN. Mr. Springer.

Mr. SPRINGER. Counsel, the production in question here which is

entitled "Say Goodbye" was produced by Wolper Productions?

Mr. MONDERER. Yes, sir.

Mr. SPRINGER. NBC has no objection to Wolper Productions producing those for this committee?

Mr. MONDERER. I don't know, sir, whether we have any right to

object.

Mr. SPRINGER. I am asking you if you do object.

Now the reason I ask that, Counsel, you are a lawyer. They are under

contract to you, aren't they?

Mr. MONDERER. No, sir.

Mr. SPRINGER. They are not?

Mr. MONDERER. No.

Mr. SPRINGER. Would you explain your relation then?

Mr. MONDERER. I have also here in addition to the material called

for by the subpena a letter from Mr. Dunham to the chairman of this

committee which I think explains the relationship between the parties

in connection with this program. If I may just read it briefly, I think

it would help.

Mr. SPRINGER. Would you just outline it verbally as to what your

relation is?

Mr. MONDERER. Yes. The program was produced by Wolper Productions, Inc. An advertiser, the Quaker Oats Co., licensed the program directly from the producer and purchased time from the NBC

television network for broadcast of the program. Therefore, our contract is with actually the advertising agency for the advertiser and

the advertiser has a contract with Wolper. We did not have any contract directly with Wolper.

Mr. SPRINGER. That was done with Quaker Oats?

Mr. MONDERER. Yes.

Mr. SPRINGER. And your contract with Quaker Oats only had to do

with putting the program on the network?

Mr. MONDERER. That is correct.

Mr. PICKLE. I have a question, Mr. Chairman.

The CHAIRMAN. Mr. Pickle.
15

Mr. PICKLE. Counsel, I don't want you to go into any detail but I

must confess an ignorance about the program "Say Goodbye." What

was the essence of the program?

Mr. MONDERER. It was a program which I guess speaks for itself.

Essentially it talked about the disappearance or possible disappearance of certain wild species of animals.

Mr. PICKLE. What would be the position of NBC if you had contracted directly for this production and not gone through an advertising agency? Would you comply with this subpena?

Mr. MONDERER. I honestly cannot answer that question for the company.

Mr. PICKLE. The inference by your appearance here today and your

willingness to turn over to us all the facts and figures and information

you have on this broadcast is an indication to me that NBC feels that

this subpena is proper and that you are complying with it and that

this would be so whether you are dealing between the advertising

agency and the network or whether you are dealing directly in a program produced by the network.

Mr. MONDERER. I think, sir that I really must speak only as a lawyer and not as a representative of NBC. Each of these questions is

often judged on the particular facts of the situation, and based upon

our relationship to this program and these facts we do not object to

the subpena or to complying with the subpena.

Mr. PICKLE. You are addressing yourself only to the particular

arrangements made as you have described them.

Mr. MONDERER. And the content of the program and the circumstances of the program.

Mr. SHOUP. Counsel, you said that there were some parts of the

subpena that you were unable to comply with, am I correct?

Mr. MONDERER. Well, we have complied with the entire subpena,

to the extent it calls for material not supplied, that was material

which we did not have.

Mr. SHOUP. Would you, for me and for the record, tell us which you

have supplied us with?

Mr. MONDERER. Yes, sir. That is also referred to in Mr. Dunham's

letter to the chairman, but if I may just review the items.

With regard to items 1 and 2, a 16-millimeter print of the program

itself is here with me and is being delivered to you as is the transcript

of the program. NBC has no other film, workprint, outtake, sound

tape recording, written script or transcript prepared, obtained or

utilized in connection with the preparation and/or presentation of the

program.

With regard to item 3, NBC has no contract or licensing agreement

with Wolper Productions, Inc. The program was supplied to NBC by

the advertiser under a facilities contract between NBC and Ad Com,

Inc., the advertising agency representing the Quaker Oats Co. NBC

was not a party to and did not participate in such arrangements as

may have been made between Wolper Productions, Inc., on the one

hand and the advertiser on the other.

With regard to items 4 and 5, NBC made no disbursements, whether

money, things of value or legal consideration of any kind to any indi-
16

vidual appearing in the program and/or filmed or recorded in connection with its preparation.

Mr. SPRINGER. Mr. Chairman, I ask unanimous consent that Mr.

Dunham's letter be inserted in the record at this point.

The CHAIRMAN. Without objection it will be done.

( See Appendix A, p. 151.)

Mr. BLANTON. Mr. Chairman.

The CHAIRMAN. Yes, Mr. Blanton.

Mr. BLANTON. Now we have almost directly asked this question

but for the record will you so state that NBC took this film in its entirety without cutting, splicing or changing as received from Wolper

Productions, Inc., or Quaker Oats and did not change the film or add

any insertions and broadcast it as such?

Mr. MONDERER. We broadcast the program as supplied by the Wolper Productions • yes, sir.

Mr. BLANTON:With absolutely no change.

Mr. MONDERER. No change.

Mr. BLANTON. I just wanted to establish that for the record.

The CHAIRMAN. Mr. Springer.

Mr. SPRINGER. Are you in NBC?

Mr. MONDERER. Yes; I am an employee of NBC.

Mr. SPRINGER. Let me ask you this solely so that the record is clear

on it. Does NBC make any attempt on its own to determine whether

or not a program which is sold to them by a company is factually

accurate?

Mr. MONDERER. We have a review procedure which was followed in

this instance and which is referred to in one or two of the documents

which I am supplying you with today. That review procedure does

not involve knowledge of where everything comes from or the sequence in which things are placed or a lot of other details. We do

review the program for its acceptability. Any questions which might

appear to us we of course raise.

Mr. SPRINGER. What is your criteria, so to speak, for accepting a

film?

Mr. MONDERER. We have a code of broadcast standards of our own

in addition to that of the National Association of Broadcasters which

we follow as well as internal policy directives and memoranda which

might apply to the particular program. I could supply some of that

material to you.

Mr. SPRINGER. Can you supply what your criteria is for

acceptability?

Mr. MONDERER. The general criteria; yes.

Mr. SPRINGER. Is that in those documents?

Mr. MONDERER. No, it is-not.

Mr. SPRINGER. Would you supply that for the record?

Mr. MONDERER. Yes, sir.

Mr. SPRINGER. To be placed at this point in the record, Mr.

Chairman.

The CHAIRMAN. Without objection.

( See Appendix B, p. 193.)

Mr. SPRINGER. Just to go a little further, because I can see what

NBC's position is in that, you have accepted a program and you have

gone through a certain procedure and I would take it that NBC's posi-

•
17

tion as of this time is that it has no further responsibility. One of the

things which I am sure will arise in this hearing is what is the responsibility when a program is put on, just how far does that responsibility

reach. We probably will want to come to some determination of what

its responsibility is.

I take it that at this point NBC's position probably is that beyond

the review which you give to it under the code and under your own

criteria you have no further responsibility of the program.

Mr. MONDERER. I cannot accept that. We obviously do assume a,

responsibility for the programing and we desire it to be the best possible programing there can be.

Mr. SPRINGER. I understand that, but what I am trying to find out

is that when a program is presented and you go through your review

under the code, we will say, of broadcasting generally and under your

own program you say of acceptability that you have no further responsibility for the program after that determination has been made.

Mr. MONDERER. Well, Representative Springer, we do the best we

can and I don't like to say we then have no further responsibility.

Mr. SPRINGER. Let me pin it down. Since you are a lawyer and I am,

too, it would be better to put it this way. You do not assume responsibility for the factual accuracy of that program?

Mr. MONDERER. To the extent that it does not appear at the review

procedure that the program is factually inaccurate, I suppose that

would be the case.

Mr. SPRINGER. All right. Thank you.

Mr. BLANTON. Mr. Chairman, I have just one other question.

The CHAIRMAN. All right.

Mr. BLANTON. On the acceptability definition you don't have to

worry about the salability because you already have the spot sold,

but is acceptability the only real criteria that you use in supposedly a

factual presentation to the public? I mean Donald Duck is acceptable

to the public.

Mr. MONDERER. No, sir; acceptability is a broad word.

Mr. BLANTON. Would you mind defining acceptability in this case?

Mr. MONDERER. I would prefer to give you a copy of our broadcast

standards which would define acceptability.

Mr. BLANTON. Your broadcast standards specifically define acceptability?

MT. MONDERER. Yes.

Mr. BLANTON. And acceptability is the only criteria you use; not

factual, just acceptability?

Mr. MONDERER. I think that there are many things subsumed under

the idea of acceptability and that would include many things; of

interest to the public, for example, would be one.

Mr. BLANTON. Public interest? I am asking specifically is factuality

considered in acceptability? Accuracy, if you prefer.

Mr. MONDERER. Yes. I believe that if it appeared to us that the program was materially inaccurate, significantly inaccurate, and purported to be a factual discussion of a particular event; yes.

Mr. BLANTON. Do you have environmental or biological experts that

review a film such as this to determine the factuality of whether it

really is factual that these species are becoming extinct?
18

Mr. MONDERER. I cannot answer that question. I don't know the

answer.

Mr. BLANTON. In order to really get to the factuality of it, in reality

you would have to have someone that has some knowledge of whether

these species are really becoming extinct and why, would you not, if

that is the content of the film? Mind you, I have not seen the film.

Mr. MONDERER. I really don't know enough about our review procedure to answer that question, sir. These are questions which I am

not qualified to answer.

Mr. BLANTON. Mr. Chairman, I would like to suggest for the record

if we are going to go into this in depth about the responsibility of

broadcasters on factuality that we do reserve the right to call witnesses

from the review board, so to speak, or other broadcasters' review

boards to establish if in reality these broadcasts are examined for

factuality in a reasonably acceptable manner of review of facts.

The CHAIRMAN. I would say to the gentleman whatever is necessary

to get to the facts that we certainly will utilize every method that we

can, and if that is part of it that would be, done.

Mr. BLANTON. I have one other auestion on acceptability.

Now as I say, the salability is thrown out the window, NBC had

absolutely no worry about that because it was already bought, packaged and paid for. So how much time was expended in the review, so

to speak, for acceptability? I mean was it shown to one person, two

persons, 10 people, or how many?

Mr. MONDERER. I don't know.

Mr. BLANTON. Was not in reality one of the major features in reviewing the film to examine the time element to see if it fitted the time

slots bought and paid for rather than the content of the film?

Mr. MONDERER. I would say, sir, that the producer of the program

was probably knowledgeable enough to have timed the program accurately and I would think that that problem is probably not very

significant.

Mr. BLANTON. In other words, you don't think that a minute or two

leeway on NBC's time would have been important?

Mr. MONDERER. No. What I meant to say was that I would guess

that the person reviewing a program would expect that a producer

of the experience of Mr. Wolper would have produced the program to

fit within the time limits and he would not expect to find the program varied from those time limits, and therefore probably he spent

very little effort on timing the program. I was directing myself to

your comment that a major part of his review was directed to timing.

I don't think that is true.

Mr. BLANTON. Well, you and I both know that we are talking about

timing on major networks where a half a minute is loss of dollars.

Mr. MONDERER. No; I believe time is quite important but it is so

usual for a producer to bring in a program that is appropriately

timed. I don't think that the reviewer would have spent much effort

in checking that fact, he would have spent his time on other things.

Mr. BLANTON. One other question which you have more or less refused to answer. Is your appearance here at the supplying of the

material here an indication that NBC does approve of our right to

do this generally or is this a specific case in NBC's minds?
Mr. MONDERER. Sir, when we were served the subpena we were advised that a personal appearance by Mr. Goodman was not necessary.

The question then came up as to how to convey to this committee the

documents in response to the subpena. After discussion with committee

counsel it was decided that the documents could be transmitted to me

here in Washington and that I could bring the documents and the

film to the committee, and that is how I am here. I don't think it indicates any more or less than that.

Mr. BLANTON. Are you a regular employed or retained counsel for

NBC in Washington?

Mr. MONDERER. Yes, I am.

Mr. BLANTON. I have no further questions, Mr. Chairman.

Mr. SPRINGER. Just one further question, Mr. Chairman.

How many people were on the review board of this particular

program?

Mr. MONDERER. I don't know the answer to that, sir. These facts

which you are requesting of me are beyond my personal knowledge.

Mr. SPRINGER. Could you tell the committee who is responsible in

the organization for that review?

Mr. MONDERER. Yes, sir. The gentleman who was responsible generally for the acceptability of programing is a gentleman named

Herminio Traviesas. I could supply his precise title for the record.

Mr. SPRINGER. That is all right. He is in New York?

Mr. MONDERER. Yes.

Mr. SPRINGER. New York City. All right.

Thank you.

The CHAIRMAN. Any further questions?

Counsel, do you have any further questions?

Mr. MANELLI. No, sir.

The CHAIRMAN. All right. I want to thank you very kindly for

coming and cooperating with us. I think you have done what you

were supposed to do in your organization and I want to express our

appreciation.

Thank you very much.

Mr. MONDERER. Thank you.

The CHAIRMAN. Turn that film and material over to the counsel.

They will be returned.

Thank you.

Would you briefly explain what you presented to the counsel here

for the record.

Mr. MONDERER. Yes, sir. I believe they are covered by Mr. Dunham's

letter but they include the film of the program itself, a transcript of

the program and several items of correspondence between NBC and

Wolper Productions.

Mr. SPRINGER. Mr. Chairman, I move that that be inserted in the

record at this point.

The CHAIRMAN. Without objection.

(See Appendix A, p. 151.)

Mr. SPRINGER. They did produce a film which purports to be the

program.

Mr. MONDERER. The program itself.

The CHAIRMAN. Thank you again.
20

Mr. MONDERER. Yes, sir.

The CHAIRMAN. Mr. Broder, would you ask the three gentlemen

from CBS to return.

Would you again identify yourself for the record and your official

position with CBS.

Mr. APPEL. I am John D. Appel, deputy general counsel, Columbia

Broadcasting System, Inc.

The CHAIRMAN. I will ask the counsel for the committee to ask any

questions that he might have at this time.

TESTIMONY OF JOHN D. APPEL, LLOYD N. CUTLER, AND DANIEL K.

MAYERS, WILMER, CUTLER & PICKERING, WASHINGTON, D.C.,

COUNSEL FOR COLUMBIA BROADCASTING SYSTEM, INC.

Mr. MANELLI. Mr. Appel, would you state briefly for the record the

circumstances of your authorization to appear here for CBS today?

Mr. APPEL. The subpena of the subcommittee was served on Frank

Stanton, president of CBS, and the subpena recites that personal appearance is not required, and, therefore, I appear here as counsel for

CBS as a result of the subpena having been served on the president

of CBS.

Mr. MANELLI. By whose directions? Who immediately above you

has authorized your appearance?

Mr. APPEL. I am authorized to be here by CBS, Inc., as a corporation and by Frank Stanton as its president.

Mr. MANELLI. For the record, you were here previously when the

chairman delivered his opening statement setting forth the legislative

purpose for this meeting and behind the subpena that was issued on

CBS.

Mr. APPEL. Yes, I was here when the statement was read and I have

been handed a copy of the statement.

Mr. MANELLI. And you have also been provided with the copies of

the House rules and the House resolution that were referred to.

Mr. APPEL. Yes, I have.

Mr. MA NELLI. The subpena served on CBS calls for the production

of material which is outlined or described in detail in five paragraphs.

Taking the first paragraph—Do you have a copy of the subpena?

Mr. APPEL. I do.

Mr. MANELLI. Would you look at paragraph one and state for the

record whether you have brought with you the materials called for in

that paragraph one?

Mr. APPEL. Mr Manelli, CBS has a statement which I would like to

make at this time if I may. I would like to hand copies to the members

of the subcommittee and I believe you have a copy. I think this

responds to the question you just asked.

The CHAIRMAN. I think if you would just answer the question

because I don't believe any of us want to take the time now to read

this.

Mr. APPEL. I would like the opportunity to read this statement into

the record.

The CHAIRMAN. To read it into the record?
21

Mr. APPEL. Yes, indeed. I think it merits the subcommittee's attention just as your statement I think merited our attention when you

read it before.

The CHAIRMAN. Is there objection?

Go ahead.

Mr. APPEL. This statement was of course prepared in advance of our

receipt of your statement and I hope you will bear that in mind as I

read it. It is in the form of a letter to Chairman Staggers from Robert

V. Evans, vice president and general counsel of CBS.

I will hand a copy to the reporter as well. [Reading.]

Dear Mr. Chairman:

Columbia Broadcasting System, Inc., hereby delivers to the subcommittee films

and written transcripts of (1) its documentary entitled "The Selling of the

Pentagon" as broadcast on February 23 and March 23, 1971, and (2) the broadcast comments on that documentary immediately following its rebroadcast on

March 23, 1971. These materials are furnished voluntarily and not in compliance

with the subpena dated April 7. CBS respectfully reserves its right to challenge

the validity of the subpena in its entirety.

It is our view that the wide-ranging demands of the subcommittee's April 7

subpena—for film, recordings, outtakes, transcripts, identifications of individuals, disbursements, and releases—raise fundamental constitutional issues as

to whether journalistic news judgments can be subjected to legislative surveillance. We believe that the Congress cannot constitutionally compel journalists

to produce such a wide range of materials.

With all respect for the rights and duties of the Congress, and with full recognition of the importance of the congressional power to investigate, we cannot

conceive of any legitimate legislative purpose to which the materials requested

would be relevant. The First Amendment is sweeping and explicit: it says that

"Congress shall make no law . . . abridging the freedom of speech, or of the

press."

Outtakes and other materials not broadcast are the television equivalent of a

newspaper reporter's notes. They are the "work papers" of the intimate, personalized profession of journalism. Journalists frequently make comprehensive records of what they see and hear, amassing more than will finally be reported.

Selectivity is an essential part of this winnowing process. The material may be

selected or passed over because of its relative significance compared to other

materials, because of judgments as to its accuracy, or because of considerations

related to the confidentiality of a source. As Clifton Daniel has remarked: "Discrimination is the very essence of the editing process. You must discriminate or

drown."

The final published or broadcast product represents a news organization's best

judgment of the truth. Truth, of course, is not the same to all men. Journalists

may differ with one another. They may differ with those whose conduct or views

they report. They may even differ with the Government as to whether the accounts they publish or broadcast are "true."

Indeed, the basic theory of the First Amendment is that there is no universal

standard of journalistic truth. In the Supreme Court's words: "Authoritative

interpretations of the First Amendment guarantees have consistently refused to

recognize an exception for any test of truth—whether administered by judges,

juries, or administrative officials—and especially one that puts the burden of

proving truth on the speaker." New York Times v. Suitt/van, 376 U.S. 254, at 271

(1964).

As Judge Learned Hand observed in United States v. Associated Press, 52 F.

Supp. 362, 372 ( S.D.N.Y. 1943) :

"[The newspaper] industry serves one of the most vital of all general interests: the dissemination of news from as many different sources, and with as

many different facets and colors as is possible. That interest is closely akin to, if

indeed it is not the same as, the interest protected by the First Amendment: it

presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this

is, and always will be, folly; but we have staked upon it our all.
22

"News is history; recent history, it is true, but veritable history, nevertheless;

and history is not total recall, but a deliberate pruning of, and calling from, the

flux of events. Were it possible by some magic telepathy to reproduce an occasion:

in all its particularity, all reproductions would be interchangeable; the public

could have no choice, provided that the process should be mechanically perfect.

But there is no such magic; and if there were, its result would be immeasurably

wearisome, and utterly fatuous. In the production of news every step involves

the conscious intervention of some news gatherer, and two accounts of the same

event will never be the same. Those who make up the first record—the reporters

on the spot—are themselves seldom first hand witnesses; they must take the

stories of others as their raw material, checking their veracity, eliminating their

irrelevancies, finally producing an ordered version which will evoke and retain

the reader's attention and convince him of its truth. And the report so prepared,

when sent to his superiors, they in turn 'edit,' before they send it out . . . ; a

process similar to the first. A personal impress is inevitable at every stage; it

gives its value to the dispatch, which without it would be unreadable."

A policy of requiring news organizations to submit reporters' notes to the

scrutiny of a Government body whenever someone makes a charge of distortion

would have a chilling effect upon the exercise of the First Amendment right to

gather and report the news. Reporters will take and preserve fewer notes, and

television news teams will record and retain less film, if everything they take

down is subject to the risk of Government scrutiny. And the quality and content

of news reports will undergo subtle but significant self-censorship if reporters

are warned in advance that their final product will be compared to the raw

material, and that they will be called to account for any discrepancies.

The threat posed by the Subcommittee's investigation may already be working

its chilling effect upon journalists throughout the land. As the Ninth Circuit

recently ruled in the landmark case of Caldwell v. United States, "It is not unreasonable to expect journalists everywhere to temper their reporting so as to

reduce the probability that they will be required to submit to interrogation.

The First Amendment guards against governmental action that induces such

self-censorship." 434 F. 2d 1081. 1086 (9th Cir. 1970) (cert. pending).

The Subcommittee has not yet supplied CBS with any explanation as to the

Subcommittee's legislative purpose in seeking the material called for by the

subpoena, any information regarding the nature of the resolution authorizing the

issuance of the subpoena, any statement of reasons for the issuance of the

subpoena, or any statement of the subject matter under inquiry by the Subcommittee, as requested by CBS in its letter to you dated and delivered to your

office on April 15.

The Subcommittee will doubtless disclaim any desire to deter the exercise of

First Amendment rights. It may say it is not concerned with "news judgment,"

but only with "falsification" or "distortion." No journalist is perfect, and we may

make mistakes for which we can be fairly criticized. But Government investigations into allegations of "falsification" or "distortion," particularly when pressed

to the point of compelling production of the filmed and written notes compiled

by reporters, will inevitably restrict the free and full exercise of rights upon which

our constitutional system depends. As the Court of Appeals noted in Caldwell:

"The very concept of a free press requires that the news media be accorded a

measure of autonomy; that they should be free to pursue their own investigations to their own ends without fear of governmental interference; and that they

should be able to protect their investigative processes." Caldwell v. United States,

supra, at 1086.

We therefore earnestly urge that the demand to furnish outtakes and other

material not broadcast be reconsidered.

If further development of this vital issue is necessary, we will submit a more

detailed memorandum of law promptly after we receive a reply to our letter of

April 15.

Dated April 20, 1971.

As I said at the beginning, that letter of course was prepared before

the chairman's opening statement which we have just received and a

reasonable time after we have an opportunity to consider that statement we will undoubtedly have a further response to the subcommittee.

The CHAIRMAN. Did that answer your question?
23

MT. MANELLI. Yes, sir.

The CHAIRMAN. All right.

Mr. MANELLI. I would like to clarify it on the record if I could just

for a second.

This letter that you have just read, I take it it is correct to infer that

aside from the materials described in paragraph 1 CBS has not complied with the request for material contained in the rest of the subpena.

Mr. APPEL. Mr. Manelli, as our letter notes in the first paragraph we

are not supplying anything in compliance with the subpena but we are

supplying here today a film print of each of the two broadcasts and

a written transcript of "The Selling of the Pentagon."

Mr. MANELLI. What you have supplied is the material which is described in that paragraph regardless of whether or not you are intending to comply with the subpena.

Mr. APPEL. That is correct, but we do not concede at this point the

validity of the subpena for that material.

Mr. MANELLI. And you have not brought with you today any of

the material described in the remainder of the paragraphs here,

2 through 5?

Mr. APPEL. No, I have not.

Mr. MANELLI. You were authorized by CBS to appear here and to

make that statement that you just delivered here, I take it.

Mr. APPEL. Yes sir.

Mr. MANELLI. And it is CBS' intention not to comply with any of

the subpena, granting that you have produced material which is called

for in paragraph 1 but your intention in supplying that is not to comply with the subpena or to concede its legality?

Mr. APPEL. This, of course, was our intention formulated before we

appeared here today. I do think that we will want to have the opportunity to study the subcommittee's statement which I think amounts,

among other things, to a reply to our April 15 letter, and I think it is

likely that we may have a further response to the subcommittee after

we do that.

Mr. MANELLI. For the record then, the chairman's opening statement is, you will concede, in the nature of a response to your April

15 letter?

Mr. APPEL. I think it would be unfair to the chairman and the subcommittee to attempt to comment on its obviously carefully prepared

statement on the basis of having it in my hands for a few minutes, so I

think I would rather not characterize it at this point.

Mr. MANELLI. I just wanted to clarify this. The letter seemingly

asks for a reply to a letter of April 15. Now is it your position that you

still require such a reply, or do you consider that this opening statement addresses the concerns you have put into this letter?

Mr. APPEL. I am happy to take that as the subcommittee's reply to

our letter.

Mr. MANELLI. I would just ask, Mr. Chairman, that the representatives or Mr. Appel specifically be asked to supply for the record a detailed response to the chairman's opening statement with whatever

legal authority he cares to draw to the attention of the subcommittee

for the support of the CBS position that is being taken here.

The CHAIRMAN. What time limit? I think we should have a time

limit.
24

Mr. MANELLI. Presumably before reaching a decision to defy this

subpena the network had carefully considered the legal precedents

involved so I would think that it would not be a great length of time

that would be required to reduce this simply to writing and submit it.

I will ask Mr. Appel.

Mr. APPEL. We would, of course, be happy to supply a further statement to the subcommittee. We would like to have a period of 10 days

to do that if that is agreeable with the subcommittee.

I think I should note in passing Mr. Mane11 i's use of the word

"defy." I don't think it is CBS's intention to defy the subcommittee

or the Congress, but I do think we are disagreeing with the issuance

of this subpena.

The CHAIRMAN. You didn't comply.

Mr. APPEL. No, sir; we did not.

The CHAIRMAN. That could be taken for a defiance or anything you

want to take it for, but you didn't comply. Let the record show you

did not comply.

Mr. APPEL. Indeed that is true.

The CHAIRMAN. Yes, sir.

Mr. APPEL. I think I should also note that we have asked the subcommittee to reconsider the issuance of the subpena for the reasons

we have stated, and we hope that the statement that we have given

will have some persuasive value to the subcommittee.

The CHAIRMAN. I think 10 days would be a reasonable time for you

to have that in or earlier, if possible.

Is that agreeable with the rest of the subcommittee?

MT. SPRINGER. Yes.

The CHAIRMAN. All right.

Any further questions?

Mr. APPEL. Mr. Chairman, if I may 

Mr. MANELLI. We might just perhaps give the date so that we have

that for the record. I don't know what 10 days from today would be.

Mr. MAYERS. The 30th.

Mr. MANELLI. That is all I have.

(The letter was subsequently received by the subcommittee. See

Appendix C, p. 223.)

Mr. APPEL. Mr. Chairman, may I note for the record that CBS did

not request that this hearing be held in executive session, that CBS

did not understand the reason for so handling it, that CBS would

have no objection to holding this session as a public hearing, and

finally that we would like to request a transcript of the hearing today

to be supplied to us for our use in replying to the subcommittee.

The CHAIRMAN. I see no reason why you should not have it. I might

say the reason for the executive session was voted on by this committee to receive this material in executive session. This is not a hearing because you are not the true representatives that we want before

this committee if we have a hearing. We would want the main principals and they will be entitled to be heard. This is only preliminary

and that is the only reason it is in executive session. We intend for all

of our hearings to be open and above so the press will be here.

Mr. APPEL. Yes, Mr. Chairman.
25

I will now hand to Mr. Manelli the carton of materials that the

letter describes.

The CHAIRMAN. You can give them to Mr. Broder at the desk.

Mr. SPRINGER. Mr. Chairman, can we get identification in the record

of what has been handed to the committee?

Mr. APPEL. I believe it is described, sir, in the first paragraph of

the letter.

Mr. SPRINGER. All right. That is all that has been supplied?

Mr. APPEL. Yes, sir.

Mr. SPRINGER. That is all under the subpena that your have

supplied.

Mr. APPEL. Of the materials described in the subpena, those are the

only ones that we have supplied.

Mr. SPRINGER. Now I note on page 5 that Mr. Robert V. Evans' name

is signed "per W."

r. APPEL. No. If I may say, that is "per J. A.," my scribbled

initials. I signed this with the authority of Mr. Evans; he was in Los

Angeles yesterday and was not present in New York to sign it.

The CHAIRMAN. So that you signed this and you did it with Mr.

Evans' authority.

Mr. APPEL. With his express authority.

Mr. SPRINGER. Mr. Chairman, I ask unanimous consent that this

letter to you signed by Robert V. Evans per JA, representing John

D. Appel, general counsel of CBS, be placed in the record.

The CHAIRMAN. Without objection it shall be so ordered.

(See Appendix D, p. 233.)

Mr. SPRINGER. I want to be sure there is no misunderstanding, Mr.

Appel. In this hearing you speak individually for Frank Stanton and

for CBS Corp.

Mr. APPEL. That is true. I come here as counsel to speak for CBS,

Inc., and for Dr. Stanton, its president.

Mr. SPRINGER. From what you have said I understand that Frank

Stanton as president and CBS Corp. refuses to supply this committee

the remainder of the demands contained in the subpena.

Mr. APPEL. Based on the information we had prior to attending

today that indeed was our position, sir. As I mentioned before, after

we have had a chance to study the subcommittee's statement we may

have a further response.

Mr. SPRINGER. Your statement then, Mr. Counsel, at this time is

equivocal, is that correct?

Mr. APPEL. I didn't think of it that way, sir.

Mr. SPRINGER. Well, is it?

Mr. APPEL. I don't think so.

Mr. CUTLER. May I respond to that?

Mr. SPRINGER. Yes.

Identify yourself.

Mr. CUTLER. I am Lloyd Cutler and our firm is acting as counsel to

CBS in this matter.

I don't think the statement is equivocal. The statement is an expression, I think, an unequivocal statement returned to you on the due

date of this subpena that based upon the lack of information we had
26

as to the subcommittee's purposes and the relevance of the material

requested to those purposes CBS challenged the authority of the committee to issue the subpena, presented its arguments, and asked the

committee to reconsider.

This morning you presented to us a thoughtful 13 or 14 page statement in response to our letter of inquiry. We think that statement deserves the careful study by us that you and your staff undoubtedly

put into it and we want to make a further response based on that

statement.

I am not implying, Mr. Springer, that our response will be any different than the response we made now nor can I say to you that it

won't be a different response. We want to study what you have said

and conclude as fairly and objectively as we can in the light of the

relevant precedents whether the committee has set forth a valid basis

for the subpena under the Supreme Court and other decisions interpreted in the First Amendment and the Fifth Amendment in this area.

Mr. SPRINGER. Mr. Cutler, all you are saying today is that you have

not brought the instruments demanded in the subpena with you today.

Mr. CUTLER. That is correct.

Mr. SPRINGER. You are not saying today that you will not produce

those documents.

Mr. CUTLER. We are not saying today that we will or will not produce those documents after we make the further study of the material

you furnished us today. I think it would be contemptuous of the committee if we did not make a careful study of what you have said and

give our legal advice to CBS as to whether or not in the light of what

you have said we are obliged to comply with any other portion of this

subpena.

Mr. SPRINGER. All right. Let's pin this down to an answer of "Yes" or

"No." You are not saying today that you will or you will not produce

the demands set out in that subpena which have not been produced

today, is that correct?

Mr. CUTLER. I am unable to state until we have studied 

Mr. SPRINGER. Yes or No?

Mr. CUTLER. The answer is I cannot give you a "Yes" or a "No."

Under all the applicable legal precedents we must study the statement

of justification the committee has made and determine whether in the

light of that we regard CBS as obliged in our opinion to respond

to any other part of this subpena.

Mr. SPRINGER. What you are saying though, Mr. Cutler, is you

don't know today whether you will or you won't produce those

documents.

Mr. CUTLER. We cannot tell you today.

Mr. SPRINGER. All right.

Mr. CUTLER. But I do not wish to create any implication that you

should expect that we will. We don't know. We must study what you

have said. We have concluded that on the basis of what you presented

up to today you have not made a valid basis for demanding the

documents.

Mr. SPRINGER. I will let the record stand that you have not produced them and I will also let the record stand as to whether you say

you will or won't.
27

Mr. CUTLER. Right.

Mr. SPRINGER. Now, Mr. Appel, are you acquainted with "Project

Nassau"?

Mr. APPEL. I am certainly acquainted with the hearings conducted

by and the report of the subcommittee on the subject of "Project

Nassau."

Mr. SPRINGER. You are general counsel now?

Mr. APPEL. I am not general counsel. I am deputy general counsel

and I held that same position when this subcommittee held the hearings on "Project Nassau."

Mr. SPRINGER. We served a subpena on CBS at that time. Did they

produce the instruments?

Mr. APPEL. A great deal of material was indeed supplied in response to that subpoena.

The CHAIRMAN. Was all of the material called for in this subpena

supplied?

Mr. APPEL. I believe that it was.

The CHAIRMAN. I think so.

Mr. SPRINGER. Mr. Counsel, based upon that precedent which called

for exactly the same material, and I may say that you produced it on

that wall from that door double in height to that wall back there,

that was the material in cases, cans and cardboard boxes—in fact it

was so great that the committee could not even analyze all of it. Are you

saying that in this program your position is any different than it was

on "Project Nassau"?

Mr. APPEL. I think I would prefer, Mr. Springer, to let our statement speak for itself. I will take this opportunity though since you

have raised the question of "Project Nassau" to repeat the request that

we have made to the staff of the subcommittee for the return of the

material that we had supplied under that subpena.

Mr. SPRINGER. Would the reporter read the answer.

(The answer was read by the reporter.)

Mr. SPRINGER. Mr. Chairman, that is not responsive to my question.

Would you read my question, please.

(The question was read by the reporter.)

Mr. APPEL. I think I can repeat that I would like to let the statement that we have just supplied stand for itself as the statement of

CBS's position. I would also note that I am not here as a witness but

as counsel and I am not here to testify on matters of CBS policy beyond those that were embodied in the statement that I supplied.

Mr. CUTLER. Mr. Springer, if I could just add briefly to that the socalled precedent of "Project Nassau" is something referred to in the

chairman's statement and we would like to respond to that as part of

our response to the chairman's statement. I would only add the fact

that a witness elects to deliver material requested under one subpena

does not mean that he has conceded the legality of all similar subpenas

and is barred from challenging a subsequent subpena under what he

may regard as quite different circumstances. You can comply with a

subpena the legality of which you don't agree with.

Mr. SPRINGER. Let's just make the record clear. CBS did not challenge this committee and produced all the documents we requested in

that subpena, did it not?

62-142 0-71----3
28

Mr. APPEL. I think it is true to say that we produced the material.

As to what challenge we may have made to the subpena at the time,

I don't think I have enough of a recollection to state that today.

Mr. CUTLER. I think I should add for the record, sir, that CBS has

challenged before the right of the Federal Communications Commission and our arguments would extend to any other governmental body

to demand outtakes of news programs actually broadcast.

Mr. SPRINGER. Counsel, in this letter I see no Supreme Court decisions or other decisions in which you cite TV and its applicability.

Mr. CUTLER. We will be happy to deal with that point in our response, Mr. Springer. There are Supreme Court decisions, as I am

sure you know, stating that the First Amendment does apply to broadcast news.

Mr. SPRINGER. Strangely enough not in this brief. I think you want

it in this letter.

Mr. CUTLER. If the committee's position is that there is a First

Amendment distinction under these circumstances between a newspaper and a television station, we will deal with that in our response.

Mr. SPRINGER. Mr. Counsel, did you read the speech of Malcolm

Muggeridge before the Society for American Newspaper Editors last

Friday?

Mr. APPEL. No, sir.

Mr. SPRINGER. One of the great speeches probably in the last 25

years. In two paragraphs of his speech he described what he saw in

New York City when he was walking down the street. He stopped to

ask what was going on. Here were a bunch of long haired people

standing around with signs and it was about 9 o'clock at night. There

were three or four policemen and there was also a Black Maria. He

asked what was going on and they said it was a demonstration. Up

drove a truck and they turned on the lights and the sound equipment

and there was a demonstration in the street. The two policemen who

were there grabbed three of the demonstrators and put them in the

Black Maria and drove away. The truck turned off the lights and the

sound equipment, put it back in the truck and drove off.

Does this give you some idea of what we are trying to do ?

Mr. APPEL. I think CBS would be better advised to derive an idea of

what you are trying to do from the formal statement that you have

made. It is difficult for me to restrain myself from commenting on

matters that interest me, but I don't think my capacity before you here

today is such that I should attempt to comment on your description

of that speech.

Mr. SPRINGER. Mr. Counsel, I am trying to refresh your recollection

to give you some idea when you get out of that New York atmosphere

of what does take place.

Eighteen months ago a group drove up in front of a Congressman's

house in the suburbs, five men, and sat in the car. This was witnessed.

They sat there for a half an hour and the Congressman's neighbor

was on the verge of calling the police because it was unusual for five

men to be parked on a closed street which was open only at one end.

About a half an hour later up drove one of the stations in Washington

with a sound and film truck. Those five men put on a demonstration

in front of that Congressman's house, they turned the lights on and

the sound. It lasted about 3 or 4 minutes. They turned the lights off,
•

29

put the sound equipment back in the truck and the five men drove off

and the truck drove back to the station. That night it went on TV.

Are you getting a better idea of what we are talking about in this

kind of an investigation?

Mr. CUTLER. Mr. Springer, if I can reply to that, I would like to

say I think I am—and I think 1. understand you to be—saying that the

purpose of your inquiry is to determine why television news reporters

select particular items to be broadcast and that adds to our concern

about the effect of this hearing and this inquiry upon the First Amendment rights of journalists.

The CHAIRMAN. You got the wrong impression because it does not

say that in the statement I made.

Mr. CITTLER. I am referring to what Mr. Springer said.

The CHAIRMAN. That is not in my statement I just made. I think

that we would be well advised to have those things before us. I think

that you are in contempt of Congress now but I would say we will give

you 10 days in order to answer this.

Do you have any questions?

Mr. MANELLI. Just one short statement, Mr. Chairman.

As to the statement to not having an explanation of the legislative

purpose, I note that the subpena was served on April 7, that the news

media on April 8 broadcast the decision of CBS not to comply, and

that it was not until April 15 when Congress was in recess that the

letter to which Mr. Cutler refers was hand delivered to our office. That

would be on April 15, so that the inquiry into the legislative purpose of

the subpena did not come until the very end almost of the period provided in the subpena. I think that should be made a matter of record.

The CHAIRMAN. Any further questions?

Mr. MANELLI. No.

Mr. SPRINGER. Just one further question.

When you read Malcolm Muggeridge's statement in which he created

the word "newzak," he points out in there that what actually television

is doing is creating imagery. The question which he raised in his speech

in that part was whether or not this is true news, whether this is truthful news.

I only point out to you two examples, of which we could find hundreds of the same thing, whether you are actually disseminating news

and especially in those where you have controversial subjects whether

you are doing news documentaries or whether you are in fact creating

imagery.

This gives us pause for a lot of thinking which has nothing to do with

newspapers, and you seem to be under the impression that you are

some kind of a newspaper. You are not an electronic newspaper, you

are a public regulated industry. As general counsel you should tell

your people not only are you publicly regulated, you are publicly regulated in the public interest. •

May I say that if we were to rewrite the Communications Act today

that sentence would be in there, that in all matters of a controversial

nature it must be presented in balance and objectively. That is in the

Public Broadcasting Act. Now we put that in 2 years ago to be sure that we were going to get around exactly what you are doing or were

doing, we think, in "The Selling of the Pentagon."
30

I think you ought to do some thinking as to what this committee is

trying to do in addition, we will say, to the refusal to produce the

instruments. I think you ought to do some thinking on what this committee is trying to do. We are not sitting here just because we want to

bring CBS in here before us, that is the last thing we have in mind.

What we are trying to do is be sure that we remedy some of these

things that we think are happening, and constitutionally we think we

have a right to do it.

Mr. APPEL. Mr. Springer, I would like to say that my unwillingness

to attempt to debate this subject with you now does not represent either

on my part or so far as I know on CBS's part a lack of concern for

the serious questions of what is truth, how truth is best reported and

what the public interest is in the area of the news reporter.

Mr. SPRINGER. Thank you, Mr. Chairman.

The CHAIRMAN. I want to say to you again that this statement here

contains what we want from you and what we expect from you, and

we give you 10 days.

Mr. APPEL. We appreciate that and we appreciate the care you and

the subcommittee put into what you believe and what we believe is

one of the very serious questions of our time.

The CHAIRMAN. Yes, sir.

I would say this to you: That if you read this carefully again I

think you will find the objective of what we are trying to get at, and

nonobjectives, because we have stated them very clearly. They don't

go off on different items this way or that way, they stay on the facts

of what we are trying to do and it all hinges upon this statement.

You mentioned the fact about the return of the materials. At the last

meeting we had instructed the subcommittee to return your materials,

and part of this has already been done as I understand. Some of it is

being boxed and getting ready to go, and in view of this hearing here

some may be held back, if it is relevant. But it will have to be relevant

to this.

Mr. APPEL. Will we receive some statement as to what is being held

by your counsel or otherwise?

The CHAIRMAN. Yes, sir. All of the film has been returned, has it

not?

Mr. MANELLI. The original negative of the film has been returned.

The CHAIRMAN. And the other things are being boxed, so you will

get all your materials unless there is something that is relevant here

and we need now.

I do want to thank you all for coming and giving us the benefit of

your views. I know you did the best you could for CBS in representing them. In the final stage it will have to be the officials themselves,

I am sure, that will have to answer the questions if there is going to be

anything further.

Mr. APPEL. Thank you, Mr. Chairman.

The CHAIRMAN. I say to you again that all we want is in this statement here.

Mr. APPEL. I can assure you we will give it the most careful study.

The CHAIRMAN. I am sure you will.

Mr. APPEL. Thank you.

(Whereupon, at 3 :04 p.m., the subcommittee adjourned, subject to

the call of the Chair.)
SUBPENAED MATERIAL RE CERTAIN TV NEWS

DOCUMENTARY PROGRAMS

WEDNESDAY, MAY 12, 1971

HOUSE OF REPRESENTATIVES,

STJBCOMMITTEE ON INVESTIGATIONS,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

W ashington, D .0 .

The subcommittee met, pursuant to notice, at 10 :45 a.m., in room

2322, Rayburn House Office Building, Hon. Harley 0. Staggers (chairman) presiding.

Present: Representatives Staggers, Springer, Pickle, Blanton, and

Shoup.

Staff members present: Daniel J. Manelli, Acting Chief Counsel.

The CHAIRMAN. The committee will come to order.

The purpose of the subcommittee hearing today is to receive testimony from Mr. Daniel Z. Henkin. Mr. Henkin is Assistant Secretary

of Defense for Public Affairs.

He was interviewed by CBS News during the preparation of the

documentary entitled "The Selling of the Pentagon." Parts of that

interview were incorporated into the final broadcast, which was televised nationally on February 23 and March 23, 1971.

Serious questions have been raised by Mr. Henkin, and others, concerning the manner in which his interview was presented over the

air by CBS.

This is a matter which has clear and obvious implications on the

adequacy of the present laws governing broadcasting. As such, it

falls within the jurisdictional concern of the House Commerce Committee and this subcommittee.

As most people probably know by this time, CBS News was quite

critical in its documentary of many of the public affairs activities of

the Department of Defense. I want to emphasize for the public record,

as I have tried very hard to do previously, that this subcommittee does

not propose to enter into the merits of that controversy.

For my own part, I hope that the Department of Defense will not hesitate to take any corrective actions which appear appropriate in

view of the issues raised by CBS in its documentary. But our legis- lative concern has nothing to do with the viewpoints expressed on

the program.

The subcommittee also contemplated receiving the testimony of Col,

John MacNeil. Colonel MacNeil delivered a public address in Peoria,

Ill., which was filmed by CBS News. Segments of this address were

also incorporated into the "Pentagon" documentary.

(31)
32

As in the case of Mr. Henkin's interview, serious questions have

been raised concerning the manner in which CBS chose to present

these excerpts from Colonel MacNeil's speech in its broadcast. But

Colonel MacNeil has recently filed a civil libel suit against CBS in the

U.S. District Court for the District of Columbia.

In order not to prejudice the rights of any of the parties involved

in this litigation, the subcommittee has deemed it inadvisable to have

Colonel MacNeil appear before us at this time.

He has been asked, however, to submit a sworn deposition relating

solely to those issues of concern to the subcommittee. This deposition

has been received and will be entered, without objection, into the record of these proceedings.

We have also received a short biographical statement concerning

Mr. Henkin and this will also, without objection, be entered into the

record.

(The statement referred to follows:)

DANIEL Z. HENKIN, ASSISTANT SECRETARY OF DEFENSE (PUBLIC AFFAIRS)

Daniel Z. Henkin was nominated as Assistant Secretary of Defense (Public

Affairs) by President Richard M. Nixon on April 30, 1969, confirmed by the

Senate on May 20, and sworn into office by Secretary of Defense Melvin R. Laird

on May 25.

Mr. Henkin, born in Washington, D.C., on May 10, 1923, attended public schools

in the nation's capital, and is a graduate of the University of California. He first

joined the staff of the Journal of the Armed Forces (then the Army-Navy Journal) in 1941, after working in the Washington office of the Buffalo Evening News.

During World WO II he enlisted and served as a Coast Guard Combat Correspondent coverin amphibious operations in the Pacific, including D-Day landings at Saipan, and the Philippines. He was separated from active duty as a Chief

Petty Officer.

Immediately following the war, from 1945 to 1948, he worked as a reporter on

the Oakland ( California ) Tribune. In 1948 he rejoined the Journal of the Armed

Forces as Assistant Editor and later was appointed Editor.

On October 1, 1965, he joined the Department of Defense as Director of Operations in the Office of the Assistant Secretary of Defense for Public Affairs. On

March 15, 1967, Mr. Henkin was appointed Deputy Assistant Secretary of Defense for Public Affairs and served in this capacity until he was named Acting

Assistant Secretary of Defense for Public Affairs on January 21, 1969.

For his outstanding service to the Department of Defense for the period October, 1965, to January, 1969, Mr. Henkin was awarded the Secretary of Defense

Meritorious Civilian Service Medal.

Mr. Henkin is married to the former Hannah Ronen. They have three children—a son, Doron, and two daughters, Leora and Tamar. The family lives at

2306 Washington Avenue, Chevy Chase, Maryland.

The CHAIRMAN. Unless there is any objection, I will now ask counsel

to read Colonel Mac,Neil's deposition into the record.

Mr. MANELLI. The deposition reads as follows:

"I, John A. MacNeil, being first duly sworn on oath according to law,

depose and say that I make this statement at the request of the Subcommittee on Investigations of the Committee on Interstate and Foreign Commerce of the House of Representatives;

"That I am a colonel in the US. Marine Corps, on active duty, and

am the same Colonel MacNeil who was portrayed in the program,

'The Selling of the Pentagon,' as delivering remarks in Peoria, Ill.;

"That the entire seminar during which these remarks were a part,

was conducted during the period of May 4-15, 1970, and that the specific remarks quoted in the program were delivered on May 14, 1970;
33

"That a CBS camera crew spent 3 days at the seminar, recording

at least 4 hours of speaking sessions, in addition to conferring with

faculty members;

"That I understand a transcript of the address which, to the best of

my knowledge, is exactly as delivered by me on May 14, 1970, has

been supplied to the committee by the Industrial College of the Armed

Forces;

"That I would have no objection to all films and/or tape recording

or any other material pertinent to this seminar which is now in the

possession or under the control of Columbia Broadcasting System, Inc.

being made available to the subcommittee."

It is signed by John A. MacNeil, colonel, U.S. Marine Corps and

notarized on May 10, 1971.

The CHAIRMAN. Mr. Henkin, would you state for the record the

name of the gentleman with you?

Mr. HENKIN. I am pleased to introduce to you my military adviser,

Col. William M. Taylor, a native of Muncie, Ind., and a graduate of the

Indiana University School of Journalism.

The CHAIRMAN. Is this your legal counsel?

Mr. HENKIN. No, sir; he is not. I am here without legal counsel.

Colonel Taylor is my military adviser.

The CHAIRMAN. Will he be taking part in these proceedings?

Mr. HENKIN. Perhaps there may be some questions in which I might.

need his assistance.

The CHAIRMAN. Then if that is the case, I would have to have both

of you sworn.

Please rise and raise your right hand. Do you solemnly swear or affirm that the testimony you are about to give before this subcommittee

is the truth, the whole truth and nothing but the truth, so help you

God?

Mr. HENKIN. I do.

Colonel TAYLOR. I do.

The CHAIRMAN. Mr. Henkin, I understand you have a brief statement to make to this subcommittee. Would you please proceed.

TESTIMONY OF DANIEL Z. HENKIN, ASSISTANT SECRETARY OF DEFENSE (PUBLIC AFFAIRS) ; ACCOMPANIED BY LT. COL. WILLIAM

M. TAYLOR, EXECUTIVE ASSISTANT

Mr. HENKIN. Mr. Chairman, it is my pleasure to accept the invitation of the House Committee on Interstate and Foreign Commerce to

appear today to respond to questions you may have concerning network documentary practices.

With the committee's permission, I would also like to make a few

brief comments concerning the importance and integrity about the

handling of television news and information.

I would like at the outset to reiterate what I said earlier in response

to a communication I received from the distinguished Chairman of the

House Armed Services Committee concerning the CBS show, "The

Selling of the Pentagon."

I told him and I want to repeat today that the Pentagon is not for

sale, and not for sale either is the right of a free press to criticize the

Pentagon.
34

It is my deep personal conviction

'

shared by Secretary of Defense

Laird, that, as he recently told the American Newspaper Publishers

Association: "A strong, free country and a strong, free press go handin-hand."

In talking to the ANPA, Secretary Laird said:

We need to sit down and talk over together the problems of national security

news coverage which have arisen in the past decade or so. It is time for improved

professional contacts, contacts that candidly recognize past mistakes and seek

future understanding.

During recent months we in the Department of Defense have been

making special efforts to strengthen our lines of communication with

news organizations and also with schools of journalism throughout the

country. We will continue to do this.

If there are those, including some prominent members of the television news industry, who deprecate the importance and value of television news coverage to the American people, I am not one of them.

I have tried and I will continue to try, together with my associates,

to be as helpful as possible to all news organizations, including the

television networks, all of them.

This spirit of cooperation under the statement of public information principles issued by Secretary Laird on March 4, 1969, applies

also to local television stations throughout the country.

I want to express to this committee my resentment at allegations

which have been made by a television newsman impugning the integrity of local TV station management as it applies to relationships with

the Department of Defense.

Let me say, Mr. Chairman, that I have never questioned the integrity of CBS News. I have, however, questioned the professionalism

of the show, "The Selling of the Pentagon."

As a person who has spent his entire professional career in the news

business, either as a reporter or in government, I was disappointed

and concerned by the doctoring of words and the misrepresentations in

this particular show.

I want to repeat that CBS News had every right to inquire into the

public affairs activities of the Department of Defense and, indeed, it

was my responsibility to help provide the producer of this show

hundreds of man-hours of assistance during its 11 months of preparation, and I met my responsibility. '

I have said that I have never challenged the integrity of CBS News,

yet the program as shown indicates that I did. This resulted from the

fact that the producer decided to edit and distort some of my words

with the result that I was portrayed as having made an accusation.

It was, in fact, the producer who made the accusation by his doctoring

of my words.

If the narrator of this show has the privilege of 

criticizino•. 

the public

affairs activities of the Department of Defense, and he certainly has

and should have that privilege, then I think I have the privilege of

disagreeing with some of his views.

For example, the narrator of "The Selling of the Pentagon"

asserted:

Broadcasting in sound and vision will not prove to have contributed to the advancement of ideas or the education of man as much as the printed word.

As I look to the future and contemplate such possibilities as a synchronous television transmitter over the vast subcontinent of India,
35

broadcasting in sound and vision to the millions of now isolated people living there in illiteracy, I must disagree with the narrator's

conclusion.

Also, I do not agree with his assessment, particularly as I recall

such an illuminating and professional two-part news special as "The

Changing War in Indochina" that "our broadcasts have not improved, if anything their quality has declined."

The insights into the complexities of the situation in Indochina

which these two programs brought to millions of Americans, in my

view, do not square with the evaluation that "the tube has become

a trip, a national opiate, a babysitter who changes nothing, something

to iron by and to shave to and to doze over." This too is the judgment

of the narrator of "The Selling of the Pentagon."

In short, Mr. Chairman, I happen to place a high value on the virtually boundless significance and future potential of television news

and information programs.

I am not an attorney, but I do know that those who worked on the

show, "The Selling of the Pentagon," operated under the full privileges of the First.Amendment. The statement of its executive producer

that "television reporting doesn't operate under the provisions of the

First Amendment" to the contrary notwithstanding.

Among others, the president of CBS News, who is an attorney, has

made the point that although television stations are licensed, the rights

of the First Amendment should not be divisible between journalists

whose work comes out in ink and journalists whose work comes out

electronically.

I am certain that the members of this committee share with me an

unswerving belief in the sanctity of the First Amendment for all information media.

And I would think that the members of this committee also share

with me more confidence in the integrity of local television stations

than was expressed by a prominent CBS newsman in a recent panel

discussion.

This CBS newsman said that one of the tragedies of broadcasting,

and to quote, "It's not just broadcasting, it's journalism at the local

level," is that there is a "very handy" relationship between the Pentagon and local station managers. The allegation was made that at the

local TV station persons "would swallow the stories put out by the

Pentagon, whole."

Mr. Chairman, I believe in the integrity and value of televison news

coverage, both at the national level and at the local level. If there are

some people in the television news industry who don't share this view,

so be it.

I would add one closing thought. As I said at the beginning of

this statement, the right of a free press in a free society to criticize the

Department of Defense is vital to the strength of our Nation. These

are no idle words to us who serve in the Department of Defense.

The fact is that in the past "The Selling of the Pentagon" was

shown to our troops overseas. This is no longer possible because, at

the request of CBS, it has been necessary for us to ban its showing

to American servicemen and servicewomen outside the United States.

This, Mr. Chairman, concludes my brief remarks and I hope I may

be as responsive as possible to your questions and questions from members of the committee.
36

The CHAIRMAN. Mr. Henkin, I want to thank you very kindly.

At this time we will have questions from the counsel.

Mr. MANELLI. Would you state briefly for the record what your

duties and responsibilities are in your present position?

Mr. HENKIN. I am the Assistant Secretary of Defense for Public

Affairs. My responsibilities basically stated are to help provide to the

American public as much unclassified information as possible.

Mr. MANELLI. How long have you served in that capacity?

Mr. HENKIN. I have served in this capacity since January of 1969.

I have previously served as Deputy Assistant Secretary in the same

office and also as Director of Operations. This service dates back,

Mr. Manelli, to October 1,1965.

Mr. MANELLI. Do I correctly infer from the last paragraph in your

statement that the Department of Defense was itself showing the

Pentagon documentary overseas to the troops?

Mr. HENKIN. That is correct. We feel, Secretary Laird feels very

strongly, certainly all of us agree with him and I am sure the committee does too, that our servicemen and women overseas are entitled

to receive the same information that would be available to them as if

they were at home, and "The Selling of the Pentagon" was shown to

our troops in Vietnam.

Mr. MANELLI. You say that CBS has requested that you discontinue

these showings?

Mr. HENKIN. Yes, sir.

You should know that the troop information, internal information,

is not my responsibility. That responsibility belongs to the Assistant

Secretary of Defense for Manpower and Reserve Affairs and out

through the commands.

However, I have been informed that his office, the Office of Information for the Armed Forces, which is responsible for internal information, received a communication from the CBS official in their

syndications department advising us that this film was not to be shown

overseas to our troops, henceforth, until further notice.

Mr. MANELLI. Do you know when this request was made?

Mr. HENKIN. Wasn't it last week? I can provide for you, sir, if

you like, a copy of the letter we received.

Mr. MANELLI. Would you please do that?

Mr. HENKIN. I will do that for the record.

(The letter referred to follows:)

CBS TELEVISION NETWORK,

A DIVISION OF COLUMBIA BROADCASTING SYSTEM, INC.,

New York, N.Y., April 30, 1971.

RE THE SELLING OF THE PENTAGON.

Mr. ROBERT C. VINSON,

Chief, T.V. Division, Armed Forces Radio & Television Service,

Hollywood, Calif.

DEAR BOB: This will rescind authorization previously given to Armed Forces

Radio & Television Service to record and distribute the above program to overseas Armed Forces Television Stations. Please arrange to withdraw the program

from distribution effective immediately.

Regards.

Sincerely,

ELIZABETH P. WELLMAN,

Manager, Syndic,a,tion.
37

cc Miss Mary Valenzano, Office of Information for the Armed Forces OASD (M), Room 406, Pomponio Building, Arlington, Va.

Messrs. Daly, Kaiser.

Mr. MANELLI. What prearrangements took place between you and

CBS just prior to your interview with Mr. Mudd? How did you come

to b a part of this program?

Mr. HENKIN. I was aware, of course, that CBS had been working

for a long time on this show. At its outset, its producer visited me and I assured him that we would provide all feasible assistance, which

I believe we have done: more than 600 hours of assistance that we can

count. There are probably more.

He indicated to me that later on, as his research continued and to- ward the end of the show, he might like to interview me.

I said that would be fine, that I was prepared to answer any ques- tions, and arrangements were made for Mr. Roger Mudd to interview

me and he did.

MANELLI. There was just one interview?

Mr. HENKIN. The one interview on camera that is correct. This in- terview lasted approximately 40 minutes. I believe I answered 45 questions. To the best of my recollection, I did not answer any of

them with a "no comment" answer.

Mr. MANELLI. Do you recall the date of that interview?

Mr. HENKIN. It was, as I recall, September 23d.

Mr. MANELLI. Our understanding here is that you have a transcript

and a tape recording, both of the interview as it originally took place, is that correct?

Mr. HENKIN. That is correct.

Mr. MANELLI. Why? Was this standard operating procedure with interviews of that kind, or with all interviews?

Mr. HENKIN. Yes. Not with all interviews, but it is a standard pro- cedure for us when we appear on an electronic interview to have it taped for our records. We believe in an on-the-record administration

at the Pentagon.

After shows appear, newsmen often come to us and ask can they please listen, and we make that available.

Not long ago, subsequent I believe to the showing of "The Selling"—

I can't remember if it was subsequent, but in any case, Secretary Laird

was interviewed at the CBS offices here on M Street in connection with the show "The Changing War in Indochina."

I asked a CBS official if he would be kind enough to send me a tape of the full interview and he did. That is a normal professional rela- tionship which we have.

Mr. MANELLI. We asked your office previously if we could have a

copy of that tape recording and the transcript. Do you have that avail- able for us?

Mr. HENKIN. Yes, sir; I do. I have no objection at all to this com- mittee or anyone else having that.

Mr. MANELLI. Mr. Chairman, I would ask that we could receive those items for the record in these proceedings.

The CHAIRMAN. It shall be done and placed in the record at the

proper place.

(See Appendix E, p. 251.)
38

Mr. MANELLI. To your recollection was the interview filmed by CBS

from beginning to end?

Mr. HENKIN. I presume it was. At one point I recall that they had

run out of film. As I said, the interview extended approximately 40

minutes, using two cameras.

Mr. Mudd asked if I would be kind enough to wait until he put some

more film in. That was no problem. So we chatted for a few minutes

while they did that. But I presume that the whole interview was filmed

by CBS.

Mr. MANELLI. Do you happen to recall how many cameras were present in the room?

Mr. HENKIN. There were two cameras.

Mr. MANELLI. Did anybody make any statements, anybody from

CBS make any statement to you concerning use of reverse shots, cutaways, or anything of that general nature?

Mr. HENKIN. Not to me, sir, at all. Perhaps they may have discussed it with members of my staff. Very often in interviews when, of

course as you well know, they have one camera and one finishes an

interview, the person who is doing the interviewing may sit in a chair

and then they change the camera angles and he restates the questions.

That has happened to me many, many times, and at no time have I

had any problem with them. The questions that everybody asked on

these closeup shots have been the questions asked of me in the

interview.

Mr. MANELLI. The transcript of the original interview, at least what

appears to be such, has already been inserted in the Congressional

Record.

Comparing that with the script which we have received of the "Pentagon" show there are certain discrepancies that I would like to ask you

about in these questions and answers.

I think the second question carried on the "Pentagon" program

shows—let me backtrack a minute. The original version of that question reads as follows:

But aside from your meetings in which you disseminate information, what

about your public displays of military equipment at State Fairs, and Shopping

Centers, what purpose does that serve?

As the show was broadcast the words "but aside from your meetings in which you disseminate information" were deleted so that the

question then appears to be, "What about your public displays of military equipment at State fairs and shopping centers? What purpose

does that serve?"

The answer shown over the air appears to be the first sentence of

your original answer but that continues without a break, starting with

the words "I believe that the American public has a right to request

information."

It goes on about information about spending of funds, drugs, racial

problems, so forth. That was actually taken from a later question. I

just wondered if you had any idea as to why such a rearrangement

would be made?

Mr. HENKIN. Mr. Manelli, I have no idea as to why such rearrangements of words were made. I have found in my career in the Department of Defense that whenever I have been interviewed in the past,

there had been a high order of professionalism.

4
39

I 

I realize, of course, that all the words that one says must be edited.

have 

have 

no 

been in this news business long enough to know that. But I

made—put 

way to understand why a response to one question should be as a response to another question. So that where at one point in the interview I am discussing the matter of Soviet weapons, and the answer shows up in a discussion of State fairs. That troubles me.

Also what troubles me was the producer's decision—I presume it was his decision—to delete the words, "as one might say," when I was discussing with Mr. Mudd the matter of how the interview was set up. It was at this instance that by the deletion of these words and by the failure to run the next sentence, that CBS, by its editing, put me in an accusatory position with regard to CBS, and the allega- tion—the erroneous allegation—that I said they were staging this interview, when, in fact, I said very specifically that they were not staging this interview.

This myth—if I may continue just a moment—this myth persisted in the statement of the producer of the show in a later television panel show in New York City, where he again charged that I had made this alleqation. I had not made it. He made it.

Mr. MANELLI. The portion that comes just after the part about the shopping centers which was the first question I raised with you, ap- parently, is a continuation of that exchange.

Again there is a question from Mr. Mudd which in the original ver- sion reads:

Well, is that sort of information about the drug problem you have and the racial problem you have and the budget problems you have, is that the sort of information that gets passed out at State Fairs by sergeants who are standing next to rockets?

That question is carried verbatim in the final version of the broad- cast. Your answer originally was as follows:

No, I wouldn't limit that to sergeants standing next to any kind of exhibit. I knew—I thought we were discussing speeches and all.

The final sentence where you say you assumed that the discussion

was about speeches was also deleted. That was deleted from the broad- casts. Instead the language which follows is language which appears in a previous question, which reads, "Now there are those that con- tend that this is propaganda. I don't. I do not agree with this."

I will ask you the same question about this: Do you have any reason to—any opinion as to why they would take out your statement that you assumed the question was to be about speeches and that you

were not addressing—to the effect you were not addressing yourself

to shopping centers?

Mr. HENRI-N. Mr. Manelli, I have no way to know the machinations

that went into the doctoring of these words. I do know that they dis- torted, in my view, distorted the point I was trying to make.

In one of his questions, Mr. Mudd suggested that when we put out information about Soviet weapons development, we were trying to do this—we must be doing this to influence the budget.

I pointed out to him that last year the Defense budget was sub- mitted to the Congress in February and was not approved until the

end of December. Had I suppressed news because I was concerned

that some might misinterpret it as possibly trying to influence the
40

budget, which is not why we put out news—that discussion is what

was addressed with regard the word "propaganda."

So there was, as you have pointed out here—and I have an analysis

here if you would like that inserted in the record—how these shifts

in words were made. I think it is unprofessional to do that.

Mr. MANELLI. My last question just by way of clarification on this

staging issue: That exchange takes place after an interview with

Sergeant Demiter on the broadcast where he is discussing the issue

of staging. That interview directly abuts your statement which is

carried verbatim:

We are trying our best to provide information. There undoubtedly have been

times when certain actions have been staged. I think this is true of all TV news

coverage. After all this interview is being staged as one might say.

The soundtrack of the broadcast deletes "as one might say" and then

continues on with the very next statement which is by Mr. Mudd,

where he says, "How so?" And you continue "Props were set up,

arrangements were made. You and I just did not walk into this room

cold. Arrangements were made for it."

Mr. Mudd responded, "Well, we wanted to film in your offices

'

but

your people said 'Let's go to the studios.' So we didn't stage it." You

replied: 'No, I am not accusing you of staging it. I make no accusations at all."

Again the final word on the broadcast is Mr. Mudd's, but the original transcript shows the sentence and you have already indicated you

have no reason to know why that would not be carried.

Mr. HENKIN. Yes. To me I think it is significant. There was first

of all the doctoring of the answer and the deletion of the words, as

you point out, "as one might say." Then the failure to recognize in

any way, either by direct quote to me or indirect, but my direct quote

was "No I am not accusing you of staging it. I make no accusations

at So again I repeat it is CBS which has made the accusation,

not I.

Mr. MANELLI. The editing of "as one might say" right out of the

middle of that exchange really wouldn't save much time if you consider editing as a means of compressing an exchange? Probably, would

you say it could have been done for that purpose?

Mr. HENKIN. Possibly it might have been done for that purpose,

but I don't think one should save time on a television show or any show

to distort the meaning of a person's words.

Mr. MANELLI. Of course, it would have taken just a fraction of a

second to leave it in.

Mr. HENKm - Yes.

Mr. MANELLI. Mr. Chairman, I would ask that the analysis that Mr.

Henkin refers to that we have of the questions and answers be inserted

in the record.

The CHAIRMAN. Without objection, it shall be inserted.

(The material referred to follows:)
41

COMPARISCN OF CBS SCRIPT WITH ORIGINAL INTERVIEW

TOGETHER WITH 001115iTS PREVIOUSLY SUPPLIED BY MR, HENKIN

IN A LETTER TO HONORABLE ENARD HEBERT DAIEU MARCH 4, 1971

PREPARED BY SUBCOMMITTEE STAFF
CBS SCRIPT

MR. MUDD: WE ASKED THE MAN IN

CHARGE OF ALL PENTAGON PUBLIC RELATIONS,

ASSISTANT SECRETARY OF DEFENSE DANIEL

HENKIN, IF HE FELT THE PRESS DID A GOOD

JOB COVERING THE DEFENSE DEPARTMENT.

MR. HENKIN: I BELIEVE THAT IT DOES.

IT FROM TIME TO TIME, OF COURSE, GIVES

ME SOME HEADAEHES, AND I GIVE THE PRESS

SOME HEADACHES, WE UNDERSTAND THAT.

WE ACT AS PROFESSIONALLY AS A PROFESSIONAL RELATIONSHIP, NOT ONLY WITH

THE PENTAGON PRESS AND OTHER MEMBERS

OF THE WASHINGTON PRESS CORPS, BUT

WITH NEWSMEN WHO COVER MILITARY

ACTIVITIES AROUND THE WORLD.

4

(This constitutes about half the original answer. The

meaning and intent were not changed substantially.)

Mr. Mum). But, what is your view, Mr.

Henkin. of the press, and hov- it functions?

Do you—does the press do a good Job cover- 'our department?

14, r. ITENKIN. I believe that it does. From

time to time, of course. it gives me some

headaches, and I give the press some headaches. We understand that. We act professionally, there is a professional relationship,

• not only with the Pentagon press but with

other members of the Washington news

corps, but. with newsmen who cover military

activities around the world. 4

s-is is ror tnem•to assess rir,t for me to

assess, but my evalmWorr oi this is that we

have a working relationship, an understanding that we make mistak,s and we do make

mistakes, the press rr :ices mistakes, but I

do not believe that there is a feeling of

distrust. I think there is an understanding

of the fact that we do make mistakes and

the press makes rrIsta.kef: And I think It

would be a tragic situatioa for our country,

particularly for our natic,ael strength, if

there developed a feeling Jr re -,trust, and not

a recognition that as i..a0s we do make

mistakes.
U

-Z9 217I 0 - IL - V 

CBS SCRIPT

MR, MUDD: WHAT ABOUT YOUR PUBLIC DISPLAYS OF MILITARY EQUIPMENT AT STATE FAIRS

AND SHOPPING CENTERS? WHAT PURPOSE DOES

THAT SERVE?

MR, HENKIN: WELL, I THINK IT SERVES

THE PURPOSE OF INFORMING THE PUBLIC ABOUT

THEIR ARMED FORCES, BELIEVE THE AMERICAN

PUBLIC HAS THE RIGHT TO REQUEST INFORMATION ABOUT THE ARMED FORCES; TO HAVE

SPEAKERS COME BEFORE THEM, TO ASK QUESTIONS

AND TO UNDERSTAND THE NEED FOR OUR ARMED

FORCES, WHY WE ASK FOR THE FUNDS THAT WE

ASK FOR, HOW WE SPEND THESE FUNDS, WHAT

ARE WE DOING ABOUT SUCH PROBLEMS AS DRUGS

-- AND WE DO HAVE A DRUG PROBLEM IN THE

ARMED FORCES; WHAT ARE WE DOING ABOUT THE

RACIAL PROBLEM -- AND WE DO HAVE A RACIAL

PROBLEM,

THINK THE PUBLIC HAS A VALID RIGHT TO

ASK US THESE QUESTIONS,

(Only the first sentence of the original answer was used.

The remainder of the material was taken from another question

and answer. The modification alters the tenor of the response

from attracting volunteers to problems in the armed forces.)

Mr. Mum, But aside from your meetings in 

which you dlsserninate information what

about your public displays of military equipment at State Fairs and shopping, centers?

witt. 

krzy"it 'i 'N.*Alltiaririt' serves the pur

pose of info -wine the public about thei 

armed forces It also has the ancillary benewou tope, of simulating interest in

recruiting as we move or try to move to zero

draft calls and increased reliance on volunteers for our armed forces, I think it is very

Important that the American youth have an

Opportunity to learn about the armed forces.

Mr. MUDD. Is a rocket or missile display on

a flatbed, is that put at a state fair by request of the State Fair people or do your various officers apply for space?

Mr. HENKINS. No, these are—all of these are

requests, made by State Fair people and

others under our directive which imposes

certain restrictions. These must be--for example, there must be no admission charge.

They must be non-proflt. There must be

adequate insurance provisions. There are a

number of other listed. They must be nonpolitical. We have a number of restrictions

which apply .as we assess these requests.

Mr. MUDD. But there lone pressure on these

Sold offices to place their displays at various

public functIons?

Mr. HENRI.. There is no pressure from

my office. I cannot speak for the entire Defense establishment. I can say there is nol

pressure from my office.

Mr. Mono. I—

Mr. HENKINS. We have more requests than

we can fulfill.

Mr. Mono. You do.

Mr. HENKIN. Both for exhibits, for speakers

—we Just can't fulfill all the requests we

have.

••••••

Mr. Mum>. Do you regard the disple.y of military equipment in the country and the Instant availability of military speakers at

Klawanis and Rotary and no forth as excessively militaristic?

Mr. HEIVKIN. Of course I don't. If I believed that we would not have approved

these requests. I believe it is our obligation

insofar as our resources permit to respond

to a request from Klawanis or a Rotary

group in a Midwestern city as well—or any

city. as well as New York or Chicago or San

Francisco. I think the people in any part

of our country have a right to come to on

and ask us if we can provide a speaker, and

when we can. I would hope we will.

Mr. MUDD. But criticism has been raised,

Mr. }Jenkins, that the result, unconscious

though it may be, does create in the minds

of the citizen a deeendence, or an acceptance

of the military and what it represents, as t

way to solve problems. You have heard that

criticism.

Mr. Honoree. Yes, but I-- Mr. MUDD. What do you say-- Mr. would—I would only

amend your question there, Mr. Mudd,- to say

In the minds of some citizens, It preser

this, if I may use the word "image." Bu I

'believe that -the American publie has ie

right to request information about the

armed forces, to have speakers come before

them, to ask questions, and to understand

the need for our armed forces, why we ask

for the funds that we do ask for, how we

spend these funds, what are we doing about

such problems as drugs and we do haven

drug problem in the armed forces—what are

we doing about the racial 'problem in the

armed forces—and we do have a racial prob-

,.. lem. I think the public 11 EIR a valid right _to

,ask us these ouestionsiNot only in the bir

cities but throughout the country and to

extent that our resources permit, I believe

we should respond to these requests. And

also I believe that we have an obligation to

Inform, discuss with the American public

the problems that we confront, problems

such as the increasing Soviet threat.

Now there are those that contend that

this is propaganda. I don't--do not agree

with this. There are those who contend that

we do this to influence the budget. I submit to you that. in my view at least, this is

not a valid argument. The budget for the

current fiscal year was sent to Congress in

February. It has not yet passed. It probably

will not pass, as you well know, covering

the Hill, until late this year, possibly early

next year.

If I permitted that to be my criteria, I

would be forced to suppress news, and I am

not in this job to suppress news.
CBS SCRIPT

MR. MUDD: WELL, IS THAT THE SORT

OF INFORMATION ABOUT THE DRUG PROBLEM

YOU HAVE AND THE RACIAL PROBLEM YOU HAVE

AND THE BUDGET PROBLEMS YOU HAVE -- IS

THAT THE SORT OF INFORMATION THAT GETS

PASSED OUT AT STATE FAIRS BY SERGEANTS

WHO ARE STANDING NEXT TO ROCKETS?

MR. HENKIN: No, I WOULDN'T LIMIT

THAT TO SERGEANTS STANDING NEXT TO ANY

KIND OF EXHIBIT. pOW, THEREARE THOSE

WHO CONTEND THAT THIS IS PROPAGANDA.

I DO NOT AGREE WITH THIS.

(Only the first sentence of Mr. Henkin's original answer is

used. CBS then added two sentences which were lifted from

the middle of an earlier question. Mr. Henkin's comment

referred to data on increasing Soviet threat.)

Mr. MUDS. Do you regard the display of military equipment in the country and the instant availability of military speakers at

Kiawanis and Latary and so forth as- excessively mililaristic?

Mr. HENKIN. Of course I don't. If I believed that we would not have approved

these requests. I believe it is our obligation insofar as our resources permit to respond

to a request from Kiawanis or a Rotary

group III a Midwestern city as well—or any

city, as well as New York or Chicago or San

Francisco. I think the people in any part

of our country have a right to come to us

and ask us if .we can provide a speaker, and

\when we can, I would hope we will. Mr. Muss. But criticism has been raised,

Mr. Henkins, that the result, unconscious

though it may be, does create in the minds

of the citizen a derendence, or an acceptance

of the military and what it represents, as

way to solve problems. You have heard that

criticism.

Mr. IIENKIN. Yes, but / 

Mr. Mum. What do you say—

\

Mr. HENKIN.-1 would—I would only

amend your question there, Mr. Mudd,-to say

in the minds of some citizens, it presents

this, if I may use the word "image." But I

believe that the American public has the

right to request information about the

armed forces, to have speakers come before

them, to ask questions, and to understand

the need for our armed forces, why we ask

f.r the funds that we do ask for, how we

spend these funds, what are we doing about

such problems as drugs and we do have a

drug problem in the armed forces—what are

we doing about the racial problem in the

armed forces—and we do have a racial problem. I think the public has a valid right to

ask us these questions. Not only in the big

cities but throughout the country and to

extent that our resources permit, I believe

we should respond to these requests. And

also I believe that we have an obligation to

inform, discuss with the American public

the problems that we confront, problems

well as the increasing Soviet threat. 

Now there are those that contend that

this is propaganda. I don't—do not agree 

with this.r.enere are those who contend that

we do thrs to influence the budget. I submit to you that, in my view at least, this is

not a valid argument. The budget for the

current fiscal year was sent to Congress in

February. It has not yet passed. It probably

will not pass, as you well know, covering

the Hill, until late this year, possibly early

next year.

If I permitted that to be my criteria, I

waild be forced to suppress news, and I am

notin_this lob to suppress news.

4........ 

.i 1;,l... :Meotouset 

PitheWell,drug

i s 

problem

ein 

sortyou

uf 

have and1

the racial problem you have and the budget problems you bare, is that the sort of

information that gets passed out at State

informs- Fairs by sergeants. who are standing next 

fr. HE:KIN. No, I didn't—wouldn't lun

it that to sergeants standing next to an 

kind of exhibitsI knew—I tfiought we wer

dIscussing speeches and all.
A

CBS SCRIPT

(NO INTRODUCTION - ABUTS DEMITER INTERVIEW)

MR, HENKIN: WE'RE TRYING OUR BEST TO

PROVIDE INFORMATION, THERE UNDOUBTEDLY

HAVE BEEN TIMES WHEN CERTAIN ACTIONS HAVE

BEEN STAGED. I THINK THIS IS TRUE OF ALL

TV NEWS COVERAGE. AFTER ALL, THIS INTERVIEW IS BEING STAGED.

MR, MUDD: How so?

MR, HENKIN: WELL, PROPS WERE SET UP;

ARRANGEMENTS WERE MADE. You AND I JUST

DID NOT WALK INTO THIS ROOM COLD.

ARRANGEMENTS WERE MADE FOR IT.

MR, MUDD: WELL, WE WANTED TO FILM

IN YOUR OFFICE, BUT YOUR PEOPLE SAID

LET'S GO IN THE STUDIO. SO WE DIDN'T

STAGE IT.

(This segment on staging is inserted without narration immediately following DeMiter's claim that newsfim released by DOD is staged. Mr. Henkin qualified

his statement that the interview was "staged," the

qualifying line, "as one might say," was cut. The

deletion changes a statement into an accusation.)

Mr. MUDD. MU, 'IOW, Senator Fulbrig'nt

has said and I i r.i sur, t are familiar with

his comments si ,c- isis . In your province,

he said that there have been instances of

"staging", that almost 50 pei cent cf the

output during a given period cf '69 was designed to make the South Vietnamese Army

look more proficient than it was and that

the real purpose of—I think you called it

the V Series, Victory Series—was to propagandize the American people into thinking

the South Vietnamese were better than they

really were. What Is your answer to that?

HENKIN. First, let me say •;.hat ye

here have studied and, of course, will continue to study very closely any comments

made by Chairman Fulbright. I have been

in communication with him and his office

over a number of months on his views with

regard to these, this TV coverage. I do not

believe that we have—in fact, as we are forbidden by Secretary Laird's clirecti- e from, 

participating in a propaanda effort,INVe are

trying our best to provide information. There

undoubtedly have been times when certain

actions have been staged. I think this is true

of all TV news coverago. After all, till, inter- 0 0

•

r. UDD. OW so?

Mr. HENKIN. Well, props were set up, arrangements were made—I did not just walk

into this roam cold; arrangements were macic

for it.

Mr. Muse. Well, we wanted to film in your

offices, but your people said let's go to the

studios, So. we didn't stage it. 

Mr. HENKIN. No, I am not accusing you of

staging it. I made no accusations at cll.

C.)'
46

Mr. MANELLI. That concludes my questions.

The CHAIRMAN. Mr. Henkin, on March 9, 1971, I wrote Dr. Frank

Stanton, president of CBS, expressing my concern over certain allega- tions made by Mr. Henkin that his words had been rearranged on a

taped interview included in "The Selling of the Pentagon."

On March 23, 1971, Mr. Richard Salant, president of CBS News, responded to these comments and I would now like to introduce this correspondence into the record.

Without objection it will be so introduced.

(The material referred to follows:)

HOUSE OF REPRESENTATIVES,

SPECIAL SUBCOMMITTEE ON INVESTIGATIONS OF THE

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.C., March 9, 1971.

Dr. FRANK STANTON,

President, Columbia Broadcasting System,

New York, N.Y.

DEAR DR. STANTON: Certain allegations concerning the recent CBS documentary program, "The Selling of the Pentagon," have been called to my attention. Specifically, it has been alleged by Mr. Daniel Z. Henkin, Assistant Secretary of Defense for Public Affairs, that his words were rearranged on a taped interview carried on the program. ( See, e.g., Washington Post of Mar. 4, 1971, p. A-10,

"Pentagon Aide Says CBS Shifted Words."). Mr. Henkin also alleges that a statement concerning our foreign policy was attributed to a military officer when, in fact, the officer was reading a quotation of the Prime Minister of Laos. Mr. Henkin's allegations are contained in a letter to the Honorable F. Edward Hebert, which has since been made public.

The techniques of editing news interviews present serious questions which

must be of concern to all broadcasters. Through the editing process, answers to questions may easily be curtailed or rearranged. It is also possible to lift answers

out of context and make them appear to have been given in response to different questions. This is the substance of Mr. Henkin's allegation. Any one of these techniques can result in distortion or outright falsification of an individual's views. While such treatment is certainly unfair with respect to the individual being interviewed, it also presents a disservice to the viewing public. As you know, deceptive editing techniques have already been condemned by the FCC [see Metromedia, Inc., 14 F.C.C. 2d 194 (1968)1.

I understand it is a common practice, incidentally, for television news teams

to film what are called "reverses" in which the newsman originally asking the questions is filmed as he repeats the questions facing the camera. Since the original interview is filmed with the newsman's back to the camera, these "reverses" are spliced in at strategic intervals so as to show the newsman's face on the television screen. This technique of necessity requires the newsman to repeat his questions facing the camera after the interview proper has been concluded. Such a practice need not introduce distortion if the questions are simply repeated verbatim as they were originally asked. Slight changes in wording on even in emphasis, however, may result in an overall distortion of the interview. This distortion would be all the more serious, of course, if there was significant altera- tion in the questions as they were originally asked.

I would appreciate the benefit of your observations on the accuracy of Mr. Henkin's allegations. I would also be interested in your views as to whether the practice of filming "reverses" appears to you to be a necessary and desirable fea- ture of television news coverage. Finally, would you please advise me as to what policies, written or otherwise, are in force at CBS with respect to editing of news interviews and filming of "reverses."

With kind personal regards,

Sincerely,

HARLEY 0. STAGGERS,

Chairman.
47

CBS NEWS,

A DIVISION OF COLUMBIA BROADCASTING SYSTEM, INC.,

New York, N.Y., March 23, 1971.

Hon. HARLEY 0. STAGGERS,

Chairman, Special Subcommittee on Investigations, Rayburn House Office Building, Washington D.C.

DEAR MR. CHAIRMAN: We have your letter of March 9, which calls to CBS's

attention certain allegations by Assistant Secretary of Defense for Public Affairs

Daniel Z. Henkin concerning the interviews with him and with Colonel John A.

MacNeil which were included in the CBS News broadcast "The Selling of the

Pentagon." You ask what policies are in force at CBS with respect to editing of

news. interviews and filming of "reverses," and whether the filming of "reverses"

is in our view "a necessary and desirable feature of television news coverage."

For your information, no "reverse shots" were used in connection with the

interview with Mr. Henkin. Rather, two cameras were utilized for that interview, and thus no reverses were necessary. Each question by the interviewer and

each statement by Mr. Henkin were filmed concurrently with their being made.

In accordance with normal news practice, both print news and broadcast

news, the interview with Mr. Henkin was edited and compressed. In addition,

and also in accordance with customary journalistic practice, in some cases the

editors rearranged material for purposes of the broadcast so that a composite

answer was included. Where material from other questions was added to a

particular answer, it was solely to include points which CBS News felt were

relevant to the discussion.

CBS News policy permits so-called "reverse shots" in news and documentary

interviews except for cases in which the entire broacast or a lengthy segment

of it is devoted to a single interview. This is standard practice in order to avoid

both the logistic and economic difficulties which would arise out of requiring

that all news interviews utilize at least two cameras and two camera crews.

However, our policy provides that where reverse shots are used—as they were

not in the Henkin interview—they may be utilized only with the express consent

of the interviewee and wherever possible the interviewee or his representative

should be present when the reverse shots are filmed.

Further, our policies permit reverse shots and composite editing (and indeed

all editing) only in a manner that does not distort, in content or in meaning,

the impressions of the questions and answers conveyed to the viewer. Hence,

our policy is that when reverse shots are used, they must be examined and compared with all original questions. Where a reverse auestion differs from the

original question in tone, character or content, we forbid its use. Similarly,

when editing results in rearrangement of material, we require careful comparison

in order to determine that there is no distortion or alteration of content or

meaning.

Editing is, of course, the heart of responsible journalism. This is as true of

broadcast reporting as it is of print media reporting, which consists almost entirely of edited material, with the relatively rare exceptions of verbatim transcripts. We agree with you that "the techniques of editing news interviews present serious questions which must be of concern to all broadcasters," and we

believe that the best answer to such questions is a continuing commitment by

broadcasters to their obligation to report the news—even unpleasant news—as

fully and honestly as human ability permits.

We believe that Mr. Henkin's allegations are not justified. We believe that in

the interviews he refers to, CBS News achieved what it set out to do—to

broadcast material fairly representing the views of Mr. Henkin and Colonel

MacNeil as expressed by them. It was our conviction when "The Selling of the

Pentagon" was broadcast, and it remains our conviction today, that it was produced in accordance with the policies which I have described in this letter.

With best wishes,

RICHARD S. SALANT.

The CHAIRMAN. In the letter of March 23, Mr. Salant made the

following observation:

In accordance with normal news practice, both print news and broadcast news,

the interview with Mr. Henkin was edited and compressed. In addition, and also
48

in accordance with customary journalistic practice, in some cases the editors rearranged material for purposes of the broadcast so that a composite answer was

included.

Tell us, Mr. Henkin, do you understand customary journalistic

practice to permit the rearrangement of an interview to the extent it

occurred in your case?

Mr. HENKIN. No, sir; that has not been my experience with any of

the networks. I must emphasize again it has not been my experience

with CBS.

We have done—assisted CBS in many shows, including—I keep

going back to this, "The Changing War in Indochina," the producer

of which was Mr. Ernie Leiser, the reporter for which was Mr.

Charles Collinawood.

As I said, Mr. Chairman, a lengthy interview was conducted here

in Washington with the Secretary of Defense. Only a part of that

was used, but it was used fairly. Neither he nor I have any objection

to the fact of that editing. That is professionalism.

The CHAIRMAN. CBS has claimed that the editing of your interview

and changing of these questions and answers did not materially

change the substance of the interview.

Do you agree with that statement?

MT. HENKIN. No, sir; I do not.

The CHAIRMAN. Do you feel that the transposed questions and answers shown on your interview were a bona fide broadcast of your

words and thoughts?

Mr. HENKIN. No, sir.

The CHAIRMAN. Do you think that the average citizen viewing that

program on his television set understood them to be your words and

your thoughts?

Mr. HENKIN. Well, if one might take his own family as an average

citizen, I would say the answer to that would have to be yes. I think

that a viewer believes when he hears an answer to an interviewer's

question on television, or, at least, sir, he believed it previously, and I

hope he believes it again, that that is the answer to the question, or

edited, perhaps not the entire answer. But I believe he has the right

to expect that that is the answer.

The CHAIRMAN. As you viewed the program do you recall anything in the broadcast that would have made the viewers aware of the

fact that these, in fact, were not your words and thoughts as they were originally given in the interview?

Mr. HENKIN. No, sir; I think that the viewers, my friends, professional colleagues, and others, until they saw the transcript, had every

reason to believe and did in fact believe that these were my answers

to that particular question.

The CHAIRMAN. As you know, this subcommittee has subpenaed

the film outages from the "Pentagon" documentary. Some of these outages of course would include the unused portions of your interview

with Mr. Roger Mudd. Without reference to the legal issues involved,

do you have any personal objections or reservations about these outages of your interview being made available to this subcommittee or the public? You have already agreed to this.

Mr. HENKIN. Right sir.
49

The CHAIRMAN. Mr. Springer?

Mr. SPRINGER. Mr. Henkin, how long have you been in the news

business?

Mr. HENKIN. Since 1941—either late 1940 or 1941. I began with the

Washington Bureau of the Buffalo News. Later I went to the ArmyNavy Journal as it was known then. In the war I was a combat correspondent in the Pacific with the Coast Guard, later worked for the

Oakland Tribune, later came back in 1948 to what is now the Journal

of the Armed Forces but then the Army-Navy Journal, was its assistant editor, later its editor.

So I have been in the news business, sir, all my adult life.

Mr. SPRINGER. Are you a graduate of any school of journalism?

Mr. HENKIN. I am a graduate of the University of California at

Berkeley, but not of the school of journalism. When I went there,

I had already been working as a newsman, in fact I worked as a newsman while I went to school.

Mr. SPRINGER. Have you interviewed from time to time various

people in a question and answer method?

Mr. HENKIN. Many times, sir, over my career.

Mr. SPRINGER. Have you used that method of question and answer

in some of the articles you have written?

Mr. HENKIN. The question and answer approach? Yes; yes, sir.

Mr. SPRINGER. Right. And in those where you were representing that

they were giving an answer verbatim, did you ever transpose those to

other questions?

Mr. HENKIN. No, sir I would consider that unprofessional and

unethical.

Mr. SPRINGER. How many years did you say you have been in the

news media business?

Mr. HENKIN. It is about 30 years now, sir.

Mr. SPRINGER. Have you ever known any other reporter who regarded

that as recognized professional conduct who would transpose questions

to answers where it was supposed to be verbatim and written as

verbatim?

Mr. HENKIN. No sir; I don't recall any of my colleagues ever discussing that as a professional or ethical practice.

Mr. SPRINGER. Mr. Henkin, I have an editorial from the Washington

Post of March 30, 1971, and I would like to read only the last paragraph

for the record:

Surely, something different from and less cosmic than a challenge to CBS's

First Amendment rights is involved in the question of whether or not the subject

of such a rearranged interview should not be given a chance to see and approve

what he will be demonstrated to have said. And surely this 'editing' practice must

be conceded—with reason—to have damaging effect on the public confidence in

what is being shown to have happened—shown to have been said. We agree with

Mr. Salant's premise that we are all in the same dinghy. That is why we are so

concerned that neither should sink.

Would you agree with that paragraph?

Mr. HENKIN. I certainly would agree with the conclusion that no

one who is involved in providing information to the American public,

none of us should sink. We have too important a role to play, all of us.

We all have problems. We need to sit down and discuss these problems. One of the problems that needs further discussion from those
50

of us in Government and those of us in the news industry, in my personal view, sir, concerns the documentary, or what some have referred

to as the cinematic essay.

I think we need to sit down and discuss those. They are different, to

some degree, from the ordinary half hour or 5-minute news shows.

I don't have any instant solutions. I think we need to sit down very

carefully and calmly together explore them, for certainly there are problems here. This committee has explored some of these problems.

Mr. SPRINGER. Mr. Henkin, in your experience as a newsman, did

you ever stage a show on which you made a report as news?

Mr. HENKIN. No, sir.

Mr. SPRINGER. Is it considered ethical to do so?

Mr. HENKIN. It certainly is not ethical unless the viewer or the reader of a magazine is told that this is what has been done. There could be instances where it might, in the interest of providing form, be necessary to do this.

If the reader is informed that this is the case, I see no problem there, if it contributes to the flow of information.

Mr. SPRINGER. Let me read to you from Malcolm Muggeridge's

speech before the American Society of Newspaper Editors in April

of 1971 a paragraph of that speech. May I say that that speech is one of the great speeches I have read in the 21 years I have been in Congress by any person. These are the words:

The last time I was in New York I happened to catch a glimpse of Newzak at the production end. I was walking back to my hotel, and came upon a little

group of people standing about in the road. It was, in fact, a demo. There were the usual bearded academics and lib-females carrying slogans, a little group of police with a van, and one or two reporters. Nothing seemed to be happening, and when I asked why, I was told that the cameras hadn't turned up. Shortly afterwards they arrived and set up; someone snapped a clapper-board and shouted Action! and the demo slogan began. The bearded academics and libfemales raised their slogans and shouted in unison; the police grabbed one or

two of them and pitched them in their van. Then someone shouted Cut! and it was all over. Later in the evening I caught the demo on television in my hotel

room. It looked fine.

Does this give you some idea of what we are talking about in this investigation?

Mr. HENKIN. Yes, sir. And it gives me an idea of what we have been talking about with members, responsible members of all news media. The problems are very complex.

Mr. SPRINGER. Let me ask you this: Did you ever use this kind of

a production to get a story in your 32 years in the news business?

Mr. HENKIN. No, sir.

Mr. SPRINGER. Did you ever know any member of the press who did?

Mr. 11E1.1-lux. Offhand, I do not know of anyone who did.

Mr. SPRINGER. Mr. Chairman, I ask unanimous consent at this point

to insert in the record the full editorial of the Washington Post of Tuesday, March 30, 1971 titled "Mr. Salant's letter."

Mr. PICKLE (presiding) . Without objection it will be entered in the record.

(The article referred to follows:)

[From the Washington Post, Mar. 30, 1971]

MR. SALANT'S LETTER

In our letters space today we print a response by Richard Salant of CBS News to our recent editorial concerning the dispute between CBS News, the Pentagon,
51

Vice President Agnew, Congressman Hebert, and now—as it seems—The Washington Post. In time the U.N. may have to be called in, but for now we would

like, in a unilateral action, to respond to Mr. Salant's complaint. We think it is

off the point. And we think this is so because Mr. Salant invests the term "editing"

with functions and freedoms well beyond anything we regard as common or

acceptable practice. Mr. Salant taxes us with unfairly recommending two sets of

standards in these matters, one for the printed press and another for the electronic. But he reads us wrong. We were and are objecting to the fact that

specifically, in relation to question-and-answer sequences, two sets of standards

already exist—and that what lie and others in television appear to regard as

simple "editing" seems to us to take an excess of unacknowledged liberties With

the direct quotations of the principals involved.

Before we go into these, a word might be of use about the editorial practices

(and malpractices) common to us both. When a public official or anyone else

issues a statement or responds to a series of questions in an interview, the printed

media of course exercise an editorial judgment in deciding which part and how

much of that material to quote or paraphrase or ignore. The analogy with TV's

time limitations, for us, is the limit on space: deciding which of the half million

words of news coming into this paper each day shall be among the 80,000 we

have room to _print. Thus, "Vice President Agnew said last night. . . Mr. Agnew

also said . . ." and so on; it is a formulation basic to both the daily paper and

the televised newscast.

That bad and misleading judgments can be made by this newspaper in both

our presentation and selection of such news goes without saying—or at least it

did until we started doing some public soulsearching about it in this newspaper

a good while back. There is, for example, a distorting effect in failing to report

that certain statements were not unsolicited assertions but responses to a reporter's question. But that we do not confuse the effort to remedy these defects

with a waiving of our First Amendment rights or a yielding up of editorial

prerogatives should also be obvious to readers of this newspaper—perhaps tediously so by now. What we have in mind, however, when we talk of the license

taken by the electronic media in the name of "editing" is something quite different, something this newspaper does not approve and would not leap to defend

if it were caught doing. It is the practice of printing highly rearranged material

in a Q-and-A sequence as if It were vebatim text, without indicating to the reader

that changes had been made and/or without giving the subject an opportunity

to approve revisions in the original exchange.

It is, for instance, presenting as a direct six-sentence quotation from a colonel, a "statement" composed of a first sentence from page 55 of his prepared

text, followed by a second sentence from page 36, followed by a third and fourth

from page 48, and a fifth from page 73, and a sixth from page 88. That occurred

in "The Selling of the Pentagon," and we do not see why Mr. Salant should find

it difficult to grant that this type of procedure is 1) not "editing" in any conventional sense and 2) likely to undermine both the broadcast's credibility and public confidence in that credibility.

The point here is that "The Selling of the Pentagon" presented this statement

as if it were one that had actually been made—verbatim—by the Colonel: TV

can and does simulate an impression of actuality in the way it conveys such rearranged material. Consider, again from the same documentary, a sequence with

Daniel Z. Henkin, Assistant Secretary of Defense for Public Affairs. This is how

viewers were shown Mr. Henkin answering a question:

"Roger Mudd: What about your public displays of military equipment at state

fairs and shopping centers? What purpose does that serve?

Mr. Henkin: Well, I think it serves the purpose of informing the public about

their armed forces. I believe the American public has the right to request information about the armed forces, to have speakers come before them, to ask

questions, and to understand the need for our armed forces, why we ask for

the funds that we do ask for, how we spend these funds, what are we doing

about such problems as drugs—and we do have a drug problem in the armed

forces; what are we doing about the racial problem—and we do have a racial

problem. I think the public has a valid right to ask us these questions."

This, on the other hand. is how Mr. Henkin actually ancwered the ouestion :

"Mr. Henkin: Well. I think it serves the nurnose of informinz the pnblio about

their armed forces. It also has the ancillary benefit, I would hope, of simulating interest in recruiting as we move or try to move to zero draft calls and in-
52

creased reliance on volunteers for our armed forces. I think it is very important

that the American youth have an opportunity to learn about the armed forces."

The answer Mr. Henkin was shown to be giving had been transposed from

his answer to another question a couple of pages along in the transcribed interview, and one that came out of a sequence dealing not just with military displays but also with the availability of military speakers. At that point in the interview, Roger Mudd asked Mr. Henkin whether the sort of thing he was

now talking about—drug problems and racial problems—was "the sort of information that gets passed at state fairs by sergeants who are standing next to

rockets." To which Mr. Henkin replied:

"Mr. Henkin No. I didn't—wouldn't limit that to sergeants standing next

to any kind of exhibits. I knew—I thought we were discussing speeches and all."

This is how the sequence was shown to have occurred, following on Mr. Henkin's transposed reply to the original question:

"Mr. Mudd: Well, is that the sort of information about the drug problem

you have and the racial problem you have and the budget problems you have—

is that the sort of information that gets passed out at state fairs by sergeants

who are standing next to rockets."

"Mr. Henkin: No, I wouldn't limit that to sergeants standing next to any kind of exhibit. Now, there are those who contend that this is propaganda. I do

not agree with this."

The part about discussing "speeches and all" had been omitted the part about

propaganda comes from a few lines above Mr. Henkin's actual answer and

was in fact a reference to charges that the Pentagon was using talk of the "increasing Soviet threat" as propaganda to influence the size of the military

budget.

Surely, something different from and less cosmic than a challenge to CBS's First Amendment rights is involved in the question of whether or not the subject of such a rearranged interview should not be given a chance to see and approve what he will be demonstrated to have said. And surely this "editing" practice

must be conceded—with reason—to have damaging effect on public confidence in what is being shown to have happened—shown to have been said. We agree with Mr. Salant's premise that we are all in the same dinghy. That is why we

are so concerned that neither end should sink.

Mr. HENKIN. If I may add a comment, Mr. Springer, concerning

editing: I was deeply concerned not long ago when I saw a small item

in the local newspaper in which an Associate Justice of the Supreme

Court had declined to speak to a meeting out West on ecology until

the television cameras had been removed.

It was his feeling, I later learned, his concern that he had some

experiences in which his remarks had been edited in such a way, as he

put it. that a "yes" became a "no," and a "no" became a "yes."

Now, I am. as a professional newsman and in my present position,

concerned with such events occurring because I feel very strongly that

we have to—we need television coverage and there should be access for

TV cameras.

We have tried at the Pentagon to have virtually all of our news

conferences on the record and available to television. I believe, as I

said in my statement, very deeply in the significance and importance

of television news coverage. But I think we all need to recognize that

we do have a problem that does need discussion, when such a person

as, in this case. Associate Justice Douglas declines to address a group

on ecoloow until cameras are removed.

I think that is a very serious problem with regard to the flow of

information to the American public.

Mr. SPRINGER. Do you periodically review the newscasts, we will ss - -

from Vietnam?

Mr. ITPNY1 N. The news coverage, for example, in the Cronkite Show

or Brinkley?
53

Mr. SPRINGER. Yes.

Mr. HENKIN. Yes, I look at them almost every night, that is part of

my job, part of my lifelong interest.

Mr. SPRINGER. An article appeared in the TV ashington Post which

I want to insert in the record after I get through questioning on this

point, in which it was a review of Mr. Russell Wiggins' speech before

the Washington Association of New Jersey early this year.

In a sly kind of way, Mr. Wiggins as you know, I believe I am

correct, was the managing editor of the TV ashington Post for a number

of years.

In this, Mr. Wiggins pointed out what would have happened at the

crossing of the Delaware if you had had TV news coverage of today,

in which he said that it was likely that the newscaster would have

shoved a microphone under a private's nose and said "Isn't this a

rather bad time to be out with 12 inches of snow on the ground?

"Don't you believe your commander probably has made a mistake

at the time of year that he should have launched this?"

Secondly, "Don't you think this is probably the wrong time because, look, you have rags around your feet and you are certainly

ill-equipped and you have very little chance of being successful in

this endeavor?"

And a third question might have been, "And why do you want to

cross the Delaware with all of this ice floating down when there is

a great danger that all the boats might be upset while crossing the

Delaware?"

And fourth, "Why do you want to go to Trenton on a night like

this, when actually as a matter of fact, in the cannonading and firing

of shots, in Trenton you might kill some innocent people who may be

running around on the streets."

And fifth, "Why all of this anyway, over just something called

taxation without representation?"

Mr. Henkin, in your experience, are you finding anything similar

to this in South Vietnam interviews by TV?

Mr. HENKIN. On a day-to-day basis, sir, the answer to that is "yes."

But it is my strong belief that over the long range, over the months

and over the years, that television has provided more information to

the American public about the conflict there than was otherwise possible. There are these problems.

Another similar story suggested that had there been such intensive

T V coverage as there is, for example, on a particular hill in Vietnam,

at Bastogne, we might have well the next day sued for the best terms

we could get from Hitler.

These stories come up. But over the long run, I would just reiterate

what I have said before. My personal belief is that television has

brought a tremendous amount of information and insight and also

distortion to the American public.

These are the matters, the problems that we need to sit down and

discuss. been lige all of us, in my view, those of us in government information and the press, have a great responsibility to the American

public, particularly in the world in which we live today.

Mr. SPRINGER. Mr. Chairman, may I ask one more question and I

am through.
54

Mr. PICKLE. Yes, if the gentleman would limit it to one more question.

Mr. SPRINGER. One more.

Mr. Henkin, 3 years ago we created the Public Broadcasting Corpo- ration. At the insistence of those individuals and public groups who wanted that act enacted we put in these words, and they approved them before we put them in the act: All controversial matters must be presented objectively and in balance.

Similar words are in the British Broadcasting Corporation Act,

more commonly known as BBC.

Would you believe that is good law?

Mr. HENKIN. Yes, sir; very emphatically.

Mr. SPRINGER. Mr. Chairman, I thank you.

Mr. HENKIN. I would make one parenthetical addition. I noticed not long ago a CBS newsman extolling the BBC's approach.

Mr. PICKLE. Would the gentleman repeat that answer.

Mr. HENKIN. Yes.

Just as a parenthetical addition I noted not long ago that a promi- nent CBS newsman, in a panel discussion show, had extolled, had praised this BBC approach.

Mr. SPRINGER. I ask unanimous consent to insert in the record at this point the article which I mentioned regarding the speech of Russell Wiggins before the Washington Association of New Jersey earlier in 1971.

Mr. PICKLE. Without objection it will be so made a part of the record.

(The article referred to follows:)

ON PRESS COVERAGE OF THE VIETNAM WAR

(By Kenneth Crawford)

How would the modern media have reported George Washington's crossing of the Delaware at McKonkey's Ferry on Christmas, 1776? J. Russell Wig- gins, former editor of the Washington Post, asked this important question— and answered it—in a speech to the Washington Association of New Jersey

on Washington's arbitrary new birthday, February 15.

Television camera men would have focused their zoom lenses on the ragwrapped feet of Washington's troopers. When it was over, microphones would have been thrust under the noses of stripling recruits to catch their answers to the question: "How do you feel about some of your buddies being lost in this sneaky operation?" The writing war correspondents would have salted their dispatches with suggestions that the whole bloody venture was ill-conceived by an incompetent commander, ill-excused by a badly trained and equipped army and predestined to fail.

New York editorial writers would have followed up with lamentations about the plight of Trenton's civilian population, driven from its snug houses into the cold on a sacred holiday, caught in the crossfire between Hessian defenders and attacking colonials, and forced into a fight against its will over a question- able cause: something about taxation without representation. Washington, in- stead of attacking, should have been negotiating. His occupation of Trenton and quick withdrawal showed that he was still engaged in search-and-destroy operations—"following the will-o-the-wisp of military victory," as Wiggins thought the editorial writers would have put it.

Wiggins fantasy was, of course, a wry comment on the way the media of the 60s and the start of the 70s have dealt with the war in Vietnam. This war is the first in which American media, measured by weight of viewership, readership and influence, have been kinder to the nation's enemies than to its friendlies. This has been partly inadvertent, partly not. In any case, Ho Chi Minh has come off
•

I

1

55

as this war's greatest hero, the Vietcong as its most admired fighters, American

and South Vietnamese leaders as its most mistrusted participants. American GIs

as its least appreciated warriors, especially since My Lai, which has been made

the basis for unjust generalization, and South Vietnamese soldiers as invariably

unrealiable, also unjust.

All this is something new for Americans. They have always before tended to be

hometeam rooters. In British pubs Rommel may have been the favorite hero of

the second world war but Americans stood by their own even when correspondents on the scene in North Africa intimated, insofar as intimation could be

slipped through the censorship, that the "Darlan deal" and mistreatment of De

Gaulle were compromising the morality of the allied war effort.

Wars have never been pretty but their ugliness has never before been conveyed

to American households in living color, as it has this time, and always from our

side because the other side is out of reach of cameras and correspondents. But

it is more than that. War correspondents have often been instant experts and

critics and they seem even more so this time. They have to be youthful to stand

the physical rigors and brave to take the chances they must run in Vietnam. More

than 30 of them have been killed. They are admirable in action but sometimes

wrong in their strategic and tactical judgments and simplistic in their politics.

Prize committees, Pulitzer included, have rewarded the most captious. The

self-styled "cowboys" who constituted themselves a sort of get-rid-of-Diem committee in the early days of the war made a point of being on hand for every bonze

immolation and of representing the Saigon disorders as a sort of holy war between the ruling Catholics and the subject Buddhists. Reputations were forged

in the bonze fires.

Here in Washington, too, there has been a lively journalistic contest to be first

with the worst. One of its high points was The New York Times revelation in the

aftermath of the Tet attacks that the military was asking for 206,000 more troops

to take advantage of the enemy's overextension. Coming, as it did, two days before the New Hampshire primary, the Times report had enormous political impact. It almost certainly contributed to the big McCarthy vote and, in turn, to

President Johnson's subsequent decision not to run again.

The genesis of the expose, if that is what it was, has just been publicly revealed

for the first time by Philip Potter, Washington's Bureau Chief of the Baltimore

Sun. It was leaked to the Times by Townsend Hoopes, then a Pentagon official of

dovish persuasion. Actually, the plan Hoopes made available to the Times was

one of the alternatives under consideration and one which had little chance for

Presidential approval in the Washington atmosphere of the post-Tet distress.

Hoopes had to violate a specific presidential order of secrecy pending decision to

spring the leak.

Things haven't changed much, as the suspicious reporting of the South Vietnamese effort to cut the Ho Chi Minh trails in Laos demonstrates. By part of the

press it is treated as a cunning scheme to inject Americans into an expanded war

rather than what it is, a bold attempt to prepare for continued evacuation of

American forces. Reporters and editors keep telling themselves and others that

they have been more perceptive about this war than have military and political

leaders. They may be right. But they have enjoyed the advantage of ultimate

irresponsibility. In President Nixon's place, they would probably be doing about

what he is doing. And history may be more approving of him than of them.

Mr. PICKLE. Before the gentleman leaves, I would insert a question at this point.

Would you care to identify the official who had extolled the virtues

of the BBC approach?

Mr. I-TEN-Kix. Yes; this was Mr. Morley Safer in an interview over

a publicly owned station in New York City. If you care I have a transcript of that which I can make available to you.

Mr. PICKLE. I wish you would make that available to the committee.

Mr. SPRINGER. May I point out, Mr. Chairman, to Mr. Henkin, that

the Public Broadcasting Corporation has responded to that responsibility set out in that act with a very excellent program which I view

regularly called "The Advocate," one of the fine programs that is pre-
56

sented on controversial matters in which it is presented equally objectively and in balance.

Thank you.

Mr. HENKIN. Yes, sir; we were privileged to have one of our Assistant Secretaries, the Comptroller, Mr. Moot on that program not long

ago.

Mr. PICKLE. Mr. Henkin in your testimony on page 2 you make a

rather strong indictment or challenge in which you said, "This resulted from the fact that the producer decided to edit and distort

some of my words with the result that I was portrayed as having

made an accusation.

"It was in fact the producer who made the accusation by his doctoring of my words."

The counsel has asked you to submit your analysis of the various

questions and your answers made at the interview.

Am I to take it that in your response to the individual questions

and in comparison to the place in which they were put into the film,

"The Selling of the Pentagon," that you will comment whether you

think that the question and the answer and the insertion in the film

was in context or not in context, was doctored or not doctored?

Will you do that?

Mr. HENKIN. Yes, sir; and if my analysis does not meet the needs

of the committee, I will be prepared to amplify on that, respond to

any further questions that the counsel may ask.

( The letter was subsequently received by the subcommittee. Sete

Appendix F, p. 261.)

Mr. PICKLE. A great deal on what we have heard this morning, and

that we will probably hear in the rest of the hearings in the weeks

ahead revolve around the words of "in my opinion, and in my judgment" and whether the investigation is censorship or attack on the

First Amendment.

I am interested in you giving to this committee your very clear personal reaction as to the individual question asked, and factually, was

the answer inserted in what you think was a fair manner of the overall

film.

That is so basic, that I want you to give us very strong and basic

answers. You may do that now individually, or since you are going to

give it for the record, that may be more satisfactory.

Mr. HENKIN. May I transmit this answer with a letter of transmittal?

Mr. PICKLE. That would be satisfactory.

Now I want to ask you: Would the furnishing by CBS of the outages of your interview, or all clips that were not used in the interview,

do any violence or damage to the First Amendment?

Mr. HENKIN. Sir, that is a judgment that is difficult for me to make,

violence or damage, and I would 

Mr. PICKLE. Let me rephrase it, then. Would it do any—would it

weaken the First Amendment?

Mr. HENKIN. I do want to be candid with this committee and anyone else who may read its record, sir, and I must say that as a newsman on such a matter as this—I would, of course, first want to consult
57

with my counsel—but my inclinations would be not to provide my

notes or source material.

Mr. PICKLE. Mr. Henkin

'

I am not asking you about your notes. I

am asking about the filmed interview, the outages on those that were

not used.

In what manner would that constitute a violence to the First Amendment?

Mr. HENKIN. I do not know, sir. We are providing to you the transcripts of my interview with Air. Mudd, and I do not think that I am

doing any violence to the First Amendment by providing that material.

Mr. PICKLE. Is your answer that the furnishing of outages of this

interview would not do any violence or damage to, or weaken the

First Amendment?

Mr. HENKIN. Of the interview with me?

Mr. PICKLE. Yes.

Mr. HENKIN. In my judgment, in that specific case, the answer would

be no, but there is a matter of principle involved here.

Mr. PICKLE. We all recognize there is principle, and I can understand why with 20 or 25 years of background you would want to give

me an answer and then hedge just a little bit for the "brothers."

[Laughter.]

Mr. HENKIN. Not hedge for the brothers 

Mr. PICKLE. The question is, would this particular interview do any

damage to the First Amendment, and you tell me no, and we will rest

the case on that one point.

I assume, also, that the furnishing of that outage would not constitute any form of censorship so far as you could see.

Mr. HENKIN. With regard to the particular interview with me, sir,

the answer is no.

Mr. PICKLE. In the last page of your testimony, you state that the

film has been withdrawn at the request of CBS; did you say why CBS

was asking that the film not be shown overseas?

Mr. HENKIN. Another office of the Pentagon has responsibility for

this, but they advise me they checked with the syndication department

of CBS which we work with all the time in moving film to our servicemen and women overseas. This syndication department had received

some sort of legal 

memo, 

I was told, asking that this be withdrawn,

and beyond that, I do not know why CBS would want to ban the viewing, the showing of this film to our men and women overseas.

Mr. PICKLE. When you say that "they" had received a legal memo

from "them," by "they" you mean that this division of CBS—what

division is it?

Mr. HENKIN. I have here a memo. It is the syndication division, I

guess, but it is one CBS office to another CBS office, asking that the

Pentagon please be asked to take action to withdraw this film, to ban

its showing to our servicemen and servicewomen overseas.

Mr. PICKLE. Then it was CBS's legal staff that made the request to

the syndicated division of CBS not to show the film?

Mr. HENKIN. Yes; that is the information I have received from our

people.

Mr. PICKLE. One other question. Apart specifically from this particular interview, and this is what we must concern ourselves with
58

here, this morning—your questions and answers and how they were

portrayed on the film—but apart from that, I take it from your answers to Mr. Springer that overall on regular broadcasting networks,

that the establishment of the principle that newscasts and/or docu- mentaries must be balanced, assuming they are of a controversial nature, must be balanced and possessed of objectivity, that you think

that is applicable not only for our networks—

Mr. HENKIN. Yes, sir; but for printing and everything else. I think

the American public is entitled to that.

Mr. PICKLE. If that were established, would that be censorship in

your opinion

Mr. HENKIN. I am not an attorney, sir. As an objective? I would

be personally prepared to state that as a personal creed and belief and

an objective of mine in a speech that I gave, or in a meeting, as I have,

with newspapermen around the country, with journalism students,

and I believe that that is a desirable goal, and desirable requirements.

Mr. PICKLE. Thank you. The Chair has other questions which I

would like to come back to, but in the interest of time, since the other

members have not had a chance, I will recognize them, and we will

see how much time is left at the conclusion.

Mr. Shoup?

Mr. Sno-crr. Thank you, Mr. Chairman.

Mr. Henkin, with your accusations and criticism of the handling and

editing of your interview, do you feel that these newsmen, that these

accusations you are making endanger the First Amendment, the right

of free press?

Mr. HENKIN. I don't think so. There is nothing in my view that endangers the First Amendment when you have criticism back and forth

between newsmen and other officials in a professional way. I think it

maybe strengthens the First Amendment.

Mr. SHOUP. Since we have issued the subpena, I have seen quite

a bit of correspondence from CBS and I am quite sure the rest of the committee has too, and one of their slogans, mottos, which I think

every piece of stationery carries, contains the words, "The Right to

Know,' the public has the right to know.

Do you feel that way, Mr. Henkin, and I ask this of you as a former

practicing newsman, does the public have the right to know the extent

of editing that has been done to a reply?

Mr. HENKIN. I believe it has the right to know that there has been editing in one way or another, and there are professional approaches,

techniques, than can be used.

Mr. SHoup. You spoke previously of the possibility that has been

proposed that any documentary be provided to those who are involved

in it. Do you subscribe to this?

Mr. HENKIN. I have not advocated that. It is a matter that I think

ought to be discussed on the whole problem of documentary, and as I

said, sir, I have no answers. I think it is a problem.

I hope, sir, the will be able to strengthen documentaries, and have

more documentary material. I think they serve a very useful purpose.

But I think if they become a matter continually involved in controversy and conflict that the purpose of the documentary could be debased. I think perhaps one suggestion has been made by some that
59

perhaps a person, in this case, myself, might be given 5 minutes—or

x number of minutes—on the show to express his views at the same

time, or to look at the incident. For example, had CBS, in this case

shown me the transcript at the same time it showed it to certain TV

critics around the country—if they had given me that privilege—I

might have been able to correct some obvious errors that were in there,

and I could have been of assistance.

They did not elect to do that, and that is their privilege. But I do

think we need to address this.

We have two networks, and one describes a show as a documentary,

and another as a cinematic essay. I don't think there are a lot of people

who know what a cinematic essay is.

These matters ought to be discussed.

Mr. SHOUP. Do you think legislation is the answer to this, or, as

CBS has stated, and others involved in the news have stated, that

the responsibility lies with the media itself.

Mr. HENKIN. I think it lies with the media primarily to correct this.

It lies with us in the Government who are responsible for providing

information to meet with them. And it lies, also, in my view, with Congress to watch it very closely.

Mr. SHOUP. One final question, Mr. Chairman.

Mr. Henkin, during your interview, your film interview, was there

any time that you directed CBS that these matters discussed were to be

kept confidential?

Mr. HENKIN. No.

Mr. SHOUP. Was it implied at any time that any of your remarks or

any of the filming would be confidential?

Mr. HENKIN. No.

Mr. SHOUP. Would you say that any claim by CBS of the right of

a reporter to withhold these, after receiving the expressed desire of

those being filmed, that they be made available to the public—would

there be any violation there of the right of confidentiality?

Mr. HENKIN. That would be for CBS to respond to,in my judgment.

As a public official, I am responsible not only to CBS and all the

news media, but responsible to Congress. In this case I was asked

a number of questions with respect to comments made by the distincruished chairman of the Foreign Relations Committee.

responded to these questions and after the interview I wrote the

chairman and told him there had been this interview, and that I would

send him a transcript of it, because I knew of his interest in the many

areas. But I thought it would not be appropriate for me to send that

interview to him until the show was put on.

When the show was put on, I sent him an interview, and I would

do that again.

Mr. SH017P. Mr. Henkin, then you have no objection as a participant in that program to CBS supplying this committee with the

original footage of your interview?

Mr. HENKIN. No, sir; I have no objection to this committee receiving from any source what I have said.

Mr. SHoup. In your official position with the Department of Defense, does the Department of Defense have any objection?

Mr. HENKIN. NO, sir.

62-142 0-71-5
60

Mr. SHOUP. Pardon?

Mr. HENKIN. I will answer "No, sir." I am not a lawyer. I would like

to be buttressed here by legal counsel, but I will say, "no, sir," on

my responsibility and in my position.

Mr. SHouP. No further questions.

Mr. PICKLE. Mr. Blanton?

Mr. BLANTON. Thank you, Mr. Chairman.

Did I understand you, Mr. Henkin, to say that you have a complete and continuous electronic tape of the 40-minute interview with

Mr. Mudd?

Mr. HENKIN. Yes, I do.

Mr. BLANTON. You have been a professional person and prepared

for this type of thing, in having an interview. Whether it was purposely done or not, it puts you in a position of being able to have real

proof if there is distortion and exchange of responses to questions.

But suppose that this had not been a professional person that was

subjected to these changes and responses switched. Where would he

be in trying to prove this had actually happened?

Whenever you see it in living color, it is the other way around.

Mr. HENKIN. If I understand your question correctly, sir, we

suggest, or I suggest—let me put it on my shoulders, because it is my

responsibility—I suggest to people in the Department of Defense when

they are holding on-the-record news conferences, on-the-record meetings, and these are also being taped, that he has every right and

privilege to tape his remarks, too.

Those words are precious to him, and he has as much right as anyone

else to those words.

Mr. BLANTON. Who do you feel was damaged most in this distortion,

yourself, the Department of Defense, or the broadcasting media

themselves?

Mr. HENKIN. I feel that two groups were damaged, sir, the most,

and I am not the one that was damaged at all in those terms.

One was the American public, which was misinformed about certain

activities, and two, were the men and women of the Armed Forces for

whom I have a responsibility, and I think, in my view, there are instances in that show where men and women in the Armed Forces were

maligned, and I feel that very deeply.

As for myself, that is no great problem. I feel disappointed, pro- fessionally disappointed that my words were changed, but that is not

a real issue.

The real issue is, in my view, that the American public was misinformed, and that the men and women of our Armed Forces were in

some cases maligned and even held up to ridicule.

Mr. BLANTON. You do not feel that the broadcast media with actions by one of their own, its integrity and credibility is damaged by such

shows as this?

Mr. HENKIN. That is a judgment they have to make. And, inciden- tally, Mr. Congressman, I discussed this. I know the responsible people in the television network industry and at the local station level, because we have met with a number of local station managers about this problem—I know that they are concerned, and I think they recognize

that there is a need for more discussion of these issues.
61

Incidentally, I have discussed this with Mr. Richard Salant, among

others, and I will be talking with other officials. I think it is important,

and Secretary Laird tells me it is important, that we maintain and

strengthen lines of communication with the news industry across the

board—hard print, the electronic news people—so that the American

people are better informed. That is our goal.

Mr. BLANTON. I have no further questions, Mr. Chairman.

Mr. PICKLE. Mr. Manelli, do you have additional questions? I recognize counsel.

Mr. MANELLI. Have you had occasion to read a copy of the subcommittee subpena that was issued on CBS?

Mr. HENKIN. No, I have not.

Mr. MANELLI. You mentioned the damage that you felt had been

done to the personnel in the Armed Forces and the public and perhaps

only peripherally to yourself in this distortion or rearrangement, I

should say, or manipulation of your filmed remarks.

It is true, isn't it, that you have made what efforts you can to, at

least in part, remedy this damage? Your office has put out a publication

or a memo which is available to the public 

MT. HENKIN. Yes.

Mr. MANELLI. That attempts to set the record straight.

Mr. HENKIN. Yes, but we are not interested, Mr. Manelli, in confrontation or calling names to each other. Our interest is in working

out a solution.

Mr. MANELLI. I did not suggest that you wanted a confrontation,

but you had means at your disposal in the office you hold to make these

efforts, and 

Mr. HENKIN. We have not stopped talking to the American people

because some have suggested that when we talk to the American people

we are propagandizing.

I don't think some of the people shown on that film are propagandists. I consider that I have an obligation in my present position to

do what I can to help inform the American people. And we face some

very difficult problems ahead as we try to change the thinking, try to

look beyond Vietnam and change the thinking of many of our young

people toward the Armed Forces. Particularly, as we try to move

toward a goal of zero draft calls, it is very important to me and

Secretary Laird and all of us in the Department of Defense, that the

American public receive a correct image—and certainly we have our

blemishes, and these should be exposed—of what the military is doing,

and we are not running a _sinister propaganda machine to militarize

the American public.

Mr. MANELLI. You did have a definite difference of opinion with the

producers of this particular show as to the accuracy with which your

portion of it was broadcast?

Mr. HENKIN. Right, and beyond that, Mr. Manelli, I have a disagreement with the basic conclusion of the narrator where he says we

are out trying to propagandize—I guess that would be a word, I am

not quoting him directly—but to sell the idea that the United States

wants to be the world policeman.

That is exactly opposite to what we are trying to get across to the

public.
62

Mr. MANELLI. I think it is a little extraneous to the precise issues that I was trying to get into in this question.

Mr. HENKIN. Yes, sir.

Mr. MANELLI. There could easily be some circumstances in every way similar to yours, where the damage to the public interest would be just as great, because of similar manipulations or rearrangements of texts or what have you, where the person would not be in a position that you are to make even an attempt to set the record straight. You do have resources at your disposal which most people don't have, even though they may not compare with the resources of CBS— or they may.

It is a matter of some debate.

Those are the only questions I have.

Mr. HENKIN. If I may just make a comment on that, I think that is why we must rely so much on a free press across the board to guard those rights, and also, as required, on Congress.

We need these checks in our society of a free press and a Congress. Mr. PICKLE. Is counsel finished?

Mr. MANELLI. Yes Mr. Chairman.

Mr. PICKLE. Mr. Ifenkin, you take the strong position that the Pentagon or the Defense Department is not trying to promulgate any sinister propaganda machine to militarize the country, or be the world policeman.

Do you feel, then, that this was the message which the film "The Selling of the Pentagon" was attempting to portray to the American people?

Mr. HENKIN. I cannot make an evaluation of what was attempted, what the attempt was. I do know the words of the narrator's concluding remarks say that, that we are trying to—

Mr. PICKLE. Would you venture the purpose of the film, so far as the effect of it was concerned—what was the messageS they were attempting to give to the American people?

Mr. HENKIN. I have no way to make that evaluation. They would have to answer that, the producer and others. I know that we did provide them assistance. I am proud that we did, notwithstanding all the problems.

I am proud we did provide them with assistance. I believe in a free

press.

Mr. PICKLE. I have to take it, but when you deny very strongly that

your division was not attempting to build any kind of a propaganda

machine from a militaristic point of view that since you object so strongly to that characterization of your efforts that you are in effect saying that this is what that particular program was attempting to do.

Mr. HENKIN. That would be for others to make the judgment. I

think possibly many Americans came to that conclusion based on the mail we have received.

I could not disagree with that that many Americans came to that conclusion. They were not—let me just leave it there, sir, if I may.

Mr. PICKLE. Before we conclude, I want to repeat again to you as

one member of the committee that I want to emphasize again that I am interested primarily at this point in the hearings to know your specific

answers to specific questions and where they were inserted into that
63

broadcast, and were they distorted, were they doctored, or were they

out of context?

This goes to the merits of the case, and you said in your statement

you wanted to limit your discussion primarily to the merits of the

particular broadcast that was given.

Again, I repeat to you that this is what I am going to be watching

for, and I think the American public will.

If there are no more questions, the hearings will adjourn until

further notice.

(Whereupon, at 12 noon, the subcommittee adjourned, subject to

call of the Chair.)

SUBPENAED MATERIAL RE CERTAIN TV NEWS

DOCUMENTARY PROGRAMS

THURSDAY, JUNE 24, 1971

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON INVESTIGATIONS,

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE,

Washington, D.0 .

The subcommittee met at 10 :15 a.m., pursuant to call, in room 2123,

Rayburn House Office Building, Hon. Harley 0. Staggers (chairman)

presiding.

Present: Representatives Staggers, Pickle, Blanton, Springer, and

Shoup.

The CHAIRMAN. Dr. Stanton, we welcome you to the committee.

Thank you for coming.

We would like for you to identify the gentleman who is with you for

the record.

Dr. STANTON. With me today, Mr. Chairman, is Lloyd Cutler,

counsel to CBS.

The CHAIRMAN. The hearing will come to order.

We are here this morning to give some further consideration to a

matter about which much has been written and said. If the principles

at stake were not so vital to this Nation, we might not be here at all.

Dr. Stanton is a personal friend of mine of 20 years standing. I am

sure he knows there is nothing personal behind this subcommittee's

inquiry. But much as I and my colleagues might have wished to avoid

this situation, we find that we cannot do so consistent with the obligations we have undertaken to the American people.

The issues which have been raised in this proceeding go to the very

foundation of the American system of broadcasting as I will try to

make clear in this statement.

On February 23 and again on March 23, 1971, the CBS network

carried a news documentary program entitled "The Selling of the

Pentagon." As most people know by now, the program was controversial. for one thing, it provoked the criticism of those who thought it

was unduly biased against the public affairs efforts of the Department of Defense. I scarcely need repeat that neither this subcommittee nor its chairman has any interest in entering into this aspect of

the controversy. I have already made that point abundantly clear

elsewhere in the record of these proceedings.

The Pentagon documentary was controversial for other reasons, however, which have nothing to do with the particular point of view expressed on the program. Allegations have been raised and, in part at

least, sustained by sworn testimony and other evidence received by this

(65)
66

subcommittee, that the network engaged in some questionable techniques of persuasion. Such questionable manipulative techniques

allegedly included the rearrangement of the words of an individual

who was attempting to present a point of view at variance with that

espoused by the producers of the program. The result was to make him

appear to be answering questions in a different way than he in fact did

answer them during a filmed interview. In another instance, a military

officer was alleged to be making a public address containing improper

references to this Nation's foreign policy. In illustrating this allegation, the network presented the military officer apparently delivering a

segment of his public address. Subsequent disclosures seem to demonstrate that the officer's words were rearranged out of their original

order so as to make him appear to be delivering a statement which he

did not in fact deliver.

The laws governing broadcasting are already quite clear to the

effect that a broadcaster is not at liberty to simply deny access to the

airwaves to all those who might disagree with him. But with the

Pentagon documentary we have allegations suggesting the employment of a different technique for accomplishing the same thing.

Rather than bar the airwaves to those who might disagree with him,

here it is alleged that the broadcaster seemingly allowed such persons

to have their say. But in so doing the broadcaster manipulated and

rearranged their speech in such a way as to give the appearance that

they were making statements they never made and giving answers to

questions which were in fact not given. In some ways, it would be

better for such a person if he were not shown at all on television, for

through the use of such technical manipulations he can be made to

appear to have had his say and the public can be led to believe that

they have heard him out.

On this point, I will quote Mr. Lawrence Laurent, television critic

for the Washington Post:

Worse, from the position of the man who was interviewed on film, he appears

to be making statements—by himself—showing his face to the viewer in close-ups

that magnify statements. No matter how much of his thought has been deleted,

he is seen and heard making statements. "You said it. I saw you."

This is one of the important distinctions between television and

newspapers. The television broadcaster has the ability to present the

individual himself on the screen, and yet exercise control over what

he appears to say. Again, quoting from Mr. Laurent:

The electronic journalist claims the same right to edit and control his material

that the print journalist has had for centuries. But there is a difference in third

person reporting and in control of a person's own image and speech.

If the damage were only to the individual whose words were rearranged and distorted, the public issue here might not be so pressing.

But we must remember that such televised material customarily involves discussion of controversial issues of public importance. The

injury, therefore, is not confined to the individual in question. It is

shared by the general public. In the words of the narrator of the

Pentagon documentary:

Nothing is more essential to a democracy than the free flow of information.

Misinformation, distortion, propaganda, all interrupt that flow. They make it

impossible for people to know what their government is doing, which, in a

democracy, is crucial.
67

But the techniques of "distortion, misrepresentation and propaganda," do not become any less objectionable when they are employed

by those in control of mass media of broadcasting. The public has a

right to be forewarned of such techniques regardless of who employs

them.

Clearly this raises important issues concerning the adequacy of the

laws governing broadcasting. Present law and regulations do address

the subject of deception, but they do so in a very disjointed and

unorganized manner. Thus, sponsorship, if any, must be announced;

mechanical reproduction, if employed in the broadcast, must be disclosed. These provisions apply to news programing just as they do

to other types of broadcast. In addition, fraudulent and deceptive

advertising and quiz programing is forbidden. All of these provisions

of present law are of undoubted constitutionality. Furthermore, they

are quite similar to the legislative concerns involved in the present

matter.

All of these provisions reflect an understanding that the public has

a legitimate interest in knowing the relevant circumstances under

which material is broadcast.

With this in mind, and recognizing that existing law might not be

fully adequate to serve the public interest, this subcommittee determined to inquire into the serious allegations raised about the Pentagon

documentary. On April 7 the subcommittee issued a subpena to Dr.

Frank Stanton, president of CBS, calling for the production of such

materials as would enable the subcommittee to obtain the information

necessary to discharge its responsibilities. The subpena called for the

materials described therein to be produced on April 20. On April 8,

Dr. Stanton was duly served with the subpena. By letter dated that

same day, Dr. Stanton informed me that he would not comply. His

letter read in part:

We sincerely hope that your subcommittee will reconsider this matter and

modify the subpoena so that it calls for only such materials as were actually

broadcast and other information directly related thereto—which we do not object

to furnishing and which we will furnish on the date specified.

On April 20, a representative designated by Dr. Stanton appeared

for him and for the CBS network. He was provided with a statement

setting forth in some detail the jurisdiction and legislative concerns

of the subcommittee and the relevancy of the materials subpenaed.

That statement is already in the record of these proceedings, and I will

not repeat it now. It has been brought to the attention of Stanton,

it has been analyzed by CBS attorneys. I am sure he is fully acquainted

with its contents. Although it addressed itself to the original subpena

of April 8, it applies to the present subpena as well.

Dr. Stanton's representative informed the subcommittee that Dr.

Stanton and CBS declined to furnish the material called for in the

subpena, with limited exceptions. A filmed copy and a written transcript of the program were provided.

But, as the record of that April 20 meeting shows, the CBS representative also indicated that CBS would like to reconsider carefully

its position in the light of the subcommittee's statement of legislative

purposes. For its part the subcommittee requested that CBS provide a

full statement of the legal authority upon which it relied in conclud-
68

ing that it would not honor the subcommittee's subpena. It was agreed that 10 days would be allowed for further CBS consideration of the matter, and for the preparation of the requested legal memorandum by CBS.

I might say that CBS asked for that 10 days continuation and not this subcommittee.

Thereafter, on April 30, the subcommittee received a letter from

CBS transmitting certain additional information related to the subpena, together with a legal memorandum prepared by CBS attorneys. The legal arguments advanced by CBS have been carefully con- sidered and found to be without merit. To be perfectly frank, there has not been the slightest doubt raised as to the legitimacy of the subcommittee's legislative concerns in this matter or as to the relevancy of the subpenaed material to those concerns. Without objection,

I direct that a copy of the legal memorandum on these issues pre- pared by subcommittee counsel be inserted in the record of these pro- ceedings. This legal memorandum sets forth in some detail the legal basis for the subcommittee's action. I would also note that a copy of this memorandum has been supplied to CBS.

(See appendix G, p. 267.)

The CHAIRMAN. On May 26, 1971, the subcommittee met and deter- mined that the information and material thus far supplied by CBS

was satisfactory to meet some of the requirements of the original subpena. The original subpena of April 7 was accordingly withdrawn. A

new subpena was issued calling only for the material not yet supplied;

that is, the so-called outtakes. In issuing the new subpena, the subcom- mittee made clear that the outtakes desired were only those pertaining

to the actual broadcast.

Recalling Dr. Stanton's letter to me of April 8, which I quoted a few minutes ago, I hoped that further controversy in this matter could be avoided. Dr. Stanton had expressed the hope that the subcommittee

would withdraw its subpena and call only for such materials as were

actually broadcast and other in formation directly related thereto. The

subcommittee did, in fact, withdraw the first subpena. The present subpena does, in fact, call only for materials directly related to the broadcast. Dr. Stanton is here today in answer to the subcommittee's revised

subpena.

Today we are asserting that the public has a right to know, not only

by whom but how it is being persuaded. We have heard a good deal

of talk about something called legislative surveillance being involved

here. That term has not been precisely defined, but if it means public

scrutiny, then that is exactly what is involved.

This subcommittee has had occasion in the past to make inquiries

into certain questionable practices engaged in by television news organizations in transmitting information to the public. We have forthrightly reported the results of our inquiries. This has increased the

information available to the public on this vital question of how tele- vised news documentary programs are designed, produced, and presented. The availability of that information has resulted in some criticism being leveled at the television news media which, I have no

doubt, was unpleasantly sharp to those on the receiving end. But no

segment of the broadcasting industry has the right to insist that its

affairs be held sacrosanct and immune from public scrutiny and criti-
69

cism. It seems somewhat ironical to me that the First Amendment—

that great guarantor of the people's right to know—should now be

raised as a bar to a public inquiry. The conduct of the broadcast industry directly affects, as does no other industry, the future of this Nation,

the lives of its citizens, and the welfare of its children.

I don't think enough has been said about the public stake in broadcasting during the discussion which has been going on about this subpena controversy. The courts have repeatedly held that, under our system, the broadcaster is a fiduciary or trustee to the public. In one such

case Chief Justice Burger described this relationship in the following

words:

A broadcaster seeks and is granted the free and exclusive use of a limited and

valuable part of the public domain; when he accepts that franchise it is burdened

by enforceable public obligations. A newspaper can be operated at the whim or

caprice of its owners: a broadcast station cannot. After nearly five decades of

operation, the broadcast industry does not seem to have grasped the simple fact

that a broadcast license is a public trust subject to termination for breach of

duty.

The great power accorded to the broadcast industry is not just the

result of this award of a public trust, it is also the result of a great

investment on the part of the American people. American viewers

have invested more than $40 billion in television receivers; this figure

is more than 20 times as large as the total investment of broadcasters. If the public feels that it has the right to know more about

the technology of persuasion as it is practiced via television, I don't

think such feelings are unjustified.

Disclosure to the public of those things which• affect people's lives

and the lives of their children is the rule we must live by in this

country. The legislative process is showing a reawakening concern for

the people's right to know. Perhaps the most recent notable example

is the Freedom of Information Act which became law on July 4,

1967. Now, with only carefully limited exceptions, the public has a,

right to seek and demand information from its Government concerning conduct of the public business.

But, as distinguished consumer advocates have pointed out, it is not

only governmental agencies and departments that affect the lives of

American citizens. Activities of large corporations may equally affect

the lives of the people. And here, of course, we are considering the

activities of a large corporation which engages in broadcasting. Broadcasting is an activity uniquely affecting the public interest.

As I have pointed out, the courts have held that broadcasters are

trustees of the public, and they have enforceable public obligations.

But this position of trust, these enforceable public obligations will be

rendered illusory if the public cannot act through its elected representatives, cannot even inquire into the fundamental issue of the trustee's performance. Let me make one point clear—we act for the people.

As Alexander Hamilton once described the legislative process:

Here, sir, the people govern. They act through their individual representatives.

Today we are concerned with a television news documentary which

addressed the public on a vital question of public importance. The

program was not a mere recitation of dry facts, rather it was an earnest attempt to advise and persuade the electorate. The most telling
70

sequences of the documentary occurred when the public was advised

that it was witnessing actual events, and bona fide statements by persons responsible for, or having knowledge of, the activities being

criticized.

These segments were presented as bona fide evidence, much as a,

lawyer might present evidence to a jury. Allegations that such evidence was the result of manipulative techniques which rearranged,

transposed, and otherwise distorted the actual events or speech being

presented are serious indeed. We cannot prejudge such allegations.

Nor can we ignore them. We simply must have the facts. Fortunately,

in this case we need not enter into the sensitive area of disclosure of

confidential sources.

I believe the public will benefit from the information which will

be obtained, and, what is more, I believe they have a right to it. We

have requested the films and recordings which provide the best and

the only real evidence as to the events which were presented to the

public on the documentary. We have also asked for any written scripts

or transcripts which pertained to such material. By scripts and transcripts we do not have reference to internal CBS memoranda. As those

terms are used in the subpena they refer simply to written verbatim

accounts of the speech originally recorded on the films or tape

recordings.

All of this information is relevant to the subcommittee's legitimate

legislative concerns. It will also furnish a basis for evaluating the

regulatory policies of the Federal Communications Commission, and

the practicality and desirability of proposed legislation which is presently before the full Commerce Committee for consideration. I can

only hope that upon reflection Dr. Stanton will see the matter in the

same light with us. Be that as it may, we are here not to assert our own

personal prerogatives but to uphold the rights of the American people.

This is the oath we took when we assumed public office, and we are

not at liberty to retreat from the obligations we undertook in so doing.

This concludes my opening statement.

Dr. Stanton, prior to hearing your statement, as is customary in

these subcommittee hearing proceedings I will ask you to rise and

be sworn together with any of your associates who might testify this

morning.

Is he your lawyer?

Dr. STANTON. He is.

The CHAIRMAN. I don't believe he has the right to testify before

this committee unless you want him as a witness.

Mr. CUTLER. I would only comment, Mr. Chairman, on legal issues

which were raised and I don't think I need to be sworn for that purpose

but I would have no objection to being sworn.

The CHAIRMAN. I will swear you both then.

Raise your right hand. Do you solemnly swear or affirm that the

testimony you are about to give before this subcommittee is the truth,

the whole truth and nothing but the truth, so help you God?

Dr. STANTON. do.

Mr. CUTLER. I do.

The CHAIRMAN. You may be seated.
•

71

A copy of our subcommittee rules was mailed to you prior to today's

hearings and additional copies are available on the table in front of

you. You will note that witnesses in our investigative hearings may

be accompanied by their own counsel to advise them on their constitutional rights.

The subcommittee is primarily concerned with your testimony and

your views. I am sure counsel will respect our rules and limit his

participation to advising you on your constitutional rights.

I have asked counsel to identify himself and he already has.

In your testimony today, Dr. Stanton, we do not intend to limit you

in any way and you may give as full an explanation as you wish in

your answers. Just so that the record may be clear, I would ask that

you commence each answer, where appropriate, with either a yes or

a no.

I would also like to state for the record that our esteemed colleague

from the State of Washington, Mr. Brock Adams, is here with us

today as an observer to these proceedings and we have other members

of the committee present who have a right to sit in because they are

members of the full committee. We welcome them and are happy that

they could be with us.

Dr. Stanton, we will now hear your statement.

TESTIMONY OF FRANK STANTON, PRESIDENT, CBS; ACCOMPANIED

BY LLOYD CUTLER, COUNSEL TO CBS

Dr. STANTON. Mr. Chairman, members of the subcommittee, I appear here today on a most serious matter. I have great respect for the

Congress of the United States and for this important subcommittee.

I am mindful of my duty to comply with the requirements of a lawful

congressional subpena. But I also have a duty to uphold the freedom

of the broadcast press against congressional abridgement. The conflict

between these duties is the issue dividing us today. It raises a profound constitutional question going to the heart of the American

democratic process.

My appearance is in response to the subcommittee's subpena dated

May 26, 1971. That subpena directs me to appear for the purpose of

testifying and to bring with me "all film, workprints, outtakes, and

sound-tape recordings, written scripts and/or transcripts utilized in

whole or in part by CBS in connection with its documentary, 'The

Selling of the Pentagon', broadcast on February 23, 1971" except for

"materials relating to segments not shown therein" and "official

United States Government film that was utilized in the broadcast."

I would like to recapitulate the sequence of events that has led to

my appearance here, and then to address the central and serious issues

raised by your subpena.

On February 23 the CBS television network broadcast a documentary, "CBS Reports: The Selling of the Pentagon," describing the

public information activities of the Department of Defense. The broadcast was promptly acclaimed by many and sharply critized by others.

These criticisms were fully reported by CBS News.

On March 23, in response to the widespread public attention generated by the report, we rebroadcast it. At its conclusion, we broadcast a
72

22-minute postscript including earlier comments critical of the broad- cast by Vice President Agnew, Secretary of Defense Laird, and Chair- man Hebert of the House Armed Services Committee, as well as a re- sponse by Richard S. Salant, president of CBS News. On April 18, in view of continued public interest in the substantive issues raised by the broadcast, we broadcast a CBS News special re- port entitled "Perspective: The Selling of the Pentagon." This hour- long panel discussion presented contrasting points of view on the issues involved. Former Assistant Secretary of Defense for Public Affairs Arthur Sylvester and General S. L. A. Marshall, a military commen- tator and historian, generally supported the Defense Department's public information program; Senator Fulbright and Adam Yarmo- linsky, a special assistant to former Secretary of Defense McNamara,

were critical of it.

Secretary Henkin was also invited to appear and declined. Meanwhile on April 7, this subcommittee had issued a subpena to CBS demanding the delivery of "all film, workprints, outtakes, soundtape recordings, written scripts and/or transcripts" relating to the preparation of "The Selling of the Pentagon." On April 20, CBS fur- nished a film copy of the original broadcast and rebroadcast—with

postscript—as well as transcripts of those broadcasts. But CBS re- spectfully challenged the subcommittee's power to inquire by com- pulsory process into the editing of the broadcast and declined to pro- duce materials not actually broadcast. The subcommittee then allowed

CBS 10 days to make a fuller response.

On April 30, without waiving its objections, CBS voluntarily sup- plied the subcommittee with some general information unrelated to

the editing process. As you know, these included some inquiries as to

the payments of money on the broadcast, the names of the people on

the broadcast, and a sample of the release that we obtained from participants in documentaries of this type.

At the same time we supported our challenge to the subcommittee's

right of inquiry into this matter and we submitted an opinion of our

counsel that the compulsory demand for production of materials not

broadcast, for the purposes described in the chairman's statement of

April 20, was beyond the subcommittee's power because of the First

Amendment, and that CBS was under no legal duty to comply.

On May 26, the chairman advised us that CBS had "satisfactorily

met the requirements of paragraphs 1, 3, 4, and 5 of the April 7 subpena," but had failed to comply with paragraph 2, which called for

scripts, transcripts workprints, and other filmed materials not actually

broadcast. The subcommittee withdrew its April 7 subpena and issued

a new one. This May 26 subpena requires me to appear for testimony

and to produce the same materials called for in paragraph 2, except

that the letter accompanying the subpena disclaimed any interest in

transcripts and filmed materials of "interviews or events which did

not appear, even in part, in the actual broadcast."

We have carefully reviewed with our counsel the May 26 letter and

the accompanying subpena. They have advised us that in their opinion,

dated June 15, 1971, and submitted herewith, the subpena still

seeks to compel the production of materials compiled in preparing

and editing the documentary but not actually broadcast; that the purpose of the subcommittee investigation is still to make an official gov-
73

ernmental inquiry into the editing process employed in producing the

documentary; and that the subcommittee may not constitutionally

compel CBS to produce the subpenaed materials or give oral testimony for such a purpose.

The First Amendment states that "Congress shall make no law . . .

abridging the freedom of . . . the press." Clearly, the compulsory

production of evidence for a congressional investigation of this nature

abridges the freedom of the press. The chilling effect of both the subpena and the inquiry itself is plain beyond all question. If newsmen

are told that their notes, films, and tapes will be subject to compulsory

process so that the Government can determine whether the news has

been satisfactorily edited, the scope, nature, and vigor of their newsgathering and reporting activities will inevitably be curtailed.

Our objection does not depend upon establishing that the Government lacks power, under any and all circumstances, to subpena a

journalist or his unpublished materials. There are now pending

before the Supreme Court several cases centering on the issue of

whether the need of information for some important governmental

purpose can under certain circumstances be so compelling as on balance to outweigh the repressive effect of such a subpena. But this subcommittee's legislative purpose—to prevent distortions or to control

editing practices in broadcast news reports and thereby engage in

official surveillance of journalistic judgments—has no constitutional

warrant and therefore no benefit that can be balanced against the chilling effect of this subpena, let alone outweigh it.

Based on the advice of our counsel and our own conviction that a,

fundamental principle of a free society is at stake, I must respectfully decline, as president of CBS, to produce the materials covered

by the subpena of May 26. For the same reasons, I must respectfully

decline, as a witness summoned here by compulsory process, to answer

any questions that may be addressed to me relating to the preparation

of "The Selling of the Pentagon" or any other particular CBS news or

documentary broadcast.

We take this position as a matter of conscience, because of our obligation to uphold the rights guaranteed by the First Amendment. That

Amendment embodies our national commitment to freedom of the

press. It protects the rights of journalists, not to make them into a

privileged class, but to safeguard the liberties of us all by preserving

one of the most indispensable elements of responsible democratic government—the right to report freely on the conduct of those in authority. In Judge Learned Hand's famous phrase: "To many this is,

and always will be, folly; but we have staked upon it our all."

There can be no doubt in anyone's mind that the First Amendment

would bar this subpena if directed at the editing of a newspaper report, a book, or a magazine article. Indeed, the chairman has been

quoted as having specifically conceded this point. However, it is urged

that, because broadcasters need governmental licenses while other

media do not, the First Amendment permits such an intrusion into the

freedom of broadcast journalism, although it admittedly forbids the

identical intrusion into other press media. If broadcasters must comply

with such subpenas, broadcast journalism can never perform the independent and robust role in preserving those freedoms which the Constitution intended for American journalism. Only 2 weeks ago, in a
74

major case applying the First Amendment to protect a news broadcast,

the Supreme Court placed broadcast and print journalists on precisely

the same footing.

As broadcasters, it is our duty and responsibility in the public interest to resist any Government action that threatens to transform a free

and vigorous news medium into a controlled and timid one.

I shall, however, do my best to answer questions of the subcommittee

which do not seek to probe so deeply into the news process as to reach

specific journalistic practices or the editing of particular broadcasts.

The line is a difficult one to draw, and I hope the members of the subcommittee will bear with me as I deal with your questions. I hope we

can achieve a dialog consistent with the stand we feel compelled to

take as a matter of constitutional principle.

As we have 'previously indicated to the subcommittee, comments on

"The Selling of the Pentagon" have raised important issues as to the

practices employed, or that ought to be employed, in the editing of

documentary broadcasts. While responsible journalists may reasonably

differ concerning particular practices in particular cases, we do not

intend to ignore these differences or to shrink from continuing selfexamination of our own practices. What we do object to is being subjected to compulsory questioning in a Goverment inquiry, expressly

intended to determine whether this or any other CBS news report

meets Government standards of truth.

The objection I am making has been urged not only by CBS and not

only by those who believe that "The Selling of the Pentagon" was an

excellent and valuable piece of journalism. The same objection has

also been made by many groups and individuals, in and out of public

office, who have criticized the broadcast in whole or in part. Scores

of newspapers, representing the entire spectrum of political opinion

and varying in their views of the merits of the broadcast, have expressed the deepest concern in editorials strongly supporting our

position.

Leaders in the Nation's educational, civic, and religious life have

protested the inescapable implications of the subpenas addressed to

us. Professional associations representing every segment of journalism

have joined in the protest. These associations include the American

Society of Newspaper Editors, the American Newspaper Publishers

Association, the National Newspaper Publishers 

Association, 

the

American Association of Schools and Departments of Journalism,

the American Newspaper Guild, the Associated Press Broadcasters

Association the Association for Education in Journalism, the Association of

Association, 

Publishers, the Authors League of America, the

Radio Television News Directors Association, and Sigma Delta Chi.

Government officials, including the director of communications for

the executive branch, who criticized the broadcast, and the Chairman

of the Federal Communications Commission, have stated their opposition to the subpena.

I can assure you that we at CBS have not taken lightly either your

subpena or the concern that prompted it. We recognize that journalists

can make mistakes, that editing involves the exercise of judgment, and

that we and other journalists can benefit by criticism. But I respectfully submit that where journalistic judgments are investigated in a

congressional hearing, especially by the committee with jurisdiction
75

to legislate about broadcast licenses, the official effort to compel evidence about our editing processes has an unconstitutionally chilling

effect.

Let me close with the words of James Madison, written in 1799 and

quoted by Mr. Justice Brennan in his opinion announcing the Court's

decision 2 weeks ago applying the first amendment to protect a news

broadcast:

Among those principles deemed sacred in America, among those sacred rights

considered as forming the bulwark of their liberty, which the Government contemplates with awful reverence and would approach only with the most cautious

circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press. That this liberty is often

carried to excess; that it has sometimes degenerated into licentiousness, is seen

and lamented, but the remedy has not yet been discovered. Perhaps it is an evil

inseparable from the good with which it is allied; perhaps it is a shoot which

cannot be stripped from the stalk without wounding vitally the plant from which

it is torn. However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America. [Emphasis

in original.]

The CHAIRMAN. Thank you, Dr. Stanton.

Dr. Stanton, I may have to ask you to repeat yourself somewhat but

I want the record to be decidedly clear. I would like to ask you a few

questions now.

Dr. Stanton, did you hear my opening statement in which I summarized our jurisdiction and legislative concerns in this matter?

Dr. STANTON. Yes, I did.

The CHAIRMAN. At the subcommittee meeting held on April 20, 1971,

I provided a more detailed statement of our jurisdiction and legislative concerns and the relevancy of the material subpenaed to those concerns. This statement was read and delivered to Mr. John Appel whom

you designated to appear before the subcommittee in your behalf. That

statement had reference to the subcommittee's original subpena of

April 7 but it applies to the present subpena as well. Are you familiar

with that statement?

Dr. STANTON. Yes, I am.

The CHAIRMAN. Have you carefully considered both of these statements?

Dr. STANTON. Yes, I have.

The CHAIRMAN. On May 27, 1971, you were served with a duly

authorized subpena of this subcommittee. Without objection, I direct

that the full text of the subpena be inserted into the record at this point

together with proof of service.

(The subpena follows:)

62-142 0-71----6
76

ORIGINAL

3Y AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE

UNITED STATES OF AMERICA

re AMES F. BRODER and MARK RAABE, SPECIAL SUBCOMMITTEE ON INVESTIGATIONS,

COMMITTEE ON INTERSTATE & FOREIGN COMMERCE,

You are hereby commanded to summon DR. FRANK STANTON., President,. Columbia

3roduaingAysttn, Inc„.51 W. 52nd Strget, New York, V.

to be and appear before the SPECIAL SUBCOMtlITTEf 0 INVESTIGATIONS tvested under 

authority of H.Res. 170, 92nd Cong.) of the Interstate & Foreign Commerce

Committee of the House of Representatives of the United States, of which the Hon.

HARLEY 0. STAGGERS j chairman, for the _purpose

of testifying and to bring with him the materials described in the 

attachment hereto)

in their chamber in the city of Washington, on ROOM

R&Y.1311Ria_111.1.S.E , at the hour of 1QCLAM 

then and there to testify touching matters of inquiry committed to said Committee; and he is

not to depart without leave of said Committee.

Herein fail not, and make return of this summons.

Witness my hand and the seal of the House of Representatives

of the United States: at the city of Washington, this

day of 19_21.

Attest:

Clerk.

Chairman.
77

ATTACHMENT INCORPORATED INTO THE SUBPOENA DATED

MAY 26, 1971, ISSUED BY HARLEY 0. STAGGERS,

CHAIRMAN, SPECIAL SUBCOMMITTEE ON INVESTIGATIONS

OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN

COMMERCE, TO DR. FRANK STANTON, PRESIDENT, COLUMBIA

BROADCASTING SYSTEM, INC., 51 WEST 52nd STREET,

NEW YORK, NEW YORK.

All film, workprints, outtakes, sound-tape recordings, written scripts and/or transcripts utilized in

whole or in part by CBS in connection with its documentary, "The Selling of the Pentagon," broadcast

on February 23, 1971. PROVIDED, that the foregoing

be limited to all such materials relating to the

actual broadcast and not include such materials relating to segments not shown therein, and PROVIDED

FURTHER, that where official United States Government

film was utilized in the broadcast, full identification of all such film may be supplied in lieu of the

actual film.
78

COPY

Subpena for Dr. Frank Stanton, President

Columbia Broadcasting System, Inc.

. • . •••••••••••••••••..

before the Committee m the

Special Subcommittee ,on,Investiiations,

of the Interstate and Foreign Commerce

Crommittec

upon Mr. Leon Rice, Minaging Served

Attorney, In his office on the 36thl1,00f

of CBS, Inc., 51 West 52 Itreet, New York, 

N.Y10019

at 12:16 PM, May 27 1971.
79

The CHAIRMAN. Have you brought the materials with you which

were called for by the subpena of May 26?

Dr. STANTON. No. sir, Mr. Chairman; I have not.

The CHAIRMAN. Since you are the president of CBS, are the materials requested in the subpena subject to your control so that if you

wished you could have brought them here today?

Dr. STANTON. Yes; they are.

The CHAIRMAN. Is there any physical or practical reason why these

materials have not been provided?

Dr. STANTON. No; there is not.

The CHAIRMAN. Is your decision not to bring with you these materials made with full knowledge of the possible action that may be

taken against you for your refusal?

Dr. STANTON. Yes; they are.

The CHAIRMAN. Do you realize that as a result of your refusal to

comply with the subpena you may be found to be in contempt of the

House of Representatives with all the consequences that flow from

such contempt?

Dr. STANTON. Yes; I do.

The CHAIRMAN. Knowing this, do you persist in your refusal to

provide the subpenaed materials?

Dr. STANTON. Yes; I do.

The CHAIRMAN. Does the decision not to provide the subpenaed

materials reflect a decision of the management of CBS?

Dr. STANTON. Yes; it does.

The CHAIRMAN. So that the record may be clear on this point, speaking as the chairman of this subcommittee I hereby order and direct

you to comply with the subcommittee subpena and to provide forthwith the materials therein described. What is your response?

Dr. STANTON. I respectfully decline.

The CHAIRMAN. At this point, Dr. Stanton, it is my duty to advise

you that we are going to take under serious consideration your willful

refusal today to honor our subpena. In my opinion you are now in

contempt.

Notwithstanding your refusal to produce the material subpenaed

we have also asked for your personal appearance and we are now

going to receive testimony from you on the various serious matters

involved here. At this point I would ask our counsel, Mr. Manelli,

to begin the questioning.

Mr. Manelli.

Mr. MANELLI. Dr. Stanton, the courts seem to be very clear over

the years in holding that the broadcaster is the trustee for the public.

Without extensively quoting from those decisions I will quote a couple

of short ones here.

McIntire v. Penn Broadca8ting, which is a 1945 court of appeals

case: "It is plain that the broadcasting station must operate in the

public interest and must be considered a 'trustee' for the public."

The Red Lion case in 1969: "It does not violate the first amendment

to treat licensees given the privilege of using scarce radio frequencies

as proxies for the entire community."

Office of Communication8 of the United Church of Chri8t v. FCC,

which is a 1969 case: "By whatever name or classification, broadcasters
80

are temporary permittees—fiduciaries—of a great public resource and

they must meet the highest standards which are embraced in the public

interest concept."

I was wondering, Dr. Stanton, if you yourself agree with this proposition that the broadcaster is indeed a trustee or a fiduciary for the

public?

Dr. STANTON. Yes, I do, but we also have the responsibility of upholding the First Amendment.

Mr. MANELLI. The trustee or fiduciary rationale; is that somewhat of

a figure of speech or do you feel that that actually pertains to an actual

legal relationship?

Dr. STANTON. Mr. Manelli, you and members of the subcommittee

know that I am not a lawyer but we don't shrink from our responsibilities as licensees to operate in the public interest.

Mr. MANELLI. What I am getting at in these questions is as a practical matter doesn't the trustee relationship of necessity require that

the trustees, which in this case are the broadcasters, are answerable to

the public for the manner in which they carry out that trust?

Dr. STANTON. That is correct.

Mr. MANELLI. That is correct.

I will ask you if you agree that individual members of the public

don't have the time, the financial resources or the availability to them

of the compulsory legal process necessary to make effective inquiries

to broadcast networks? Isn't it reasonable for them to expect that their

elected representatives will see to it that these inquiries are made?

Dr. STANTON. Are you asking me to agree with both parts of that

statement?

Mr. MANELLI. Let's take it one at a time. Would you recognize yourself that individual members of the public, approaching singly in their

own private capacities, don't have the funds, the time, or the compulsory legal process at their disposal to make effective 

Dr. STANTON. I cannot subscribe to that statement, sir.

Mr. MANELLI. Would you explain that, why you can't? Do you feel

that the public does have the ability?

Dr. STANTON. I think the public does have the ability through the

courts to come to us and also through the FCC.

Mr. MANELLI. In what way would they come through the courts?

In what way would they be able to inquire of a network how it was

discharging its trustee responsibilities through the courts?

Dr. STANTON. In specific instances the individual could take action

against the broadcaster by going to the court.

Mr. MANELLI. So you do feel that the public does have some ability

to address themselves to the networks?

Dr. STANTON. I do.

Mr. MANELLI. Do you think it is reasonable for the public to expect

that the elected representatives that they have'entrusted with the conduct of public affairs will also make inquiries?

Dr. STANTON. Will make requirements?

Mr. MANELLI. Inquiries.

Dr. STANTON. Make inquiries, I am sorry. I am having difficulty understanding what you are saying.

Mr. MANELLI. Let me repeat that.

Dr. STANTON. Yes.
81

Mr. MANELLI. Just so the record will be clear, I will repeat the

question.

Is it reasonable for the public to expect that Congress will also make

inquiries to the networks when the occasion seems to be in the public

interest to do so?

Dr. STANTON. I repeat my answer. It is "Yes."

Mr. MANELLI. It is reasonable for them to expect it?

Dr. STANTON. It is.

Mr. MANELLI. Do you see anything inconsistent with that position

and the position you are taking with respect to the present inquiry?

If it is reasonable for the public to expect their elected representatives

to make inquiries of the networks 

Dr. STANTON. I think it depends upon the nature of the inquiry.

Obviously I recognize the inconsistency between the statement I just

read and the answer I just gave but I think there are inquiries that are

proper and I think there are other inquiries that are not proper.

Mr. MANELLI. Who will define which inquiries are proper?

Dr. STANTON. In the end I suppose the courts will.

Mr. MANELLI. Do you think there is anything inconsistent with the

judicially described trustee relationship and you decision to determine

those areas in which you will permit public representatives to make

inquiries?

DT. STANTON. No, sir.

Mr. MANELLI. Returning just for a minute to your previous point

about the individual members of the public making inquiries, would

you have the same objections to an inquiry of this kind if it were

made by a private citizen or by a group so that there would be no

overtones of governmental action?

Dr. STANTON. It would depend upon the circumstances involving

this particular investigation or inquiry.

Mr. MANELLI. Let's take this one. Let's take this particular one.

Dr. STANTON. If this committee were still continuing its investigation and we were to respond to an individual or to a group, nongovernmental, according to your question, I would have some hesitation

about it only because we would be responding against the background

of the inquiry that you now have underway. Let's assume for the

moment that we were in the open area and that you were not having

this inquiry. I would not object to responding to an individual.

Mr. MANELLI. Well, would you respond to an individual who made

the same inquiries of you that the subcommittee is making?

Dr. STANTON. It would depend upon the situation. I would have to

make that judgment on a case-by-case basis.

Mr. MANELLI. Let's look at it hypothetically as we are speaking but

let's make it on this case. Let's suppose that an individual or a small

group of individuals having no governmental status were to address

inquiries to you in every way similar to the inquiries that are addressed by virtue of the subcommittee's subpena • in other words, 

in and ask if they could look at the material, that they were theycomeoncerned, and there would be no question of first amendment or governmental action there.

Dr. STANTON. We have had, as you no doubt know, a number of

inquiries from individuals about the broadcast stimulated in part by
•

82

the original broadcast and stimulated in part by criticisms which

have been published on the broadcast. We have withheld responding

to those inquiries in this specific case because we were doing so against

the backdrop of this inquiry. Once this investigation has been completed, it is our intention to respond to them. They do not include, however, coming in to examine the outtakes.

Mr. MANELLI. Of course that reverts back to the present situation

and your answer is that with the backdrop of this investigation you

are not addressing yourself to private individuals' inquiries. But my

question was if you had been originally approached by a private person or a small group of people and they had asked to see the same

material and make the same inquiries as the subcommittee is now making, what would have been your response?

Dr. STANTON. We would have denied them.

Mr. MANELLI. SO—

Dr. STANTON. If I understand your question—that is would they

have the right to go in and take the outtakes?

Mr. MANELLI. They would not have the right, let's say they came

and asked for it.

Dr. STANTON. I understand.

Mr. MANELLI. You would not have given them?

Dr. STANTON. No.

Mr. MANELLI. So if these materials are ever to enter into an area

where the public becomes aware of their contents, it will have to be,

will it not, through compulsory process, through a congressional in

? I think you have just said that you would not voluntarily give

these to private persons.

Dr. STANTON. That is right. That does not mean that we might not

give them to the individual who was involved in the broadcast, but I am

talking now about any individual.

Mr. MANELLI. A citizen who is not involved in the broadcast but

who feels concerned, for whatever reason. That is the hypothetical

situation.

Dr. STANTON. I think there are several ways that we could insure

the individual of the answers that he is seeking, but if he persisted in

asking to see all of the outtakes and all of the material, the probabilities are that we would deny that.

Mr. MANELLI. Mr. Chairman, I would like to introduce in the record

two series of correspondence that the subcommittee has had provided

to it. The first one is copies of correspondence between Mr. Walter J.

Cunningham of New York wherein he attempted in behalf of the

neighborhood group to elicit—not to elicit but to review outtakes with

respect to the 1968 Democratic Convention.

According to the correspondence this individual had become aware

of a newspaper column by Jack Anderson, I believe, which mentioned

outtakes and which also specified what those outtakes contained and

he requested of CBS permission to examine those and referred in his

letter to this column by Jack Anderson. I won't read all of the correspondence but I will—

Mr. CUTLER. Mr. Chairman, could the witness be provided with the

letter that is to be introduced in evidence if he is to be questioned

about it?

A

4
•

83

Mr. MANELLI. I don't intend to question Dr. Stanton about this

particularly but merely ask him for a comment. We do have a copy.

The CHAIRMAN. It will be introduced into the record without objection.

(The material referred to follows:)

LAKE RONKONKOMA, N.Y., May 19, 1971.

Hon. HARLEY 0. STAGGERS,

House of Representatives,

Washington, D.C.

Sin: Enclosed are photostats of _correspondence I had with CBS News during

the latter part of 1969. As of this date, I have not received an answer from Dr.

Stanton, although I have the postal receipts of his receiving my letters.

I believe this correspondence will prove useful to you in your controversy with

CBS. The letters are in sequence. If you review their contents, you will notice

that CBS makes several ambiguous and contradicting statements as pointed out

in my letters. Copies of all my correspondence to CBS News were sent to Dr.

Stanton.

I would suggest that you ask Dr. Stanton his policy concerning the viewing of

film strips not already viewed by the public, and I am quite sure his answer or

answers will not coincide with his Vice President (David Klinger) because Dr.

Stanton publicly advocates an open government, but his company's policy contradicts his public statements. Very interesting.

Sir, you can use this correspondence as you see fit. I only ask that you somehow allow the public to view news in its entirety not what someone believes we

should see.

Respectfully,

WALTER J. CUNNINGHAM.

[From the New York Times, Dec. 16, 1969]

STANTON WANTS TV To COVER CONGRESS

Dr. Frank Stanton, president of the Columbia Broadcasting System, called last

night for greater access by broadcasting to the significant proceedings of Congress and the Supreme Court.

Under current rules, the broadcast media are barred from House of Representative Committees, the floors of both houses of Congress and the Supreme

Court.

Dr. Stanton's proposal was made in an address at the Waldorf-Astoria Hotel

to the Advertising Council, which gave him its annual public service award.

"The only way we can keep the right to know alive is by expanding it," Dr.

Stanton asserted, "making sure that our citizens know more about our Government and its actions, not less."

Noting that he was receiving the award on the 178th aniversary of the Bill

of Rights, Dr. Stanton warned that those rights were being jeopardized by "Big

Brother."

In an apparent reference to Vice President Agnew's recent criticisms of the

press, Dr. Stanton said subsequent assurances that the purpose of the attacks

was to, further discussion "ring hollow when their sources and pattern, not to

mention their language, are considered."

[From the Long Island Press, Nov. 5, 1969]

TV AND CHICAGO '68

(By Jack Anderson)

WASHINGTON—House investigators, after an exhaustive review of the TV coverage of last year's Democratic convention, have concluded that the TV networks

seemed hostile to the Democratic party and that cautious legislation is needed to

prohibit "the falsification of purportedly bona fide news events."

•
84

In a confidential, 64-page report to the House Commerce Committee, Counsel

Daniel Manelli and Chief Investigator James Kelly charge that the TV coverage

seemed to present "a one-sided picture which in large measure exonerates the

demonstrators and protestors."

Acknowledging that their judgments are "subjective" and that some contrary

evidence is available, the staff suggests that the networks "had deliberately

sought out to interview those with known biased feelings against the conduct

of the convention and the city government" and "had deliberately withheld from

the air film and video tape material which would have been derogatory to the

demonstrators."

CBS reel 20-5, for example, showed the beginning of the conflict between the

police and hippies. One of the announcers declares: "They are assaulting police

lines."

"When the material was presented over the air," reports the House sleuths,

"no reference was made to the above quoted remark, nor was any scene of such

an assault visible." Shots of material raining down from the Hilton Hotel onto

the heads of the police and news camera crews were also available but not

broadcast.

Another unused CBS reel, NC23-9, shows the demonstrators in an aggressive

mood. Then the voice of an announcer is heard shouting: "They're starting to

throw stuff fellows. Hey Dick, I need a helmet."

In CBS reel NC094, the demonstrators begin chanting at Democratic delegates returning from the convention. A CBS commentator reports: "The crowd

has an American flag upside down, the signal of distress at sea. Most of the

delegates are stunned by the scene . . ."

Then a voice is heard giving instructions: "Stand by for trouble. Otherwise

we don't start."

A minute later, the voice repeats: "We're not going to get any of this stuff

on . . . unless something happens."

Another film strip, 235-896, shows a man with a bandaged head glaring at the

camera. Then a woman's voice is heard, apparently referring to the bandage:

"That's not real, that's not real."

"There have been a number of allegations," adds the confidential report, "that

demonstrators provided themselves with bandages for the benefit of the cameras

so as to give the impression that widespread injuries had been inflicted by the

police."

One witness told House investigators that he saw a demonstrator hurl a

wooden sawhorse at a policeman, who charged the demonstrator, struck him

and took him into custody. The witness said that only the officer's violence

against the demonstrator was shown on TV as if it were an unprovoked assault.

Later the book "Chicago Eyewitness" published photographs of the sawhorse

in midair with the policeman's arms outstretched. The captions alleged that the

officer was heaving the sawhorse at the crowd.

"Upon inspection of the photographs," assert the investigators, "it seems clear

that it is the police officer who is the target of the flying sawhorse." Identified

and interviewed, he confirmed that he had stretched out his arms to ward off

the sawhorse not to throw it.

"While many of the major commentators spoke at length concerning the

shock they felt concerning what was happening to the young demonstrators

downtown," adds the staff report, "little or no comment was made concerning

profanity, obscene signs and gestures, and physical abuse employed by the

demonstrators to provoke the police."

The report concludes: "In general, there seems to be substantial evidence of

animosity by members of the television news organizations against the Democratic party, or at least against certain of its prominent members, and the administration of the city of Chicago.

"This seems to have been reflected in the slanting and the reporting of the

events as they took place. The staff has reviewed the television news coverage,

both broadcast and out-takes (unused shots), and has spoken with people who

were witnesses to the disturbances in downtown Chicago.
I.

85

"It does seem in retrospect that the picture presented over the networks did not

place sufficient evidence before the public as to the nature and motives of the

demonstrators . . .

"On principle, it does not seem logical to argue that the public, which is already

entitled to protection against deceptive commercial messages, should not be entitled to protection against deceptive messages of a political or ideological

nature."

The remedy: The staff delicately proposes legislation that would prohibit the

falsification of news events without infringing upon press freedom.

LAKE RONKONKOMA, N.Y., November 13, 1969.

Mr. FRANK STANTON,

President, Columbia Broadcasting Co.,

New York City, N.Y.

DEAR SIR: I am writing you this letter requesting your assistance in obtaining

some C.B.S.-T.V. films of last year's Democratic convention in Chicago. The

specific films I am referring to are the one's mentioned in Jack Anderson's column

in the Long Island Daily Press, dated Wednesday, November 5, 1969, C.B.S. Reel

20-5, NC 23-9, NC 094 and film strip 235-896.

I am very interested in reviewing these films in their entirety, due to the

grave questions raised by the House Commerce Committee concerning the editing

that was done prior to their being presented to the public over your network.

I have access to several professional cameramen who have volunteered their

services to present these films to our neighborhood group, and I will be personally

responsible for their safety. Therefore, I believe that in the interest of both your

network, in attempting to be fair and accurate, and the right of the public to see

the complete story of what really happened in Chicago, I know you will not deny

this request.

Hoping to hear from you shortly, I remain

Respectfully yours,

WALTER J. CUNNINGHAM.

CBS NEWS,

New York, N.Y., December 2, 1969.

Mr. WALTER J. CUNNINGHAM,

Lake Ronkonkoma, N.Y.

DEAR Mn. CUNNINGHAM: I have your November 13 letter to Dr. Stanton. It

was referred to us because CBS News produced the film footage in which you are

interested.

Material in our film library is available for outside use, subject only to specific

charges and conditions which are applicable to all users. One of those conditions,

incidentally, is that outtakes are not available.

Unfortunately, however, our film coverage of the Chicago convention was subpoenaed in connection with the litigation now pending in the U.S. District Court

in Chicago and has not yet been returned to us. When it is, hopefully in the near

future, it will be placed in our library and become available for use. If you are

interested in purchasing a print, our Archivist, Samuel Suratt, will be delighted

to give you the requisite information as to costs and procedures.

I might add, parenthetically, that, in our judgment, our broadcasts of the

Chicago proceedings did present a fair, accurate and complete picture of what

really happened. When the footage referred to by Mr. Anderson is returned to

us, we shall examine it carefully to see whether there is anything in it that

would indicate otherwise.

Very truly yours,

DAVID KLINGER.

LAKE RONKONKOMA, N.Y., December 4, 1969.

Mr. DAVID KLINGER,

Vice President, Administration,

CBS News, New York, N.Y.

DEAR SIR: Received your letter dated December 2, 1969, which attempted to

answer my request for films of the riots during the Democratic National Convention in Chicago 1968. I'm confused about your letter. It contains several

ambiguous statements, most importantly it does not answer my original request.
86

I asked Dr. Stanton if the films mentioned by Mr. Anderson in the Long Island

Daily Press were available to my neighborhood organization for viewing. The

letter you sent says in the opening sentence of the second paragraph that material in your film library is available for outside use, subject to certain restrictions. In the last sentence of the same paragraph, you state that outtakes are

not available. My question to you is, "Are the films available or not, and if not,

why?"

In the third paragraph of your letter you state that film coverage of the

Chicago Convention are involved in litigation. You did not state that the films

involved in the litigation are the ones that I requested. You say that after the

court action is taken, they will be available for use. How can that be, when in

your previous paragraph you said that outtakes are not available. As you can

see my request is still unanswered.

In the fourth paragraph, you state that the news reports were fair and accurate,

then you contradict yourself by stating that you will review the films to see if

there is something to indicate otherwise. If this is true, then how can you state

that the broadcast was fair and accurate if you are not yet sure (16 months later)

that it was.

I only asked to view some films that your network had taken, nothing more, but

apparently you choose to be ambiguous in your answers. Therefore, I am going to

continue this correspondence until I get a satisfactory answer. You leave me no

other choice. I only hope and pray what appears to be emerging from your answer

to me is not an attempt by you to control the news.

Hoping to hear from you shortly, I remain

Respectfully yours,

WALTER J. CUNNINGHAM.

CBS NEWS,

New York, N.Y., December 11, 1969.

Mr. WALTER J. CUNNINGHAM,

Lake Ronkonkoma, N.Y.

DEAR MR. CUNNINGHAM: I have your December 4 letter.

I don't agree with your conclusion that my December 2 letter is ambiguous. But

I am willing to take another stab at clarifying what seems to be confusing you.

The film footage involved in the Chicago litigation does include the footage

requested by you. When it is returned to us, it will be placed in our library. We

will then determine, by looking at the reels mentioned by Mr. Anderson, how much

of the footage in those reels was broadcast. The broadcast portion, excluding any

which contains the faces or voices of our correspondents, will be available for

purchase. It is a company policy of long standing to sell neither outtakes nor

broadcast footage which has the faces or voices of correspondents.

We are convinced, as I told you, that our broadcasts of the Chicago proceedings

did present a fair, accurate and complete picture of what really happened. We

believe there is nothing in the footage mentioned by Mr. Anderson that would

demonstrate otherwise. But we want to re-examine it in the light of the comments

made with respect to it. I do not see this as a self-contradiction.

Very truly yours,

Mr. DAVID KLINGER,

Vice President, Administration, CBS News,

524 West 57th Street, New York, N.Y.

DAVID KLINGER.

LAKE RONKONKOMA, N.Y., December, 13, 1969.

DEAR MR. KLINGER: Received your letter dated December 11, 1969. I appreciate your attempt to be more concise.

I would like to restate my position in this matter. My original request of viewing the films mentioned in Mr. Anderson's column in the Long Island Press still

stands, and is the primary point of the correspondence.

We will concede to you the fact that we are not concerned with the film footage

already publicly presented on your news broadcasts, but are keenly interested in

the film not presented publicly.

The new conditions presented in your letter of December 11, which were not

in your previous reply of December 2, concerning the conditions needed before
87

films can be viewed, only add more suspicion as to the real intent manifested

by these conditions.

If, as you say in your editorials, you are gravely concerned with censorship

in any form upon the news media, are not the conditions mentioned in your

correspondence a form of censorship? Do they not put all kinds of restrictions

upon people such as our organization to view a public happening, which we

have seen only in part, the part that your network wanted viewed? "Who decides what we are to see?" When, and how much. These are very grave questions.

I hope these problems will not remain unanswered, but I pose them before

you so that you can see the situations that are arising from within our organization concerning your apparent insensitivity to our requests. It is for these reasons that we will continue this fight. In closing, I ask you again! Can we view

the films already mentioned in this letter or not. You have still failed to answer.

Hoping that we can bring this correspondence to a satisfactory conclusion

shortly, I remain.

Respectfully yours,

WALTER J. CUNNINGHAM.

CBS NEWS,

New York, N.Y., December 22, 1969.

Mr. WALTER J. CUNNINGHAM,

Lake Ronkonkoma, N.Y.

DEAR MR. CUNNINGHAM: Your December 13 letter says that I "have failed to

answer" your request to view the outtakes, i.e. the footage which was not broadcast. Each of the two letters I have written to you states specifically that outtakes are not availp ble for viewing by you. Footage which has not been broadcast corresponds to the notebook of a newspaper reporter. Those notebooks, for

sound journalistic reasons, are not volunteered for outside scrutiny—and neither

are our outtakes.

Very truly yours,

DAVID KLINGER.

[From the Long Island Press, Dec. 16, 1969]

CBS CHIEF URGES TV, RADIO COVER CONGRESS, COURT

Frank Stanton, president of the Columbia Broadcasting System, called last

night for an end to the ban on television and radio coverage of Congress and the

Supreme Court.

Warning of "contrived government attacks on both the degree and the extent

of the freedom of the press," he said, "the only way we can keep the right to

know alive is by expanding it . . . making sure our citizens know more about

our government and its actions, not less."

Current rules bar the broadcast media from house committees, the floors of

both houses of Congress and the Supreme Court. Stanton said television and radio coverage of all significant proceeding could begin "tomorrow morning . . .

No technical innovation, no vast investment are required—only the will to do

it."

He made his proposal in an address before the Advertising Council, which presented him with its annual Public Service Award.

Stanton cited the U.S. Senate's Gulf of Tonkin resolution of August, 1964,

which empowered President Johnson to escalate American military involvement

in Vietnam, and he pointed out that Americans could not witness the debate on

television or radio.

"They were prohibited, by archaic structures, from witnessing the discussion

in their own Congress," he said.

Stanton said: "To limit television's role in communications on the ground that

it would in any important way alter the standards under which our elected or

appointed officials conduct themselves is a wholly untenable proposition . . . To

do anything else would be not to report what is happening but to distort it—to

decide in advance that some people and some occurences cannot stand public

scrutiny."

Stanton alluded to Vice President Agnew's recent criticism of television and

the press and said, "subsequent assurances that the purpose of these attacks

were merely to stimulate discussion of media performance, and thence selfimprovement, ring hollow."
88

The CBS president warned: "The real danger is not theoretical but coldly

practical—it is the pointed reminder that Big Brother, the government—is keeping its eye on you and if you don't do what it says is best, you'll be in trouble."

LAKE RONKONKOMA, N.Y., December 29, 1969.

Dr. FRANK STANTON,

President, Columbia Broadcasting Co.

New York City, N.Y.

DEAR DR. STANTON: I requested, in a letter to you dated November 13, as to

the availability of certain film footage covering the riots in Chicago. My request

was forwarded to Mr. Klinger for further clarification. Ensuing was the exchange of several letters between Mr. Klinger and myself culminating in the

enclosed photostat.

I am particularly concerned with the last sentence in the photostat. Excerpts

of the speech you made before the Advertising Council on December 15, which

I was fortunate to hear, stated that you believe the total actions of Congress

and the Supreme Court should be held for public scrutiny, to deny this right is

to distort the happening. I cannot reconcile your speech with Mr. Klinger's

denial of my request. Therefore, I am calling upon you to clarify this apparent

contradiction of your policy towards public broadcasting. I suggest you review

all the correspondence between Mr. Klinger and myself before arriving at your

decision. After doing this, I know you will rule in our favor. We as citizens have

the right to view a public happening in its entirety, otherwise as you say it

becomes distorted.

Hoping to hear from you shortly, I remain

Respectfully yours,

WALTER J. CUNNINGHAM.

LAKE RONKONKOMA, N.Y., December 29, 19,69.

MT. DAVID KLINGER,

Vice President,

Administration, CBS News, New York, N.Y.

DEAR Mn. KLINGER : Your letter of December 22, was received with regret,

but no surprise. We knew you were trying to say no while not being too specific.

You failed to answer several other questions that were posed in my December

13 letter.

Inconsistencies in your correspondence continue. Your December 11 letter

states that the broadcast section of the film footage can be purchased, now you

say outtakes are not available for outside scrutiny. The letter of December 22

says that viewing is not permitted because of Sound Journalistic reasons, this

contradicts your correspondence of December 11, in which you say viewing of the

unbroadcast portion is prohibited because of company policy. Which is it? As for

the faces and notebooks of reporters being reasons for not honoring our request is

really only a continuation of your ambiguity.

"What are Sound Journalistic reasons?" You apparently overlooked clarifying that statement.

Simply, Mr. Klinger, you are censoring and controlling the news and for that

reason we are contacting Dr. Stanton to ask him if this is also his policy. We

will send him a photostat of your December 22 letter. We hope your network will

reconsider our request and not continue this indifference.

Respectfully yours,

WALTER J. CUNNINGHAM.

Mr. MANELLI. I am going to provide Dr. Stanton with this series of

correspondence and I will read from the letter he received from CBS.

This is a letter dated December 2, 1969, from—it looks like Mr. David

Klinger, vice president of administration, where he says:

Material in our film library is available for outside use, subject only to

specific charges and conditions which are applicable to all users. One of those

conditions, incidentally, is that outtakes are not available.

I offer this for the record. Mr. Chairman.
89

I would ask after you get a copy of it, Dr. Stanton, if you can respond to one brief question.

Dr. STANTON. Just from what you said so far, Mr. Manelli, it seems

to me this is for an entirely different purpose than for judging editing

practices or news judgments in the composition of a broadcast.

Mr. MANELLI. I am not sure that this was involved but let's assume

that this Mr. Cunningham wanted to look at the outtakes to see if there had been material excluded from a broadcast which he thought

should have been included.

Let me withdraw that question because it is really not too pertinent.

The statement is made in the CBS letter that outtakes are not pro- vided, that you do upon payment of a reasonable charge permit people

to come in and see film material but that outtakes are not provided. It

does not seem to qualify that statement by saying that depends on why

you want to see them. It is a flat statement. Is that the CBS policy?

Dr. STANTON. Mr. Manelli, I think I would like to study this material

and I would be glad to study it and provide that comment for the record.

Mr. MANELLI. The comment being the present CBS policy on public

viewing of outtake material.

Dr. STANTON. We will supply that information for you.

(See appendix H, p. 350.)

Mr. MANELLI. There is a second similar letter which I will just refer

to and offer for the record, Mr. Chairman, and then make available to

Dr. Stanton. This is a series of letters to CBS dated March 20 and April

5, 1971, from an organization entitled "Accuracy In Media, AIM." This

is a self-described, nonpartisan, nonprofit organization to promote

accuracy in news reporting. That organization addressed CBS concerning the Pentagon documentary and provided the list of 50 questions raising various issues on the documentary.

The reply from CBS was that a comprehensive reply was being

assembled to all charges being made against the program and that a

copy would be provided to the Accuracy In Media group at such time

as we determine its release is appropriate.

I offer this also, Mr. Chairman, as another example of an inquiry

that was made by a nongovernmental group.

The CHAIRMAN. Without objection, it shall be included in the record.

( See appendix I, p. 353.)

Mr. MANELLI. I am not trying to pin you down necessarily, Dr.

Stanton, on the directness of your decision of how you treat outtakes,

I do think it is clear on the record. However, though, I would like to

make it as clear as possible that you do not provide outtake material

to private individuals. Is that a fair statement?

Dr. STANTON. That is correct.

Mr. MANELLI. So that if outtake material is deemed by this subcommittee or by the Congress or by the courts to have a bearing on

the public interest and to have a legitimate relevancy to a public purpose, it follows, does it not, that that material will have to be obtained

by compulsory process?

Dr. STANTON. I think that we might under certain conditions make

the outtakes available without the compulsory process. We have in

the past.
90

Mr. MANELLI. I will dispense with the next question and take up that

matter. I think it is true that in the past this subcommittee requested

of CBS without subpoena access to outtake material connected with

the Chicago convention and that access was provided.

Dr. STANTON. That is correct. We also, I think, provided a screening

of outtakes to the Violence Commission in 1968, I believe it was, or

maybe 1969.

Mr. MANELLI. Now how would you distinguish that situation where

you solved the problem with the outtake material to this particular

situation we have here?

Dr. STANTON. One distinction I would make here is that those

investigations were not involved in surveillance of our editing

procedures.

Mr. MANELLI. Well, the investigation that was conducted by this

subcommittee on the Chicago convention I think by its terms did address a number of allegations—in fact, as the staff report shows a number of the allegations were prejudicial editing and selective inclusion

in the broadcast of material unfavorable to the Chicago administration or to the police or what have you, that those were two of the specific allegations that prompted the subcommittee's inquiry. The report

did not conclude that you had done these things but that certainly

was one of the purposes of conducting the inquiry. Was that not your

understanding at the time?

Dr. STANTON. I would want to re-examine that bit of history, Mr.

Manelli, but it did not seem to me that we had a question there that

is parallel to the question that is now being investigated or inquired

into by this subcommittee.

Mr. MANELLI. Let's go into another matter then, the so-called "Project Nassau" which was an attempt to document an invasion of Haiti.

In that matter a subpena was issued which I will state for the record,

and in fact I will offer for the record a copy of that subpena, Mr.

Chairman.

(The subpena follows:)

BY AUTHORITY OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE

UNITED STATES OF AMERICA

To James F. Broder, Special Assistant, Special Subcommittee on Investigations, House Interstate and Foreign Commerce Committee:

You are hereby commanded to summon Frank Stanton, President, Columbia

Broadcasting System, Inc., 51 W. 52d Street, New York, New York, or any officer

of said corporation (personal appearance not required) to be and appear before

the Special Subcommittee on Investigations (vested under authority of House

Res. 116, 91st Cong.) of the Interstate and Foreign Commerce Committee of the

House of Representatives of the United States, of which the Honorable Harley 0.

Staggers is chairman, and to bring with him all items shown on the attachment

herewith, in their chamber in the city of Washington, on July 24, 1969, at the

hour of 2 :00 p.m., at room 2323, Rayburn House Office Building, then and there

to testify touching matters of inquiry committed to said Committee; and he is

not to depart without leave of said Committee.

Herein fail not, and make return of this summons.

Witness my hand and the seal of the House of Representatives of the United

States, at the city of Washington, this 17th day of July, 1969.

HARLEY 0. STAGGERS.

Attest: W. PAT JENNINGS, Clerk.
91

[ORIGINAL]

Subpena for Frank Stanton, President, Columbia Broadcasting System, Inc., 51 W. 52d Street, New York, New York, or any officer of said corporation before the Special Subcommittee on Investigations of the House Interstate and Foreign Commerce Committee.

Served James F. Broder, House of Representatives.

ATTACHMENT INCORPORATED IN THE INSTANT SUBPOENA DATED JULY 17, 1969, ISSUED BY HARLEY 0. STAGGERS, CHAIRMAN, SPECIAL SUBCOMMITTEE ON INVES- TIGATIONS OF THE HOUSE INTERSTATE AND FOREIGN COMMERCE COMMITTEE, TO

FRANK STANTON, PRESIDENT, COLUMBIA BROADCASTING SYSTEM, INC., 51 WEST

52D STREET, NEW YORK, N.Y.

1. All film, videotape, slides, photographs and audio tapes, developed or unde- veloped, taken during the period February 1966 through January 1967 by employees of the Columbia Broadcasting System, Inc. (hereinafter referred to as CBS), or on its behalf, in connection with the production of a CBS television

news program for which Jay McMullen served as producer, James Wilson, as

cameraman, Robert Funk, as soundman (and for which CBS also employed Tom

Duncan, Andrew St. George and Mitchell Wer Bell III) concerning (a) a con- spiracy by a group of Latin American exiles and others to launch an armed invasion against Haiti and (b) the interstate transportation of weapons and munitions to be used in this military expedition.

Such audio and visual materials should include, but not be limited to the following, which involved the presence or participation of CBS employees or those acting on behalf of CBS:

(i) discussions (held in New York City, Miami, Fla., New Jersey, etc.), in which any of the below named individuals or others may have participated

or been present:

Rolando Masferrer-Rojas

Father Jean Baptiste Georges

Antonio Leon Rojas

Colonel Rene Leon

Henri Vixamar

Ralph Serrano

Napolean Vilaboa

Andrew St. George

Mitchell Wer Bell III

Jay McMullen

Julio Cesar Hormilla

Julio Anton Constanzo-Pelau

Anselmo Allegro

Don Miller

(ii) separate interviews held with persons shown in (i) above or with

others associated in any way with the Haitian invasion and arms smuggling

activities of those involved in said invasion.

(iii) the storage, loading, shipping (intrastate and interstate), and unloading of weapons and munitions hauled to Florida from Shiloh Hunting

Lodge near Route 46 in New Jersey, and from Macon and Powder Springs,

Ga., and from any other points of origin to their destination.

(iv) weapons and munitions observed on the premises of a chicken farm

in Southdale, Fla., and at other locations in and about the city of Miami, Fla.

(v) other military supplies wherever located, including naval vessels and

aircraft, which were to be utilized in the invasion, and vehicles and men

associated in any way with the smuggling of these supplies, weapons, and

munitions.

(vi) all military training exercises including those held at said Shiloh

Lodge in New Jersey and at Kendall Park in Florida; and, all film taken of

Julio Cesar Hormilla's involvement in these exercises prior to, during, and

after his injury at Kendall Park.

2. All film, videotapes, slides, photographs, and audio tapes of discussions held

with Eugene Maximillian, Haitian Consul to the United States, in which Rolando

Masferrer Rojas, Father Jean Baptiste Georges, Ralph Serrano, Jack Bell,

62-142 0-71 7
92

Jay McMullen, Andrew St. George, and/or Mitchell Wer Bell III may have participated.

3. All correspondence, memoranda, notes, reports, books, records, files, minutes,

or papers of any kind or description relating to said program which were pre- pared by any CBS employees, or others on its behalf, including, but not limited to, discussions held at the New York City offices of CBS between January and March, 1967, participated in by the United States Attorney for the Southern Dis- trict of Florida, William A. Meadows, James P. Morris, from the Internal Secu- rity Division of the United States Justice Department in Washington, D.C., Stanley Schacter, Assistant Customs Agent in Charge of Enforcement, Bureau of Customs, Miami, Fla., and Messrs. Kenneth R. Frankel, Ralph E. Goldberg, and Joseph DeFranco from the CBS legal staff, and William B. Killian, Esq., of Miami, Fla.

This data should include all financial papers, records, contracts, vouchers,

books of accounts, paid checks, and other evidence of disbursements and receipts by CBS, its employees and representatives which pertained to said program, including, but not limited to, those labeled "Miscellaneous Production Expenses"

or its equivalent.

4. Names of all persons, whether or not CBS employees who participated in

or were associated with said CBS program, and a statement of their respective

duties and activities in connection therewith. This list should include all CBS

supervisory personnel to which Jay McMullen reported or who were involved in

any way with the financial aspects of this production.

5. All audio tapes and transcripts of a radio broadcast on or about November 20, 1966, by CBS reporter Bert Quint concerning a Haitian invasion, or

rebroadcasts of said news account.

Mr. MANELLI. It was quite clearly much more extensive than either

of the subpenas that have been issued in this case. The subpena involved in "Project Nassau" required a good deal more material.

You did comply with that subpena?

Dr. STANTON. We elected to comply with that subpena.

Mr. MANELLI. How do you distinguish between that case and the

present case?

Dr. STANTON. In that particular case we had to weigh the questions

that were involved, including the question of criminal violation of law,

and we weighed that against the question having to do with the editing

process because as you will recall everything in that particular material was outtakes. There was never any broadcast, so there were not

any outtakes involved; all the material consisted of outtakes.

Mr. MANELLI. I would say it the reverse way, as you have said the

second time. There was one complete outtake.

Dr. STANTON. Sir?

Mr. MANELLI. I would say it the way that you said it secondly; it was

not that there were no outtakes involved, it was that the entire film

was an outtake in a sense.

Dr. STANTON. I have some difficulty with you on that definition of

outtakes, Mr. Manelli, because if a broadcast does not take place I

don't see how you can have outtakes.

Mr. MANELLI. Well; perhaps we better define outtakes but I was

under the assumption that this refers to material filmed for broadcast

but not actually broadcast. Is that not correct?

Dr. STANTON. Yes, and there was not any actual broadcast there.

Mr. MANELLI. But it was filmed for broadcast?

Dr. STANTON. It was filmed for review, it was not filmed precisely

for broadcast. It was filmed for review.

Mr. MANELLI. Was that not the purpose of producing all this film,

for ultimate broadcast?
r

93

Dr. STANTON. No question about it. We shoot sometimes 30 times

as much film as we put on the air so that there is a lot of footage that

never sees the light of day as far as the broadcast is concerned. All I

am saying is that this was 100 percent nonbroadcast material.

Mr. MANELLI. You say that you allowed an inquiry to proceed in

that case which touched upon the editorial process because you felt

the issues were important enough, that there were criminal law violations involved. Again as in the Chicago convention situation that was

not the purpose of the subcommittee's inquiry at the time. The investigation of criminal violations would not fall under the jurisdiction

probably of the subcommittee. So it was obvious then, was it not, that

the inquiry was addressed to the same issues as the present inquiry;

that is, the adequacy of the Communications Act?

Dr. STANTON. I thought I told you earlier that I don't so construe it.

Mr. MANELLI. You do not construe the purpose of the present inquiry or of "Project Nassau" to have been addressed to the adequacy

of the Communications Act and other legislative concerns?

Dr. STANTON. That may have been involved in both considerations

but there were other things involved besides just that.

Mr. MANELLI. What were the other things? What other things with

respect to this particular matter, the present one, the Pentagon

documentary?

Dr. STANTON. On this one we are only talking about the editing

process as far as I can see.

Mr. MANELLI. No you said that there were criminal violations and

those were one of the concerns behind both inquiries. I am saying you

said that there were other concerns as well.

Dr. STANTON. I think we are going to end up with a very confused

record here because I believe by what you just said I am going to be

answering something that I didn't intend to answer.

Could I ask the reporter to read back the last question, sir?

Mr. MANELLI. Rather than read my last question I will remove my

last question and let's hear Dr. Stanton's last answer.

(The answer was read by the reporter.)

Mr. MANELLI. When you say we are only talking about the editing

process in this particular question, in this particular investigation, you

distinguish that from the "Project Nassau" case because there you

say there was something else involved.

Dr. STANTON. I do.

Mr. MANELLI. And that was the criminal aspect of it?

Dr. STANTON. That is one of the things, yes.

Mr. MANELLI. I think what I am trying to present to you in this

question is that in both cases what is involved is a legislative oversight

purpose which addresses itself to the adequacy of the Communications Act and other legislative matters. That was true in the "Project

Nassau" case in which you did comply and it is present in the present

case. I thought that somewhere back there, and I am not going to ask

the reporter to try to find it—somewhere back there you suggested

that there were other than these legislative concerns at work in the

present matter. Is that what you said?

Dr. STANTON. If I did, I was in error because—I don't believe I

did say that, but if I did, I did not mean to say that.
94

Mr. MANELLI. Looking back on that "Project Nassau" situation a

bit longer, Doctor, you are aware, of course, that the subcommittee did

issue a report summarizing the results of its findings.

Dr. STANTON. Yes, I am.

Mr. MANELLI. Do you feel that that report provided information

to the public which was important for it to have? Do you think it

served a useful purpose?

Dr. STANTON. I don't believe it served a useful purpose. 

Mr. MANELLI. You don't think that the public is benefited by more

information which goes to the techniques and the practices by which

television news documentaries are produced? Don't you think that

that particular product, the television news documentary, is very important to the American public and they ought to know more about

how they are produced just as they should know about other products

that are important to them?

Dr. STANTON. I would be the last person, sir, to withhold the information from the American public as to how things are done. I don't

believe that that particular report and study was full and complete

on that score.

Mr. MANELLI. You don't feel that the information contained therein

served any useful purpose then?

Dr. STANTON. I would not say that it did not serve any useful purpose. I think that a study could have been done that would have served

a more useful purpose. I do question yet today the desirability of investigating something that never occurred.

Mr. MANELLI. Well, the events did occur; the fact that a film was not

shown on television does not detract from that. Those events that took

place in "Project Nassau" did certainly occur and they were significant, weren't they?

Dr. STANTON. No question about that, but it seems to me that if the

Government persists in this kind of investigation that it is going to

have a very chilling effect on journalists and the whole process of a

free press, if every time we think that we have a story that deserves to

be looked into and explored and investigated and on our news judgment alone we decide that this is not worthy of reporting we then have

to go back and justify ourselves to a governmental agency or the Government in an official inquiry.

Mr. MANELLI. The questionable events in "Project Nassau" and the

explanations that were called for had nothing to do really with the

fact that the broadcast was not made. I think it is clear from the

report what was questioned was the incidence of staging events for the

cameras and paying money in cash to individuals who were involved in

illegal activities. In one case a simulated interview with the individual

was filmed from the back of a car and then a sound track was later

obtained from another individual who was driven around in a car to

provide background noise that was spliced together to appear to be

what was a bona fide interview. That is of concern, not the fact that

it was not broadcast.

Dr. STANTON. Mr. Manelli, if we want to go back over the whole

"Project Nassau" case, perhaps you will be good enough to let me

prepare myself for it. I was not a witness in that case. I though that

you had conducted your study; whether I agree with it or whether
95

I don't agree with it, I don't think it is material to the present business

that brings me before the subcommittee.

Mr. MANELLI. It is perhaps material in this way.

Dr. STANTON. You talk about splicing together a film as though it

were a film to be used on the air and I simply must deny that.

Mr. MANELLI. Well, I think the report is clear that where the splicing occurred was included in the work print and that is as far as the

project got.

Dr. STANTON. I reject that definition, sir.

Mr. MANELLI. This is already covered in the report.

Dr. STANTON. All right. • We are back now to the question of the

investigation that is already a matter of history, it is in the report. I

think you have exhausted this subject. We have supplied witnesses,

we supplied everything that we could possibly supply in that particular instance.

Mr. MANELLI. The relevancy to this inquiry is that the "Project

Nassau" investigation was possible only through material that was

produced before the subcommittee by subpena. The position you are

taking here would preclude the subcommittee from examining exactly

the same situation if it should occur again today. Now this does raise

a question of the policy which you are enunciating and the position

you are taking now. That is the relevancy to these questions. You will

concede that should the same events have occurred today and you

were to maintain your position it would be impossible for the Congress

to get any information on what had happened.

Dr. STANTON. We would have to weigh, as I said earlier, the focus

of that particular investigation as being different from the focus in

this investigation and we would have to weigh those and decide

whether we were going to submit the materials. I must say in candor

that looking back on the "Project Nassau" situation I am not sure if

that were up today that we would give you exactly the same answer.

I would hope that in the process, in the passage of time, that we have

learned a little bit more about the whole question of surveillance of

broadcast material. The accumulated experience to this point would

lead me to tell you that I might give you a different decision today

than we gave you at the time we supplied the materials. .

Mr. MANELLI. Why would you change your mind? Why do you feel

that you would actually act differently today?

Dr. STANTON. Without going into the specific instances I think that

there is an accumulation of experience that would put me in a different

position to make a decision today than was made at that time when

we supplied the materials for the "Project Nassau" investigation.

There have been other investigations, there have been decisions by

Government agencies and so forth, all of which would give me some

pause now in approaching this "Project Nassau" decision de novo.

Mr. MANELLI. Well, that is specifically what I am interested in in

this question. You said there have been other investigations.

Dr. STANTON. We are in a different environment today than we

were when the "Project Nassau" was before you. Understand I have

not said that I would not do it today, I am simply saying in answering your question that I would look at it differently today than I

looked at it at the time we supplied those materials.
•

96

Mr. MANELLI. You do feel if you did decide not to comply today you

would be within your rights to do so, of course.

Dr. STANTON. I do, sir.

Mr. MANELLI. I notice when you talked about complying with the

"Project Nassau" subpena you talked about balancing what you considered an improper inquiry into the editorial process against criminal matters and then in making that balancing judgment you decided

that in that case since there were criminal matters at stake you would

resolve the matter in compliance with the subpena.

Dr. STANTON. Mr. Chairman, may I go back to something I said

earlier and that is, as you know very well, I am not a lawyer and I

think we are getting pretty deep into the legal area here. If I may

either consult with my counsel or ask my counsel for his guidance on

the record here, I would be most appreciative.

(Witness consulting with counsel.)

Mr. CUTLER. Mr. Chairman, could I respond to Mr. Manelli's

question?

The CHAIRMAN. I don't believe you may. I believe you will have to

consult with your client and then he will give the answer.

Mr. CUTLER. I think Mr. Manelli was asking Dr. Stanton a legal

question about when something else has to be balanced again the

first 

The CHAIRMAN. You may advise your client as to what his answer

may be.

(Witness consulting with counsel.)

Dr. STANTON. Mr. Chairman, I think perhaps to save time and to

supply the answer Mr. Manelli is seeking for the record, may I suggest

that he turn to page 12 of the opinion which we supplied April 27.

Mr. MANELLI. Could I interrupt at that point, Dr. Stanton. I was

interested in your opinion. If you were going to refer to a legal brief,

I thought I referred to something you said. If you didn't say it, of

course you cannot explain it but I thought that you did say that in

deciding whether to comply before, you balanced the criminal aspects

against what you deemed an invasion of editorial judgment and you

struck the balance in favor of compliance because of the criminal elements. Now I thought you said that.

Dr. STANTON. Idid say that and I will stand by that.

Mr. MANELLI. Why is it then in making that same balance when

there is a legislative purpose involved to see if new laws are required

that you don't strike the same balance in favor of compliance? Isn't

that just as valid and compelling a reason to comply?

Dr. STANTON. We don't think so and that is the reason I wanted to

read you this particular part of the opinion because it was on the

advice of counsel that we reached this conclusion. . .

Mr. MANELLI. I don't object to your reading it but I think it is in

the record already and I think you have given your answer which is

what I really was after. If you would like to read it, go ahead.

Dr. STANTON. I will read it.

Moreover and without prejudice to the right of CBS to challenge similar

subpoenas in the future it should be noted that in the one previous case in which

non-broadcast material was supplied CBS was being investigated not merely for

an alleged attempt to distort or falsify the news, it was also accused of violating

or having knowledge of violations of substantive criminal laws of general ap-
97

plication not directed at journalists as such. Under such circumstances, as the

Attorney General's promulgation of subpoena guidelines reflects, there may be a

constitutional basis for balancing First Amendment rights against the need to

enforce the general laws. No such balancing can be justified, however, when

the object of the Government's inquiry is not to enforce the general laws but

to regulate the practice of journalism itself and to enforce some governmental

standard of good journalistic practice.

Mr. MANFLLI. Thank you. I would like to conclude with a few brief

questions—I hone they will be brief.

Dr. Stanton. in the April 12 issue of Time magazine there was an

article entitled "The Art of 'Cut and Paste'." Part of that article reads

as follows:

Even on documentaries, where time is not a problem, transposition of sequence, as in the Colonel's speech on the Pentagon show, is against standing

orders at all networks.

Is that correct?

Dr. STANTON. Mr. Manelli, I indicated earlier that I would not respond to specific questions about the editing of "The Selling of the

Pentagon."

Mr. MANELLT. This is not really that. It says that there is a standing

order at all networks against transposition of sequence in film editing

which is kind of general. Could you answer that?

Dr. STANTON. I cannot speak for all networks, sir.

Mr. MANELLI. I mean CBS.

Dr. STANTON. There is no such standing order at CBS.

Mr. MANELLI. SO it is not inconsistent with CBS policy to transpose

as was done in the colonel's speech?

Dr. STANTON. You are commenting now or you are asking me now

to comment upon the colonel's speech?

Mr. MANELLI. Do you decline to answer that one?

Dr. STANTON. I do so decline.

Mr. MANELLI. The same article that I referred to already I will

now offer for the record, Mr. Chairman.

( The material referred to follows:)

[From Time, April 12, 19711

TELEVISION—THE ART OF "CUT AND PASTE"

The continuing cut and thrust over CBS's The Selling of the Pentagon last

week got closer to the matter of "cut and paste" in Vice President Spiro Agnew's

phrase. Representative F. Edward Hebert, chairman of the House Armed Services Committee, filed an official complaint with the Federal Communications

Commission, charging that the documentary's producers misleadingly edited film

in order to disparage the Pentagon's publicity effort (TIME, April 5). Representative Harley Staggers not only complained to the FCC but also threatened to

open an inquiry by his Special Subcommittee on Investigations. The Washington

Post, though praising the import of the documentary, published two more

lengthy editorials, again challenging the film's production techniques and accuracy. Not surprisingly, CBS News President Richard Salant saw the Government attack as a Washington witch hunt reminiscent of the prevailing atmosphere during the Ed Murrow-Joe McCarthy confrontation in 1954, and dramatically pictured himself as an "electronic John Peter Zenger."

Guardedness.—Two segments from the one-hour program illustrate what everyone was arguing about. One showed the daily 11 a.m. press briefing at the Pentagon. During the session covered by the CBS cameras, the briefing official was

asked, according to Pentagon count, 34 questions. He answered 31, begged off on

one on grounds of security, and said he would have to "check back" before re-
98

plying to the other two. In the excerpt CBS showed, the briefing had been edited

down to just six of the exchanges, including all three evasions. Any viewer

might reasonably have inferred that the Pentagon had been unresponsive to half

of the reporters' questions. CBS says that the segment was not intended to

show unwarranted evasion, only the Pentagon's guardedness.

Editorial tinkering of a more complex nature was involved in footage on the

Peoria speech of one of the "traveling colonels" who push the Pentagon line in

public appearances. What appeared on the program to be a verbatim, six-sentence

passage from the talk was in fact a splicing of six separate declarations—out

of sequence. The Pentagon claimed that the opening sentence came from page 55

of the colonel's prepared text, the second sentence from page 36, the third and

fourth from 48, the fifth from 73, and the sixth from 88. In the rearrangement,

Agnew contended, the opinions coming out of the colonel's mouth are actually

quotations from Laotian Premier Souvanna Phouma.

CBS maintains, with some support from a tape of the speech, that the colonel's

own words and Souvanna Phouma's were so confusingly interwoven as to be

almost indistinguishable. In an irrelevant, pot-and-kettle argument, the network

charges that the colonel himself used his source material (a magazine interview)

deceptively by quoting the Premier when he supported the Pentagon-favored

domino theory and failing to mention that Souvanna Phouma in the same article

warned against spreading the war into Laos.

The network's fundamental defense, however, applies to both electronic and

print journalism and goes far beyond the Pentagon documentary; CBS contends

that the transposition of film footage was mere technique and that the screened

product was a fair summation of the colonel's rambling oratory. "The important

thing," says Salant, "is whether or not you are journalistically honest in your

editing, not whether you present a verbatim transcript."

Few editors would disagree with that position, yet it ignores a vital difference

between print and television journalism. Newspaper and magazine readers as

well as their editors understand that what is printed is a comprehensible reordering of reality; written stories normally can and do make clear, through

both words and punctuation, where significant reordering has occured. By its

immediacy, TV creates the illusion of verisimilitude. The average viewer, unfamiliar with TV's editing, was doubtless misled into believing what he saw and

heard on the documentary—an Army officer during part of a speech. Because

televised material is digested more easily and has greater emotional impact than

news in print, distortions in editing cut especially deep. One partial remedy might

be to superimpose a subtitle like "Edited Excerpts" on condensed speeches, just

as some segments during the televising of space explorations are labeled "PreTaped" or "Simulated."

Caesar's Wit e.—Salant would have the near-unanimous support of all journalists in rejecting one Post proposal—that the subject of .a film interview be granted

approval rights over the final cut. That suggestion, Salant said, "strikes at the

very core of independent and free journalism." No one in the press or Government suggests that TV not be allowed to edit at all. Journalism, whether print

or electronic, must select and synthesize. But pictures lend themselves less readily

to this process than words—which is one reason why print journalism is capable

of subtlety and depth that can almost never be achieved on TV. It is also why

editing TV news requires a special kind of vigilance.

Often TV editing actually makes subjects look better rather than worse. People

who speak redundantly and in nonsentences in an interview may appear articulate and convincing after editing. One former CBS producer recalls how "I spent

much of my time making Eisenhowers sound like Demostheneses." But bias, conscious or unconscious, sometimes leads an editor to play down those parts of a

speech, news conference or interview to which he is unsympathetic. Bias aside,

TV cutters frequently overplay the sensational element in a statement and miss

the sense of it.

Visually interesting footage still carries editorial weight that can sway news

judgment. Example: one night last week, NBC Producer Robert Mulholland rejected a plane-crash story with the comment, "No flames in the film. Too quiet."

But generally, the networks have matured since the days when "Shoot bloody"

was the watchword of Viet Nam War coverage, and they are constantly evaluating their own performance. Last week NBC News President Reuven Frank reminded his staff in a memo that "misleading practice" has been forbidden for
99

years and noted, "I get as weary of being called on to be Caesar's only wife as

you do." By and large, the networks' editors have done well in maintaining their

purity. The only major recent controversy, other than the Pentagon program, concerned a polemical antihunting film shown on NBC. In it, a female polar bear with

two cubs is apparently stalked by helicopter and gunned down. Actually, as Producer David Wolper admits, the killing was simulated by splicing in footage of a

bear being felled by an anesthetic dart in a game-department tagging program.

Jump Cut. —Even before they can make basic editorial judgments about the

relative news value of stories, TV producers must overcome mammoth technical

problems. Film and tape must be acquired from all over the world via Air Express

or cable or satellite; when they come, there is too much footage and too little

time, particularly on the major nightly newscasts. Normally, the three competing

network shows have ten to 15 hours of film and tape at their disposal each day.

Air time to display it usually amounts to twelve to 15 minutes. Roughly 7%

minutes of the half hour goes to commercials and station breaks, the rest to items

simply read by the anchorman because they are late-breaking or do not lend

themselves to illustration. Perhaps seven important film stories are fighting for

time each night, and a producer and film editor (in New York or at a network

bureau) are assigned to cut them to size.

The story in the raw includes visual background, interviews, possibly speeches,

plus an opening, closing and bridge narrative by the correspondent. By the time

the film has all been run through and vetted frame by frame on the Moviola, the

ratio of on-the-air footage to cutting-room-floor surplus is approximately 1 to 20.

The deadlines are so relentless that few TV editors have the time to transpose

film even if they want to. Just splicing together two frames of film can take up to

20 minutes, and a filmed interview can take even longer to assemble if the editor

is trying to splice a single answer from two different parts of the film. A typical

problem complicating such splicing: between questions, the interviewee may light

a cigarette or unbutton his jacket, producing an audience-jarring "jump cut" if

the splice is made. The solution is to switch to a "cutaway" in between, generally

a reaction shot of the correspondent.

Even on documentaries, where time is not a problem, transposition of sequence, as in the colonel's speech on the Pentagon show, is against standing

orders at all networks. David Bukstaum, ABC news producer, who learned his

trade under Ed Murrow and Fred Friendly at CBS, says: "When we edit, it never

gets out of sequence. And if someone would edit out of sequence, the guy ought

to be fired."

When distortion on the networks does occur, it is usually inadvertent, caused

occasionally by incompetence but primarily by the shortage of air time. The

entire text of Walter Cronkite's nightly newcast would fill but two-thirds of the

front page of the New York Times. "Television news," says ABC Executive

Producer Av Westin, "is an illustrated headline service. I know what we have

to leave out, and if people do not read newspapers, newsmagazines and books,

they are desperately uninformed."

Mr. MANELLI. This article quotes a news producer of another network who the story says was once at CBS as saying as follows:

When we edit it never gets out of sequence. If somebody would edit out of

sequence, the guy ought to be fired.

That is the end of the quote.

I take it from what you said that you would not ascribe to that statement. This would not be your position?

Dr. STANTON. That is right, and you will have to determine yourself

whether that particular individual said that. I think that is an incorrect statement.

Mr. MANELLI. Do you believe that the Time magazine is quoting him

incorrectly in this case?

Dr. STANTON. I do so.

(See Appendix H, p. 350 for additional information submitted by

Dr. Stanton.)
100

Mr. MANELLI. I will also just read a short comment from a book by

an ex-CBS reporter, Alexander Kendrick, the book on Edward R.

1VIurrow entitled "Prime Time," at page 43:

In filmed interviews, unless two or more cameras are used, the technique of

reversing the camera to film the questions after the answers have already been

recorded, allows the questions to be reworded to show a sagacity or truculence

that were not present in the original. Sometimes entirely different questions

are filmed, to fit the answers or give an entirely different meaning to them.

When the CBS chairman of the board was told about reverse questions by a

correspondent, he had no idea what was meant * * *.

I will skip a couple of lines.

Film editing can make a wise man out of a fool, or a bore. As with radio tape,

so with film, a man can be heard to say exactly the opposite of what he actually

did say.

Do you agree with that statement?

Dr. STANTON. If you are asking me, Mr. Manelli, whether we can

with editing techniques either on video tape or on film or on audio tape

take one answer and put it to another question, the answer is obviously

"Yes." But what we are now talking about is the editing process which

is the very heart of all journalism.

Mr. MANELLI. I don't want to cut you off but I would like to cut myself off very shortly. If you have answered that particular point, I

would like to go to the next question.

Mr. PICKLE. Mr. Chairman, may I in line with his question ask Mr.

Manelli to yield to me for one question.

The CHAIRMAN. Yes.

Mr. PICKLE. I think I can anticipate the witness' answer that he

didn't intend to comment but I want to ask you this question.

Did CBS in the filming of the documentary "The Selling of the

Pentagon" at any time arrange or rearrange the sequence of questions

and answers in a filmed interview or juxtapose a response or part of a

response to one question so that the response appeared to answer a different question?

Dr. STANTON. Mr. Pickle, I would like to give you a general answer

to that question. We did edit the material.

Mr. PICKLE. Iii line with our earlier request that you begin your

answer with "Yes" or "No," you start "Yes, but." Is that going to be

your start?

Dr. STANTON. Yes; we edited the broadcast, sir.

Mr. MANELLI. I just have about three more questions.

Dr. Stanton, in concluding I would like to refer back to some statements you made I guess approximately 12 years ago. This is a statement you are quoted as making in October of 1959.

"* * * We accept the responsibility for content and quality and for assurance

to the American people that what they see and hear on CBS programs is exactly

what it purports to be. * * * The American public has been seriously misled

* * The networks must accept their share of responsibility for this breech of

public faith " *"

Now in the 'present context would you say the public was misled?

You are referring to the quiz show events but the first part of that

statement, "We accept the responsibility for content and quality and

for assurance to the American people that what they see and hear on

CBS programs is exactly what it purports to be." Do you still subscribe to that?

J
101

Dr. STANTON. I do.

Mr. MANELLI. Do you think that everything that people saw and

heard on "The Selling of the Pentagon" was exactly what it purported

to be?

Dr. STANTON. Mr. Manelli, I believe the broadcast was fairly edited.

Mr. MANELLI. That was not the question.

Dr. STANTON. I began to get into the editing answer a minute ago

and you said you didn't want me to get into that, but I have got to

talk about editing if you are going to talk 

Mr. MANELLI. Dr. Stanton, would you start off with a "Yes" or "No"

to my question and then explain. I asked you, Do you believe that what

people saw and heard in "The Selling of the Pentagon" was "exactly

what it purports to be"?

Dr. STANTON. I do.

Mr. MANELLI. You do. Do you want to explain it? I would be happy

to wait and let you do so.

Dr. STANTON. Perhaps we can do it at another point in the

interrogation.

Mr. MANELLI. All right. You also in 1959 had occasion to talk about

a successful CBS program called "Person to Person." You stated:

* * * Nobody at CBS has the slightest objection to the way "Person to Person"

has been produced. * * * We are simply insistent that the production practices

of programs of this type be revealed * * * so that the program as it appears

on the air will be exactly what it seems to be.

Again with respect to the Pentagon documentary, do you believe

that the program production practices were revealed so that the program as it appeared on the air was exactly as it appeared to be?

Dr. STANTON. Would you please repeat that question for me, Miss

Reporter?

(The pending question was read by the reporter.)

Mr. MANELLI. I can break that down. Were the production practices

revealed?

Dr. STANTON. No, Mr. Manelli. Production practices, if I understand your question, were not revealed per se but this purported to

be a documentary. It was a documentary. As I have indicated, I believe

it was fairly edited and we stand by that answer.

Mr. MANELLI. Again, Doctor, a brief quote. This is from the quiz

show hearings in 1959. You testified at that time:

We are now preparing to move another step forward into our general rules

covering all program areas in order to assure that programs will be exactly

what they appear to be.

I think within the same quote or certainly concerning the same

testimony you said:

The test in every case must be whether any substantial number of the viewing

audience is likely in the given circumstances to be deceived or misled as to the

true nature of the program being offered.

Do you think that there was anything in "The Selling of the Pentagon" which was likely to mislead a substantial number of people as to

what they were seeing?

Dr. STANTON. It is difficult for me to answer yes or no to that because.

I think that supposes that I went out and talked to a lot of people. Let

me say that our policies are constantly under review. If we feel that
102

there is something in our practices that need to be changed or to be

explained to the public, we do so. If you take the history of television

in the last quarter century and you were to look at the broadcasts in

the early days as against the broadcasts today, I think you would find

that the techniques are a lot different.

Mr. MANELLI. I think that is all I have at the moment.

Dr. STANTON. If I may just put an appendage or a footnote to that

answer. We have been searching for a long time in broadcast news,

both for radio and for television, to find the equivalent, for example,

of the three dots that the printer has. We have not found that particular device.

Mr. MANELLI. Would that not simply be to let the jump cut take

place without—maybe you can define these terms. If you do not put in

the reverse, which was in the Henkin interview, when you cut the tape

it will be quite obvious to the person watching the screen, isn't that

true?

Dr. STANTON. That is a very good question. We have experimented

with jump cuts and I am not sure all the members of the committee

are familiar with this.

Mr. MANELLI. Would you define it for the record?

Dr. STANTON. Sir?

Mr. MANELLI. Would you define what you mean by jump cuts?

Dr. STANTON. A jump cut is a cut in the film where you take out some

material for editing purposes and you don't do any bridging at that

particular point so that a man might have his head over here in one

scene and you cut and his head suddenly goes over here.

Mr. MANELLI. Does that not take the place of the three dots?

Dr. STANTON. That could take the place of the three dots but I

think we would be before you for a different reason.

Mr. MANELLI. Why?

Dr. STANTON. Ridicule of the person interviewed because at one

moment he may have a pipe or cigarette in his mouth and the next

minute it is gone. It creates all types of problems.

Mr. MANELLI. Don't the people being interviewed object, not for

that, but because their appearance is that they are saying things which

they didn't say and that appearance is enhanced by interjecting cutaways to the interviewer so that you cannot see that the splice has been

made? That is really the more basic complaint, isn't it?

Dr. STANTON. That is a matter of editing judgment and that is what

we are talking about here, it seems to me. As far back as I think a

year ago we made up a special film to see how these things would

work, various techniques, to try to find the three dots because that is

something that we don't have. If you would like to see that film or if

the committee would like to see it, I would be glad to make it available

to you.

Mr. MANELLI. Thank you.

The CHAIRMAN. Thank you, Dr. Stanton.

Mr. Springer.

Mr. SPRINGER. Dr. Stanton, for how long have you been president

of CBS?

Dr. STANTON. Since January 1946, sir.

Mr. SPRINGER. And before that what was your job?

4
103

Dr. STANTON. Before that I was a general executive, I believe the

title was vice president and general manager. It may have been executive vice president, I have forgotten.

Mr. SPRINGER. Of CBS?

Dr. STANTON. Of CBS.

Mr. SPRINGER. When did you begin those duties?

Dr. STANTON. Sometime early in the forties. I can supply the

information.

Mr. SPRINGER. Then what did you do before that?

Dr. STANTON. Before that I had a variety of positions as a senior

executive and including a number of departments of the company at

that time.

Mr. SPRINGER. When did you start with CBS?

Dr. STANTON. In October 1935.

Mr. SPRINGER. The Federal Communications Act was written in what

year?

Dr. STANTON. 1934, was it not?

Mr. SPRINGER. Correct.

If we had not created the act of 1934 and you became president of

CBS, to whom would you have made your application for a license?

Dr. STANTON. If you had not created the act of 1934?

Mr. SPRINGER. Right.

Dr. STANTON. The Department of Commerce.

Mr. SPRINGER. I am afraid you are wrong. You would have applied

to this committee. This committee gave the FCC that power.

Now this is why in 1958 we had this power since 1934 before the

original Radio Act I think in 1926.

Dr. STANTON. 1927.

Mr. SPRINGER. In 1958 we created this Special Subcommittee on Investigations to supervise all of the seven agencies of which the Federal

Communications Commission is one. We delivered up the power of

this committee to the Federal Communications Commission and they

laid down certain rules with reference to radio and TV, and you have

been guided by them since then, have you not?

Dr. STANTON. We have.

Mr. SPRINGER. Now do you claim that you are the same as the press?

Dr. STANTON. As far as the editing, yes. As far as the editing process

is concerned.

Mr. SPRINGER. Well, I am not asking you that, I am asking you, do

you have the same powers of the press? That is what I asked you, not

for editing purposes. Do you have the same power as the press?

Dr. STANTON. Under the First Amendment, yes.

Mr. SPRINGER. All right. Now let's just go at it for a second. Does the

newspaper apply for a license to the Federal Communications

Commission?

Dr. STANTON. No, sir.

Mr. SPRINGER. You do?

Dr. STANTON. Yes, sir.

Mr. SPRINGER. Do you say yes, sir?

Dr. STANTON. I did.

Mr. SPRINGER. Does a newspaper comply with the Fairness Doctrine?

Dr. STANTON. Do you mean is there a rule from the Government that

says they shall?
104

Mr. SPRINGER. Is there anything in the Constitution or law, either

one?

Dr. STANTON. There is not.

Mr. SPRINGER. Do you have a rule of fairness at the FCC with which

you comply?

Dr. STANTON. We do, and we had it before the FCC had its Fairness Doctrine.

Mr. SPRINGER. Right. Now does the newspaper supply equal time to

candidates for public office?

Dr. STANTON. Not by law.

Mr. SPRINGER. Do you by law?

Dr. STANTON. We do.

Mr. SPRINGER. All right. Then you are not the press, are you?

Dr. STANTON. I think we are the press, sir.

Mr. SPRINGER. You're the press except that you're regulated by a

Government created regulatory commission; you're regulated by them

and you are granted a license each 3 years provided you have served

in the public interest—that is, your 12 stations do—isn't that correct?

Dr. STANTON. I don't want to quibble but we don't have 12 stations.

Mr. SPRINGER. All right. You have five TV's and how many radios?

Dr. STANTON. We have seven AM, seven FM and five VHF.

Mr. SPRINGER. That makes a total of how many?

Dr. STANTON. That is 19.

Mr. SPRINGER. Nineteen, did you say?

Dr. STANTON. I did.

Mr. SPRINGER. All right. Of the 19 do you come to the Federal Communications Commission every 3 years to be relicensed ?

Dr. STANTON. We do.

Mr. SPRINGER. And you may be subject to a hearing in which you

describe yourself and you tell what you have done and questions are

answered and you file a long series of papers to show you have acted in

the public interest in order to get relicensed, do you not?

Dr. STANTON. Yes.

Mr. SPRINGER. Does a newspaper do that?

Dr. STANTON. It does not.

Mr. SPRINGER. You have mentioned here, Dr. Stanton, what you

call TV. Let me please just go a little bit further because I think we

ought to stay , with what we are talking about. I read from Webster's

New Collegiate Dictionary and it says as follows, and this is the press:

"the publishing establishment and also its personnel; newspapers and

periodicals collectively."

Are you the press?

Dr. STANTON. We are.

Mr. SPRINGER. You say you fall within that definition?

Dr. STANTON. I do not. What is the date on that?

Mr. SPRINGER. This is 1956.

Dr. STANTON. Mr. Springer, I am not here to be contentious, I am

here to try to be as helpful as I possibly can, but I think one thing that

we have got to recognize is that in the quarter century that television

has grown to the position it is today I think the public looks to the

broadcast media as the press as well as the print journalist as the press.

Mr. SPRINGER. Is that what the dictionary says?

Dr. STANTON. That is what the Supreme Court says.
105

Mr. SPRINGER. I said, Is that what the dictionary says?

Dr. STANTON. I don't have all the dictionaries.

Mr. SPRINGER. I don't believe the Supreme Court says that, either.

Now let me read to you. You are talking about media journalists.

Let me read what was said in 1956, and if that is not late enough we

will get another one. Here is journalism: "the business of managing,

editing or writing for journals or newspapers; also journals or newspapers collectively." That is a journalist.

Now, Dr. Stanton, you are using some things very liberally here

and when you are talking about a chilling effect you are giving me a

very chilling effect when you start using words here which you don't

define and when I go to the dictionary and don't find any resemblance

to any words that you have used. I go back to the beginning because

I think we have to start at the beginning of this in order to get an

understanding of what you people are.

Dr. STANTON. If you went back far enough, I don't suppose you

would find print.

Mr. SPRINGER. But you would find print in this year 1971 is the important thing. It is what we are doing in 1971 and what are the definitions that we abide by in 1971.

Dr. STANTON. But, sir, I would submit that you are reading from a

definition promulgated before 1956.

Mr. SPRINGER. I am reading from 1956. I read from the dictionary

of 1956.

Dr. STANTON. And I said it was written before 1956 because it was

published—it bears a copyright probably in 1956.

Mr. SPRINGER. All right, but they keep up to date. You get these

every 5 years. You will probably find one in 1961, 1966, probably

another one in 1971. I doubt if it has changed any. What I am trying

to do here basically, you come here with a certain theory that you are

an electronic newspaper. Dr. Stanton you are not an electronic newspaper, you are a Government regulated industry operating in the public interest, and when you don't operate in the public interest the

FCC can revoke your license. Now you are here before us 

Dr. STANTON. When did I say I was an electronic newspaper, Mr.

Springer?

Mr. SPRINGER. I will take it back, you didn't say that. I say that is

my impression of what you say you are because you are using the

words "press" and "journalism" therefore, I take it that you are an

electronically operated newspaper.

Now this is not the first time you have been before this committee,

Dr. Stanton, is it?

Dr. STANTON. It is not.

Mr. SPRINGER. You were here on payola in 1958. You were here on

false auiz shows in 1958.

Dr. STANTON. I was not here on payola.

Mr. SPRINGER. All right. Well, may I say, did Mr. Fisher represent

you then? Was he your attorney then?

Dr. STANTON. Tom Fisher was our general counsel.

Mr. SPRTNGER. Then Tom Fisher appeared here for you but at least,

CBS was here before the committee because I remember CBS testifying. I am sure he was the witness if we went back to the record so

I take it he spoke for CBS.
106

Now at that time you said you were going to do certain things, at

least this is the way I understood it, and you were going to get this

all straightened out. I am quoting now from Broadcasting of November 23,1959 :

But Aubrey disclaims any intention of a magazine concept—

So that you can get this straight.

. . . Mr. Aubrey's memo disclosed that "a new office will be created" by

CBS—TV "to implement this memorandum and other related memoranda, and

to formulate and recommend additional rules." It also said the rules it enunci- ated will apply to all programs produced after December 15, and earlier where practicable.

The rules were designed to "indicate clearly, where doubt may reasonably exist, the degree and proportion of fact and fiction, of nature and artifice, of preparation and spontaneity, within each program"—including "interviews and discussions."

Now down below he says:

The test in each case must be whether any substantial number of the viewing audience is likely in the circumstances to be deceived or misled concerning the

true nature of the program fare being offered.

Now that is what he said. Did you carry out these rules?

Dr. STANTON. We did.

Mr. SPRINGER. Page 6, paragraph three of your statement, Dr. Stanton, you say:

As we have previously indicated to the subcommittee, comments on "The Selling of the Pentagon" have raised important issues as to the practices employed, or that ought to be employed, in the editing of documentary broadcasts.

While responsible journalists may reasonably differ concerning particular prac- tices in particular cases, we do not intend to ignore these differences or to shrink

from continuing self-examination of our own practices.

This is my question. Do you know of one single responsible journalist—and I didn't say a TV journalist—one single responsible journalist that you know who would agree that it is allowable or commendable to edit out of sequence during a question and answer interview?

Dr. STANTON. Yes.

Mr. SPRINGER. Name one.

Dr. STANTON. I can name several. I will supply them for the record.

Mr. SPRINGER. I would like to have them publicly now. One. One.

Dr. STANTON. I will supply them for the record.

Mr. SPRINGER. The fact of it is, Dr. Stanton, you don't know of

one do you?

Dr. STANTON. I don't want to misstate myself and I want to supply

it for the record.

( See appendix H, p. 351.)

Mr. SPRINGER. All right. Let me state for the record because this is

the truth, I talked yesterday with three journalists—not TV men—

who told me that in all their experience they not only would not do

this—what you did—but they didn't even know of anyone who would

do it.

Now we had Mr. Henkin up here before this committee who is the

Assistant Secretary of Defense for Public Affairs and he said he had

been in the newspaper business 32 years and he had been in responsible

positions. Now I will let the record stand for what he said but I can put

it in his words. that not only did he never do something that Roger

Mudd did, in this case, but he didn't know of a single journalist in all

the 32 years of his experience who ever took a question and answer in-
107

terview and edited the questions and the answer and put the answer

over to some question which had been asked previously.

Now I am telling you what the record shows, Dr. Stanton. This is

not done with journalists. Journalists do not do this kind of a thing.

Now I don't know anything about your TV journalists, I am talking

about journalists, journalism and the press as is described in the

dictionary.

Would you say that the electronic manipulation of a person's wording resulting in artificially created sentences, paragraphs, and speeches

is an act of responsible journalism?

Dr. STANTON. It is part of the editing process and the definition

there becomes: What is good editing?

Mr. SPRINGER. I will have to look up editing, I have not looked that

up. You are introducing a new one here on me every 2 minutes. I tried

to keep up with "press" and "journalism."

Dr. STANTON. Let me talk about it just a minute, Mr. Springer, if

you would like.

Mr. SPRINGER. Go ahead.

Dr. STANTON. Because I think that when you edit, which is the very

heart of journalism—and if this offends you, then let's say it is the

very heart of broadcast journalism—it is impossible for us to reproduce either in print or on the air all of the material that we gather

every day so that every newspaper and every book—forget the book

for the moment, but every newspaper certainly is edited and every

broadcast is edited except a few that are verbatim. The verbatim

broadcasts are those such as "Face the Nation," the Presidential talks

and things of that kind.

Mr. SPRINGER. We understand that, Dr. Stanton.

Dr. STANTON. All right. My job and the job of a broadcast journalist is to be fair in the reproduction of what the person has said, to

make his answer clear and to be objective, to maintain the sense of

the interview.

Mr. SPRINGER. Dr. Stanton let me just read to you "The Interview,

A Precarious Ego Trip" by Lawrence Laurent who is the television

editor, I believe, of the Washington Post. What he has said in here is

almost indescribable of what happened to him in an interview.

[Temporary loss of stenographic recording due to mechanical

difficulties.]

Mr. SPRINGER. I don't know whether he said CBS. He mentioned

"The Selling of the Pentagon" in here but I don't believe he said

whether it was CBS or not. But he is talking about the same thing.

The Washington Post is not exactly an enemy of yours as far as I

know. I would like to read, if I might, what their real thoughtful

words were with reference to this particular thing. Let me just read

this paragraph. This is the Post speaking from its editorial of

March. 26, 1971:

Given these built-in problems, the TV producers, it seems to us, should go out

of their way to preserve intact and in sequence the response of those they interview, or, at the very least indicate that something in the sequence has been

dropped and/or give the subject of the interview an opportunity to see and approve his revised or altered remarks. To do otherwise does in fact result in a

material distortion of the record, especially when the viewer is under the impression that what he is watching is what actually and exactly occurred. It seems

a great pity and a waste to let a documentary of such an important subject as

62-142 0-71----8
108

that with which The Selling of the Pentagon dealt be undermined in terms of

credibility and public confidence by these editing techniques—innocent or not.

Now let me show you what they said, too, because I think in answer

to Mr. Salant's letter—your CBS head man, is he not? I want to be

sure I get this right. Is he the news editor?

Dr. STANTON. Mr. Salant is president of CBS news.

Mr. SPRINGER. All right. They reply to that and I won't put it all

in the record but there is a very good reason I think why the Post

took this position. Let me read this from the Post editorial of

March 30, 1971:

Surely something different from and less cosmic than a challenge to CBS First

Amendment rights is involved in the question of whether or not the subject of such a rearranged interview should not be given a chance to see and approve what he will be demonstrated to have said. And surely this "editing" practice

must be conceded—with reason—to have damaging effect on public confidence in what is being shown to have happened—shown to have been said. We agree with Mr. Salant's premise that we are all in the same dinghy.

He is talking about you and journalism—

That is why we are so concerned that neither end should sink.

Now, Dr. Stanton, if you think everybody in this country and the piles of stuff which have been coming to my desk, may I say in closing

here, stimulated I guess by you, I don't know how else it could come—

some of them have called me up on the telephone and read it to me,

some of my own friends. I have explained in detail we are not interested in the First Amendment, we don't have anything to do with the First Amendment. What we are talking about is deceit.

Now when this subcommittee staff made its preliminary report to

us without any outages, just from interviewing the witnesses involved in "The Selling of the Pentagon," they came back with the report "deceit bordering on fraud."

Now, Dr. Stanton, I would like to go if I could for a minute—I

hope you are going to accept the 1956 dictionary, it is the only one I

have got right now.

Well, I will have to read "deceit" and "deceitful," put them together, to be fair to everybody. I am reading now.

Deceit: A deceiving and an attempt to deceive, a deception. A disposition to deceive or deceitfulness or an imposture.

Deceitful: Actual or marked deceit, deceptive, misleading, trickery and fraudulent.

Now you may come to a different conclusion but I think this com- mittee in our preliminary examination found it but we are going to

reserve final judgment until this hearing is over. It is our preliminary

opinion that CBS is guilty of deceit. If I view the word "deceit" correctly, it is a fraud.

Now when you go back here in Aubrey's definitions, whether or not

a sizable number of people were likely to be deceived, that what was being shown did not actually take place, then that is deception in my opinion. Now when you start transposing—you use the word "editing"

in a very broad sense. In my conversations with newspapermen they

don't give me editing the same way you described it because I think

if you took me and put me on a television program and took my ques- tion 36 and went over to answer 57 and 58 and put it on question 36
•

109

and then took another question and then went over to page 77 and

took that answer or part of that answer and put it to 36, I could not

come to any other conclusion myself than that you actually created

a deception.

Now this is what the committee is talking about when we are getting down to the nub of this, we are getting down into this, and you

are trying to get off the hook as I see it on editing. I don't know if

we have had a chance to go on that far enough to have an opinion on

editing yet but this is our preliminary opinion as of this moment.

Now let me just go on. You quoted a case here a minute ago. You

referred to the recent Supreme Court decision of Rosenbloom v. Metromedia. In the first place it is a libel case which is not the same as what

we are talking about at all.

Now you say the public is entitled to know. Why isn't the public

just as entitled to know how you made that program up as it is to see

the program? Why shouldn't they? Don't they have just as much right

to know through this committee or the FCC how you made a program

up? Isn't it just as fair? Why should you want to conceal how you

made the program up? I don't know whether you are trying to conceal

it or not but you are not delivering it up.

Do you want to reply to that?

Dr. STANTON. I didn't realize that was a question, sir.

Are you charging that we deceived deliberately and maliciously in

"The Selling of the Pentagon"?

Mr. SPRINGER. I am saying that you deceived. Now whether you deceived deliberately or maliciously, you did deceive because you changed

the answers to the questions and put them in answer to another question.

Dr. STANTON. Mr. Springer, I have said earlier and I respectfully

say again I don't want to get into the editing process of this particular

broadcast but I am perfectly willing to talk about the editing process

which seems to be a new area for you, but I would be perfectly willing

to talk about it generally.

The intent of CBS News is not to deceive. The intent of CBS News

is to move information on specific subject areas. The editing process is

for the purpose of condensation, it is for the purpose of clarity and

conciseness and it is done always by every journalist that I know fairly,

objectively and in an effort to maintain the essence of what was said.

Mr. SPRINGER. Dr. Stanton, let's stay on the same thing. Are you

talking about consolidating news or are you talking about interviews,

question and answer?

Dr. STANTON. I am talking about both, sir.

Mr. SPRINGER. Let's just stay on interviews because this is what this

is all about.

Dr. STANTON. All right.

Mr. SPRINGER. If you say you know a journalist who does that, we

will allow you to supply that for the record. We would like for him

to come before this committee and tell us on what occasion he did it.

Dr. STANTON. Let me take the example of taking material from one

place in an interview and putting it with another section. AU of us

have had long interviews in which questions have been asked and long

answers have been given, and frequently we find ourselves thinking of

•
110

something in answering a question later on that bears on an earlier question. I see nothing wrong with taking that material that may be answered minutes later, questions later, pages later and bringing that back if you are trying to pull all of the material together on a partic- ular question.

Indeed the other day I saw a leader in our Government in an inter- view broadcast carried live do exactly that, and if he had been edited for presentation the answer he gave some minutes later would have been brought forward to the first question because we don't always think of the answers when we are in an interview context. This is what

a news reporter does.

Mr. SPRINGER. You are talking about Huntley-Brinkley.

Dr. STANTON. No, I am not. I am talking about both, Mr. Springer.

Mr. SPRINGER. Now if you do it then 

Dr. STANTON. I would not be talking about Huntley-Brinkley.

Mr. SPRINGER. At least then we have an admission from you that in interviewing, question and answer, you do transpose the answers to questions. Yes is the answer, right?

Dr. STANTON. When it is fair, yes.

Mr. SPRINGER. Well, you do, don't you?

DT. STANTON. Yes, when it is fair.

Mr. SPRINGER. But you do. The answer is yes, you do do it. Dr. STANTON. I said so.

Mr. SPRINGER. All right. That is all I want to know.

Now the part that astounds us this committee has acted with great restraint through all the years. We have been in business 13 years and

my best recollection is I think we have had six or seven hearings, and I will stand corrected if the staff says it is more than that. Now that is

one every 2 years on something having to do with either radio or TV

or some other agency. We have never pursued you or any other agency

or people subject to those agencies in the way of harassment of any kind. We have only done this when we believed it was in the public interest and was serious enough that we should.

Now you may think up in New York that what you have done is popular. If you could sit behind the desk of these Congressmen and get this avalanche of mail that we got on "The Selling of the Pen- tagon," it would be unbelievable to you. Then when they found out that it was not even true, the thing had not even happened, you had edited and transposed questions and answers, then it became so serious that even the Washington Post has to get into it in all fairness.

We have not attempted in any way to exercise the jurisdiction of this committee which we are mandated by the full committee plus tha House except in the most exceptional circumstances, and if I had not been convinced in my own mind that there was a deception in this case

you would never have gotten me to this hearing.

Thank you, Mr. Chairman.

The CHAIRMAN. Mr. Pickle.

Mr. PICKLE. Thank you, Mr. Chairman.

Dr. Stanton, in answer to my question earlier whether CBS in the particular program we are talking about today did actually transpose

or juxtapose a response to a question at a given place you said that

your answer was that yes, you did edit. Now we had some discussion
111

that followed on what is editing. Do you answer now that you did

not on this particular film put one question and the answer to another

question together?

Dr. STANTON. Mr. Pickle, I must go back to what I said earlier. It

is very tempting for me to get into a discussion with you on this.

Mr. PICKE. WellDr. STANTON. And we are proud of the broadcast and I said I

thought it was fair, but I must respectfully decline any discussion

with you about specific treatment of this.

Mr. PICKLE. Can I assume that if there had been a question, a question No. 1 and an answer to question No. 1, and they were together that

you would explain that and there would be no problem to this committee, but since you will not say that a question in one instance was

asked and an answer to another question was put together later I have

to assume then that editing would not just be cutting out parts but

would also give you the right to put questions and answers together

that were not the same question and answer, is that correct?

Dr. STANTON. I must say to you again that I am not prepared to go

into the editing process in this particular broadcast.

Mr. PICKLE. Now why won't you answer that? We want the truth,

the facts. I for one do not want to charge you with deceit although

the broadcast has a kind of strong approach to it. I don't make that

charge but I ask for the facts and the truth. Now why don't you tell

us what are the outages and the sequence of questions and answers?

Dr. STANTON. Mr. Pickle, this is the very heart of our whole difference here that divides us this morning.

Mr. PICKLE. All right.

Dr. STANTON. As a matter of fact, in a very unique set of circumstances you have the outtakes on one of the participants here, outtakes in the sense that you have the full transcript.

Mr. PICKLE. Yes, we have that but you know we don't have the outages or the outtakes of the particular challenge made against the network by the person Mr. Henkin and the Pentagon. We do not have

those. This is the question.

Now I am not an attorney so let me talk to you just in general

terms again.

Dr. STANTON. Again not to be argumentative but it seems to me

that you have everything you need to answer the question that you

were putting to me because you have the transcript of the actual

interview.

Mr. PICKLE. I don't want to cut off your response but obviously

there is a difference between what you think and what we think and

that is the purpose of this particular hearing.

Dr. STANTON. I agree.

Mr. PICKLE. Now, Dr. Stanton, there is contention by some Members of the Congress, of the public, even journalists and others who

have written in on this that CBS, by failing to give us the outtakes

in this particular interview, is afraid for the truth to be known or to

be told. Do you deny that?

Dr. STANTON. I deny it.

Mr. PICKLE. Well, since there is such a controversy that is swirling

around over this particular issue, would it not be possible for the public

to make a proper decision either through their elected representatives,
112

us, or the courts but the public make a decision if these outages were

made available? Could we know whether you were right or we were

wrong if that was furnished?

Dr. STANTON. This again is why we are here because it seems to me if

any official organization has the right to determine and quote what is

the truth, this will have a very chilling effect on all of journalism but

particularly on the CBS news organization.

Mr. PICKLE. Well, isn't the only way we will ever really know the

answer to this controversy is for these outtakes to be made available

and known to the public?

Dr. STANTON. I think someone is going to have to weigh the desirability of doing that as against not doing it and 

Mr. PICKLE. Now who would that be? Who would make that

decision?

Dr. STANTON. I suppose if we went all the way on this, sir, it would

go to the courts.

Mr. PICKLE. Well, do you object to Congress making that decision?

Dr. STANTON. I do object to having Congress—

Mr. PICKLE. You object to Congress making an inquiry into it?

Dr. STANTON. Now we are back into semantics here because an inquiry is perhaps one thing, a general inquiry is one thing and a specific inquiry is another, and I think as soon as journalists know that

their outtakes are going to be subjected to determinations by a Government agency or an official body, particularly when the broadcast has to

do with the Government, that this is going to have a chilling effect on

them.

Mr. PICKLE. You answered Mr. Manelli earlier or you made the

statement that in certainly some instances you do give to us outtakes

and that 

Dr. STANTON. Not for the purpose, Mr. Pickle, and if I didn't make

that clear I apologize—not for the purpose of judging our editing

process.

Mr. PICKLE. Now you have made outtakes available to this committee because I have been a member of the committee when you have. Now

if you do it in some instances, do you want them to reserve the right

unto yourself in what instances you do make it available and in what

instances you don't?

Dr. STANTON. I think we have the obligation to defend the First

Amendment and I think that the decision as to whether we yield on the outtakes is one that we have to make with that in mind.

Mr. PICKLE. Now you fall back on that Frst Amendment contention

and that is not the charge we are possibly going to level or do level at

you at that point. I hone the press does make it clear that this is not

our challenge to you, that the question is, Did you deceive the Amer- ican People when you asked one question and showed the answer to an- other question and put them together where there was deception? To know the answer to that it seems to me like we need outages to know

whether you did or did not deceive the public.

Dr. STANTON. I recognize that you may not be saving that this is a

First Amendment issue but I must sit before you in all seriousness and tell you that I believe it is a First Amendment issue. I must say to you that if you get the answer that you are determined to seek, I think that
113

this will have a very chilling effect on free journalism and I think

that falls right under the First Amendment. Now I am not saying that

you intended that, I am simply saying that where I sit on this side of

the table that is the only way I can read it.

Mr. PICKLE. Now when you took the oath this morning you said

you were going to tell the truth, the whole truth. Now you just want

to give me part of the truth or part of the facts. Now why do you just

want to just halfway tell us the truth?

Dr. STANTON. Mr. Pickle—

Mr. PICKLE. I don't want to charge you with that but you can see

I don't think we are given the full facts.

Dr. STANTON. I understand your line of questioning and I also address you respectfully back to what I said in my statement and that is

that I could not answer particular questions about this particular

broadcast under compulsory 

Mr. PICKLE. Did the subpena you got make any reference to furnishing the newsmen's notes?

Dr. STANTON. No. As I recall, and I don't have it in front of me 

Mr. PICKLE. I hope that is observed, that we are not asking for newsmen's notes or reporters' notes and that was not in the subpena and

you admit that.

Dr. STANTON. You are asking for outtakes, and in my book those are

notes.

Mr. PICKLE. Now you have answered me two ways. You have said,

yes, the subpena did not ask for notes but you said it is in effect notes,

and that is your contention?

Dr. STANTON. That is correct.

Mr. PICKLE. Now you stated that if the newsmen are told that their

notes, their films and their tapes would be subject to a compulsory

editing inspection that the scope and the nature and the vigor, I believe you said, of their news gathering or reporting activity would be

curtailed. You go then into a dissertation on page 6 that what you are

objecting to now is this is Government control of the press. Is it your

contention now that we are trying to set up some kind of Government

control of the press?

Dr. STANTON. I think it is where you come out if you persist in this

investigation.

Mr. PICKLE. Now, Dr. Stanton, if your answer is yes 

Dr. STANTON. My answer is yes, that is my opinion.

Mr. PICKLE. We do not want to set up any kind of Government

control but we as the trustees of the people have a right to look into

the broadcast to see whether what the people have seen did in fact take

place and in the proper sequence that it had been portrayed on the

screen. Now that is not Government control.

You said here on page 6, "What we do object to is being subjected

to compulsory questioning—" Now I will pause there a moment. Compulsory questioning as if we were forcing you to do something. Who

else is going to force you or who else is going to bring this to your

attention if we don't call you up here? When you use the words "compulsory questioning" you leave the connotation in the public mind

that we are doing something by force and in an improper. manner.

Let me go ahead and continue it.
114

Dr. STANTON. May I interrupt?

Mr. PICKLE. I will come back to you.

* * * in a Government inquiry, expressly intended to determine whether this

or any other CBS news report meets Government standards of truth.

Now when you use the words "Government standards of truth" you

are trying to imply, I believe at least, that you are saying we are trying

to set up Government censorship or Government control, that we are

using Government standards of truth. Now who else is going to pass

judgment on these matters if it is not the Government of the people?

We are representing the people.

Dr. STANTON. Mr. Pickle, that is the whole point, that is why I am

here, and that is the reason I refuse to comply with the subpena. If a

subpena is not compulsory, I don't know what is. You are the Government and this was a broadcast about a Government activity.

The CHAIRMAN. Would the gentleman yield?

I think this has all gotten out of context. I think, Dr. Stanton, you

and Mr. Cutler know why you are here, not to have anything to do

with the First Amendment at all. You are here because this committee

has the obligation that was given it by the Congress of the United

States to oversee all Federal communications and to direct the Federal

Communications Commission as to what they are to do and to make

laws that have to do with television and radio, and only for that matter

are you here, for the fact that we want to make some laws or see that

any other laws should be made and we need those outtakes to see

what we should do.

We know what you did and what you said and we don't agree with

you, as Mr. Springer said. I don't accuse you of it because I don't think

you had a thing to do with it. I think you are just a figurehead there

that the others are using—I am telling you that—and they have said

to you, "This is what we have to do," and you are following their

orders.

Dr. STANTON. Mr. Chairman you give me a difficult choice there.

The CHAIRMAN. I know I do. I am telling you what I believe. I said

it was my opinion and that you have been forced to come down here

to defend your position because of others who forced it on you. I know

of some of the arguments that have been had internally that have come

to me, but we have not asked you to divulge anything or we have not

infringed your First Amendment rights or censured the press. Our intention is not to censure anything you do. Your attorney can keep

whispering all he wants to now because he is not here to advise you and

put words in your mouth, he is here to give you your constitutional

rights but I notice he has been whispering in all these things.

You are here only because we want to get at the facts so if we need

legislation we want to pass it. You have not been helpful to us. This is

your Government. If this does not happen and something else can happen and something goes wrong, you would not be a part of it because

you have been withholding something so that we cannot make laws. If

they were not good laws, the Members of this Congress would not pass

them; and if they are not right, then the courts will then throw them

out.

Now that is the reason you are here today and I would not hide be- hind the First Amendment because it has nothing to do with this, it does

4

•
115

not have anything to do with your editing. You are here only because

of the fact that you misplaced and misquoted and we want to find out

if that is true. If it is not true, you ought to bring out the outtakes

now.

That is all I have to say.

Mr. PICKLE. Mr. Chairman, may I inquire of the Chair what is the

intention of the Chair.

Then I will curtail my questioning at this point so that the other

gentlemen who have questions may ask them and reserve the right to

ask other questions later.

The CHAIRMAN. Mr. Shoup.

Mr. SHOUP. Thank you, Mr. Chairman.

Dr. Stanton, I think that perhaps you should hear what my philosophy on this is. I think it is very unfortunate this interview came up on

such an emotional issue as the Pentagon. I am somewhat disappointed

in CBS in their responsibility that you speak of and that they have

seized on this to becloud the issue of what we are talking about. I refer

to the very helpful copies of all the editorials, at least those that were

sympathetic to your position that have come from throughout the

United States.

I am sure that my colleagues have recognized a very common practice which is used by lobbyists in which mimeographed opinions are

sent out and all you have to do is sign your name and put an 8 cent

stamp on it and send it to your Congressman. This seems to be the way

in which they have reacted. As I say, it is unfortunate that CBS has

beclouded the issue with the Pentagon at such time as we have now.

No. 2, I do not consider that we sit here—and I am sure this is

correct when I say it, we are not sitting here as a court, we are not

sitting here as a jury, there will be no sentence handed down. I think

what we are trying to do at least what I am trying to do, I am trying

to help maybe you and television journalism because, Dr. Stanton, the

credibility gap on the truthfulness and the honesty of news reporting

is suffering and suffering badly. What we are saying is, what can

we do in our position up here with the responsibility that we have,

what can we do to help so that you can present the news to the public

and close this credibility gap?

It always appears to me that CBS is either deliberately or innocently, or perhaps I should say you, Doctor—you are refusing to

accept the thrust of this entire investigation because we are concerned

with the adequacy of the laws to protect the public from deliberate

deception. I will add another word to what Mr. Springer started. I

would say dishonesty also is added to deception here.

We want the adequacy of the laws to protect the public from

deliberate deception and dishonesty, and at no time have I or this

committee referred to distortion of truth as it is normally accepted.

Continually from the start we have spoken of deception.

I would be the first, Doctor, to agree with you that it is very difficult,

practically impossible, to legislate truth because I think, as you have

quoted, truth is in the eyes of the beholder, and it is. So we must accept

this, but we are looking for deliberate deception and dishonesty. I

have a question now for you, Doctor, after I have given you my

philosophy on this and I hope cleared up some of the questions you
116

may have had of which direction at least this member of the committee wants the investigation to go.

Let me ask you this, Doctor, in your justifying of blanket editing.

You have sat there and said that you will not answer any questions

as to the proper use of editing, and you speak of editing 

Dr. STANTON. I am sorry, I did not say that, sir.

Mr. SHOUP. I am sorry, sir. It was my impression that each time

you were questioned on editing that you preferred not to answer.

Dr. STANTON. Just so the record is clear, what I was referring to

was the editing of this specific broadcast. I am perfectly willing to

talk about editing generally.

Mr. SHOUP. You are not prepared to justify the editing of "The

Selling of the Pentagon"?

Dr. STANTON. Under the subpena I am not.

Mr. SHOUP. Thank you sir. Let me take a very simple type of a

suggestion which I think illustrates what we are after. I myself, Doctor, am not concerned in the end result of whether the editing of "The Selling of the Pentagon" was done correctly or not. What I am look- ing for is: Is it possible and is it a practice of editing in television to

deceive the public, and if it is then I think that it is our duty to do something about it, to work with you to do something about it, if you

prefer, which I am perfectly willing to do.

For a very simple illustration which can happen if we do not have

some control on editing, Doctor, if I would ask you these questions:

What color is the sky when there are no clouds in it? I think your answer would be, "Blue." Then my next question would be: What color is grass, Doctor? and your answer would be, "Green." I think this is

right. Then merely under the justification of editing it would be very possible for the editing to come out that the quoted answer to the question of Dr. Stanton is that the sky is green and this could be justified on the fact there was not enough time in the production to answer

both questions.

Now I know, sir, that you say that this is a responsibility but, Doctor, I think we all know that it is necessary to have restraints on all human beings. Now would you justify this type of editing?

Dr. STANTON. If you are saying to me is it possible to give a "No"

answer when you have given a "Yes" answer, the answer obviously is, "Certainly it is possible." But you ask me whether we do it and I will

say to you that we do not do it.

Mr. SHOUP. I think that is the entire thrust of this entire investi- gation and we are asking you to help, we are asking you to help us to determine if it is being done—you, CBS, to help the entire industry.

Dr. STANTON. I think you have to weigh that against the encroachments on the First Amendment.

Mr. SHOUP. I am sorry, sir I don't believe this has anything to do with the First Amendment.

Dr. STANTON. This is what divides US here this morning.

Mr. SPRINGER. Would the gentleman yield?

Mr. SHOUP. Yes.

Mr. SPRINGER. Dr. Stanton, some real thought—and this is not exactly on the point. I don't want to get away from the fact of the First Amendment. Deceit. That is what we are talking about and we don't
117

think that is protected by the First Amendment, a deceit at least in the

television industry. Let me come to something a little more broad.

I think as long as you continue to do this, and I don't think you can

deny that many of these are one-sided presentations. The mail that

comes into this office on some of the investigations that have been made

by the FCC shows that some of these things in some of these documentaries never took place. You are willing to concede that, aren't you?

Dr. STANTON. Are you talking about CBS programs?

Mr. SPRINGER. Well, was "Hunger" a CBS program?

Dr. STANTON. Yes. I was not aware that the Commission said it

did not take place.

Mr. SPRINGER. It did not say it did not take place but it showed that

one part of it was false, its investigation so showed.

Dr. STANTON. Would you mind telling me what part that was?

Mr. SPRINGER. Yes. If I had the time, I could go out and quote from

the report. This was the reference of the child.

Dr. STANTON. I was not aware that the Commssion said that that

was false. I thought it was ended with it not being clear either way.

Mr. SPRINGER. No, that is not the way I read the report. Now maybe

you read it different but that is what I understood that the Commission did say, that the child did not die of malnutrition, it died of an

infection and it showed that neither the father nor the mother were

suffering from malnutrition themselves. Now this is the way the

report read.

Now I don't want to get into an argument but I am saying as long

as you do these controversial programs, isn't there some way in fairness—and this is an entirely different subject and I would like for you

to think about it because I mean philosophically I wish that CBS

would think about it and NBC and ABC. In the Public Broadcasting

Act we passed 3 years ago, we put in there, and may I say to you that

the people who I felt were most responsible for the Public Broadcasting Act which as you know is now the program performing part of

public television, wanted this sentence put in, and I quote it:

All controversial matters must be presented in perspective and in balance.

Now are you familiar with the British Broadcasting Corp., BBC?

Dr. STANTON. I am.

Mr. SPRINGER. They have much of a similar provision in that act.

Now I just think unless you can come to some kind of a conclusion of

something similar to this that you are going to continually have this

rhubarb going on between one section of the population of this country

and another. Now why should you not do this?

Now let me just go a little bit further. Since we put that in it has

worked wonders for public broadcasting. For instance, if you saw Bill

Buckley last night, here was Mr. Donald Dellums from California

with a beautiful program; I listened to it. Buckley was on one side

and Dellums was on the other and they both made a beautiful case

but at least I learned something. I have not talked to Mr. Dellums

since he came to the Congress and I got a lot of ideas out of Mr.

Dellums. Here was a conversation that took place for an hour and it

was educational in every way because questions were asked from the

audience.
118

Now let's take just one more program, Dr. Stanton, The Advocates.

I have talked with both Macy and Pace about this, and time and again they developed that into a beautiful program. Instead of just taking

two lawyers, they started out in the beginning trying to find some kind of a format. I thought it was a little dull myself. Then they went

out and got actual people who were on one side, like they had Senator

Moss the other night and they had a former member of this committee from North Carolina, Mr. Carnegie, on the other side—a good

argument over the tobacco question by two people familiar with it,

one represented legally, a lawyer, and the other was a fellow who was violently opposed to the advertising of tobacco. I learned a whole lot from this program because I got both sides.

I don't know whether I am doing any good with you or not but I

am sure trying to sell you on some idea that you are not going to be

back up here again because I don't think that this is the place where a

network ought to be except under the most extreme circumstances. I

would hope that you people in TV would give this some thought about

trying these balanced programs as an experiment and see if you cannot make just as interesting a program out of it as you can with this

one-sided stuff.

Dr. STANTON. Mr. Springer, in describing these two broadcasts I

am familiar with them and I agree with you completely. There are

many ways to achieve balance and fairness in broadcasting. You can

do it within a broadcast, you can do it within a single spokesman, I

suppose, if it is not too dull and you can achieve balance by having

a variety of people appear with various points of view in the schedule.

Mr. SPRINGER. Let me compliment you. I think these and ones that

you and NBC are doing between 11 and 1 o'clock are good because you

take one from the administration and one from the other side and

you alternate them each Sunday and you get a different viewpoint.

But you are coming down almost in the documentary stage which

goes along for an hour and these are the ones I am talking about

which are really the controversial subjects.

Dr. STANTON. There are a variety of those and I don't think we

ought to characterize all documentaries the way you are characterizing them because on occasion we do the investigative reporting type

of broadcast. "Hunger in America" was that type of broadcast. "The Biography of a Bookie Joint" was that kind of a broadcast. Now

you cannot balance, it seems to me, if you are going to expose corruption in the city government, or if you talk about heroin you certainly

can't. If you are going to do the one that we did on heroin, I don't

think you can turn around and show the good effects of heroin within

that one broadcast.

Mr. SPRINGER. Let me say you are getting there, Doctor, into viola- tions of law, and I think that is something different. I will concede

that with you. There you are going into questions of violations of laws.

Dr. STANTON. There we were doing investigative reporting but on

many broadcasts on controversial issues we do the same kind of a

balance job that "The Advocates" do.

Mr. SPRINGER. Well, I sure hope you can do them on these big ones like "The Selling of the Pentagon" and "Hunger" and some of the others.
119

Dr. STANTON. In the case of "Hunger," sir

'

the President of the

United States gave that broadcast the salute for bringing that problem

out into the open. We didn't say that everybody was hungry but we

said a substantial part of the country was hungry. I don't think that

you can balance the ones who are fed with the ones who are not fed.

Mr. SPRINGER. Yes, but in that you didn't go into anything about

what was being done in the field of hunger though, Dr. Stanton.

Dr. STANTON. Oh, yes we did, sir.

Mr. SPRINGER. Well, if you did I didn't see it on your program but

I won't argue about that. I wanted to see if I could get some dialog

with you today as constructive as we have up to this time in getting

on these controversial subjects some kind of balance.

Dr. STANTON. Mr. Springer, we all live under the Fairness Doctrine

and there has only been one case in history where CBS News has been

brought up short under the Fairness Doctrine and that had to do with

the President's five broadcasts on Indochina and we were ordered by

the Commission to balance that under the Fairness Doctrine, but all

the other times where the FCC was looking over everything we are

doing we have not been found guilty of not being fair.

Mr. SPRINGER. That has been changed, Dr. Stanton. I am not going

to get into an argument. If you will recall about 15 years ago when

Mr. Hyde was Chairman of the Commission, they had a rule down

there if you wanted to make a statement in an editorial or take a position you had a duty to go out and find somebody on the other side and

bring him in and put him on the program. Now that has been relaxed

and you no longer have that any more. The broadcasters protested so

they abandoned it. I am just giving you the picture that this thing

has changed and changed and changed where your duty has lessened

as time has gone by to present the other side of the coin.

Dr. STANTON. I would question that, sir.

Mr. SPRINGER. Now you will admit that you are no longer required

to go out and find somebody on the other side as you were 15 years

ago. That was a rule of the Commission.

Dr. STANTON. If we are not going to be brought up to the Commission under the Fairness Doctrine, whether they order us to go out and

find somebody on the other side or not we are obligated to treat the

subject fairly. Now whether we are under orders to do it or not, we

do do it. There has not been any relaxation on the Fairness Docrtine.

Mr. SPRINGER. I have taken more time than I should.

Dr. STANTON. Again this is what I hoped we could do today, is talk

about some of the problems we have got.

Mr. SHOUP. I think, Dr. Stanton, that possibly is what I was trying to say to you, although rather than get into a great number of

fields I would like to narrow it down to our concept of what the problem is and that is what we are trying to do here. You know it is very

possible, Dr. Stanton, we could come out of this particular hearing

and say there was no deception on the part of CBS, but apparently

CBS goes in with the idea they are guilty unless proven innocent. I

hope you accept the fact from me that what we are looking for is the

truth in this, not the truth in what was presented but the truth in how

it was presented.
120

I have a few questions, Doctor, and of course being the last one to

ask them they may repeat themselves somewhat. I hope you will bear

with me if you have answered these questions before. A few of the

things which struck my mind were that generally speaking, and I

think I quote from your doctrine in here, that when CBS edits films

of interviews to be used in news or documentary programs, does it

make any particular effort to let the audience know when footage has

been clipped out from scenes which appear to be continuous?

Dr. STANTON. There are visual interruptions in the editing process

that would give you a clue. You see a different angle of the speaker.

When we report the President's address from the night before, I

don't think anybody is in doubt that we are showing excerpts from

the entire speech. This is the nature of journalism.

Mr. SHOUP. Right, sir. Now you are speaking, of course, of the video

portion. I would direct the same question on the audio portion.

Dr. STANTON. Well, you don't look at television with your ears, you

do it as a combination of eyes and ears and there is no blip.

Mr. SHOUP. My point is, sir, that if you do make this distinction between them, however, you do not make the distinction that if the words

which are accompanying the video are in fact in continuity, have

continuity. This I believe has been the charge, has it not, that the continuity of the video does not correspond with the continuity of the

audio? Is this correct?

Dr. STANTON. If you mean do we take the camera and go to a reaction shot and show the audience in a theater or a home 

Mr. SHOUP. No, sir I am speaking of a man being interviewed in

which he will be asked a question and then the answer is not the

answer that he actually gives. The continuity of the video you say is

from the different shot. How about the continuity of the audio? Is

there any attempt to tell the public that the answer to this question

was not in response to the question?

Dr. STANTON. It varies. Sometimes there is and sometimes there is

not.

Mr. Suoup. May I be specific then, sir? Was there in the case of "The

Selling of the Pentagon"?

Dr. STANTON. I have to respectfully decline to answer that question.

Mr. SHoup. Well, then may I put it this way.

Dr. STANTON. Let me go back just a minute.

Mr. SHour. All right.

Mr. STANTON. I want to answer again what you asked me before

about the green grass and the blue sky. There is no question that if

we want to be unfair and deliberately distort we can do it. There is

not any way that we could be prevented from doing that.

Mr. SHOUP. This is wrong, doing this?

Dr. STANTON. it is wrong for anybody to do it.

Mr. SHOUP. Yes, sir.

Dr. STANTON. What I was saying before was we don't do that kind

of thing but if you say to me, do we make up composite answers, taking material that reads on the same question from various parts of

an interview from time to time, we will do that but this is all under

the guise of a fair and objective reporting of what the person who

is answering the questions said.

4
121

Mr. SHOLTP. Dr. Stanton, I think you beg the question a little bit.

I think it is the same; deception is deception whether it is one word

or several words.

Dr. STANTON. The same thing. I think it could be the other way

around.

Mr. SHOUP. Then let me go back to one thing. You said that my

example was wrong and should not be condoned and I think that this

is the object of this particular hearing, to find out if such a thing is

happening and if the public is being deceived; and if it is, then I

would think that we have some responsibility to insure it isn't. We

are not accusing you of doing that, we are asking you is this happening in the industry, particularly CBS? In asking that question of you

we say this is the way we would like to find out, we would like to see.

You say that the editing was fair. All we are asking is to see if we

agree with you; show us, please. The public has a right to know.

Dr. STANTON. And that is the nub of the whole discussion.

Mr. SHoup. Yes, sir; I realize that.

Well, I think you have answered my question in that you say that

you have attempted to find a place in television for the three dots that

printed media uses and you have been unsuccessful but you do think

that we should try to find some way to do this to inform the public.

Dr. STANTON. I meant what I said when I was quoted from some

comments I made back in the late fifties that we want to have everything as clear and as understandable as it can possibly be. When we

have an interview, for example, with a head of state and hP tells our

before the interview there are certain areas that I will not discuss with you in this interview, we set that out before the broadcast

so the public knows that we didn't get into those, pa rti cull r areas.

Take last night, for example, when we had Ellsberg interviewed by

Cronkite. We made it clear to the audience there were certain questions

we didn't ask him. Now that is all to the end of having a clear understanding on the part of the public about what we are doing. We don't

mind criticism and we are not saying we don't make mistakes because

we make them from time to time; it is inevitable when you have an

organization as big as ours and filling as much time as we fill that there

will be mistakes.

Mr. SHOUP. Dr. Stanton, I think that you are justifying the fact,

that you notified the public that the person being interviewed has requested not to answer the question. Now did the public have the right

to know that when CBS, those who are conducting an interview, do

the same thing?

Dr. STANTON. Well, we think the public understands that but let me

say this. If the public does not understand that, then we have a responsibility to the public to make sure that it does understand that.

Mr. SHo-crp. That is why I agree with you and I say again this is

exactly what we are trying to do here.

Dr. STANTON. The only difference between us is that I think we

ought to be doing it and the Government ought not to be making us do

it when it gets into the field of ideas and speech.

Mr. SHourP. Dr. Stanton, a short time ago you referred to a statement which you said you still adhered to, CBS does, dated 1959. That

is 12 years ago. You have been allowed to try for 12 years and it ap-
122

pears as though, at least from the accusations, it is not better; if anything, it is a little worse. It seems that you would possibly be the one

that would be asking for a little help because you have not been

successful.

Dr. STANTON. Well, I can understand your point of view on that. I

don't obviously agree with it. I don't want you to think that we have

been standing by idly and not reexamining our policies and our practices. We do that all the time. Criticisms on the part of the Washington Post or any responsible journalistic enterprise having to do with

our broadcast are taken very seriously. It is one thing, it seems to me,

to have a peer group make a criticism; it is another thing to have the

Government make that criticism when we are in the area of a free

press. That is the only difference that divides us here today. Tam just

afraid that what we are going to end up with is that the cure is going

to be worse than the disease.

Mr. SHOUP. I think this is what we are trying to determine in these

hearings, is there a cure that can be used. The quote you use I think

sets it out very well. It behooves us as well as you to search for something better, and I think this is what we are doing.

Doctor, I think we have gotten afield a little bit here. Shall we continue? May I?

Dr. STANTON. Certainly.

Mr. SHOUP. Then you have no objections if a procedure could be

conceived to tell the people when the continuity is not adhered to,

when there is editing in the question and answer type interview? You

would have no objections to that? In other words, what I am saying,

and maybe I am repeating what you have said, is that you are searching for a substitute for the three dots in the newspaper press.

Dr. STANTON. That is correct and I think entirely proper, if Mr.

Springer will forgive me, that the journalist should be searching for

ways to make sure that people understand correctly what is on the air.

Mr. SIIOUP. Dr. Stanton, I ask in all sincerity, what would be your

reaction to a regulation requiring such a disclosure?

Dr. STANTON. My reaction to that would probably end up being

very difficult to apply and it might turn out to be meaningless because

if you develop some set of standards, and I don't know what they are

and we tried to provide for every eventuality, I think it would be

almost impossible to administer. I would much rather if you will

charge the broadcast news organizations with the responsibility of

being fair and making clear to the audience exactly what takes place

in the broadcast and let each organization work that out to his own

end.

There may be a better way that NBC can do that than we have done.

If they have, we will follow. We are not that hard bound that we

won't adopt from someone else if we see they have a way to solve the

problem. If you have a way to solve it, I would be delighted to sit

down and talk with you as one citizen to another. I am troubled when

it is done by the Government.

Mr. SHOUP. Doctor, I think one thing we have to do before we

search for a solution, we have to identify the problem.

Dr. STANTON. We have identified the problem.
123

Mr. SHour. Is it a problem which is detrimental to the public, so,

I think we should sit down and discuss it. We are a long way from

legislative action.

Dr. STANTON. Well, I believe you were here earlier when I said that

in the spring of a year ago we produced a special film for our own

review to see just what these techniques were and how they could be

applied so that we are working on this right now. This does not come

about as a result of this particular inquiry. This is something we have

been wrestling with for some time. We may end up as a result of our

own evaluation of developing a new set of policies for interview

broadcast.

Mr. SHOUP. Doctor, one reason that I am here today and have

agreed along with the chairman and the rest of the committee that

there should be these hearings, I do not think that you have done this.

I do not think you are discharging your responsibility to the public,

and because of that we are asking you here to defend yourself.

I do not think you are and the information we have to date to me

clearly indicates that there is irresponsibility on the part of CBS and

it borders on deception or, as Mr. Springer said, on fraud. I think you

came here originally and I think your first statement said in answer

that you are here to help. However, you would not answer questions on

"The Selling of the Pentagon" but you were here to help.

Dr. STANTON. I hope you don't feel that I have not been trying to be

responsive to your questions.

Mr. SHOUP. I could ask the reporter to read back there but I recall

some questions asked by Mr. Pickle that I do not think you were helpful on and that you refused to answer them.

Dr. STANTON. I thought I had staked that out in my original statement when I said that I would not answer particular questions about

a particular broadcast.

Mr. SHOUP. In other words, you would help us in some areas but in

other areas you would not ?

Dr. STANTON. In the broadcast areas of discussion of policies I am

willing to sit and talk as long as you are but I am not prepared and

don't want to get into the particular editing of "The Selling of the

Pentagon" or any other particular broadcast.

Mr. SHOUP. Dr. Stanton, you are asking for trouble because you

know you are talking to a politician when you say you want to talk

as long as he does.

Dr. STANTON. People in broadcasting do pretty well on that score,

too.

Mr. SHOUP. That is right, Doctor.

Well, Dr. Stanton, if I can go back to your reply to the subpena here

that you read earlier, I have several questions but I would like to start

with this particular one on what on my copy is page 7, I don't know

exactly where it is on yours. On page 7 of your statement you mention

having received the support of, among others, the Association of

American Publishers. Well, Doctor, I would like to read to you some

brief excerpts from a letter the chairman of this subcommittee received

from a member of the Association of American Publishers. The name

is Mr. Richard G. Underwood, director of Syracuse University Press

62-142 O-71 9
124

and a member of the Association of American Publishers. Have you

seen this letter?

Dr. STANTON. I have not.

Mr. SHOUP. I would ask that you supply the Doctor with a copy of

this letter, please.

I will take the prerogative of not editing but quoting in certain

places in the letter, Doctor. As you notice it is directed to Chairman

Staggers and it is dated April 19, 1971. Now I have on my copy underlined and I would like to read to you a sentence.

As the director of a book publishing house which is a member of the Association

of American Publishers, I should like to inform you that Mr. Cobb's telegram—

and, Dr. Stanton, to identify Mr. Cobb, he is the president of this

organization—

in no way represents the views of all the members of the AAP, who were not even

consulted about their views before some of the office staff and/or officers of the

Association composed and sent the telegram to you.

Then I will skip down to the next paragraph in which he continues

and says:

I hope, therefore, that you will not attach undue weight to Mr. Cobb's telegram,

but will take note of the fact that among the 262 members of the AAP there are

other and even opposite views of the matter your subcommittee is investigating.

I continue to the next paragraph:

My own view is that I do not welcome deceptive propaganda from either the

Pentagon or a television network; and further, that one is as harmful as the other

since both are hucksters and inadequately controlled.

There is more to the letter but I think those are the salient points I

would like to make in there and point out possible deception even in

your own letter or your own remarks to this committee where you inferred that the Association itself was supporting your stand and deploring our investigation. I think this points up to the fact that there

was only—and I think that if you had been specific that only Mr. Cobb

of this particular organization supported your view rather than the

entire organization. This to me, Doctor, is an example of deception.

Dr. STANTON. Mr. Shoup—

Mr. SHOUP. Pardon me, Dr. Stanton.

Mr. Chairman, may I ask that this letter be entered into the record.

The CHAIRMAN. Without objection, it will be made part of the record.

(The letter follows:)

SYRACUSE UNIVERSITY PRESS,

Syracuse, N.Y Apri119, 1971.

HARLEY O. STAGGERS,

Chairman, Special Subcommittee on Investigations, Interstate and Foreign Commerce Committee, U.S. House of Representatives, Washington, D.C.

DEAR CHAIRMAN STAGGERS: I received this morning a copy of the text of a

telegram dated April 16 and signed by Mr. Sanford Cobb, purportedly representing the views of the Association of American Publishers, Inc., on the subject of

your Subcommittee's subpoena to CBS in connection with their documentary, The Selling of the Pentagon. As the director of a book publishing house which is

a member of the Association of American Publishers, I should like to inform you that Mr. Cobb's telegram in no way represents the views of all the members of the AAP, who were not even consulted about their views before some of the office staff and/or officers of the Association composed and sent the telegram to you.
125

Indeed, I deplore the high-handed use of AAP's members for the political purpose of whatever small group was responsible for the April 16 telegram. On

matters of this sort no such clique can speak for the entire membership unless

a poll is taken. I hope, therefore, that you will not attach undue weight to Mr.

Cobb's telegram, but will take note of the fact that among the 262 members of

AAP there are other and even opposite views of the matter your Subcommittee

is investigating.

My own view is that I do not welcome deceptive propaganda from either the

Pentagon or a television network; and further, that one is as harmful as the

other since both are hucksters and inadequately controlled. Of the two, only one

is even remotely accountable to the electorate; the other is accountable only to

its stockholders and advertisers. You and your Subcommittee have my good

wishes.

Cordially yours,

RICHARD G. UNDERWOOD, Director.

Dr. STANTON. I think in many organizations there may be differences

in the membership regarding an organization action. If you are charging me with deception, the fact that I had an official message from this

organization that they supported me I think that is grossly unfair.

Mr. SHOUP. I would think under the circumstances that you should

have indicated that the president of the organization supports you.

Perhaps we are nit-picking, Doctor, but I would like to point out that

there is a question in your statement here that all of these very respected organizations support you with the inference that the entire

organization does.

Dr. STANTON. Mr. Shoup, if you received a communication from the

president of an organization, would you then go to all members of that

organization and ask them if they supported the president of the

organization in taking a stand? Isn't it reasonable to assume that if the

head of the ASNE and the head of the publishers group and so forth

sends you a communication that you assume that this has been properly

handled by that organization? Are we to go behind their word?

Mr. SHOUP. No, sir. May I ask you this question then. Is it possible

then, Doctor, that of this list which you have given us and you have

referred to as those who are supporting your stand, is it possible then

that this is only the opinion of one person of that one organization?

Dr. STANTON. It is possible. It is highly improbable.

Mr. SHOUP. Thank you, sir.

I have nothing more.

See appendix II, p. 352, for additional information submitted by

Dr. Stanton.)

Mr. PICKLE. Mr. Chairman.

The CHAIRMAN. The gentleman from Texas.

Mr. PICKLE. I just want to add a couple of things, Mr. Chairman.

Thank you.

We are looking for a better answer and perhaps if we can find an

answer to that three dot matter or if we could subscribe to the suggestions of Mr. Springer that programing would be balanced and objective, maybe that could be an answer. I want to pose another particular

question.

Dr. STANTON. Mr. Pickle, are those not two entirely different

questions?

Mr. PICKLE. Well, they are related and I don't know what you make

of your own statement on it.
I

126

Dr. STANTON. What I was talking about, Mr. Springer, was the

balanced kind of broadcast such as "The Advocates" or he used the

example of Bill Buckley's broadcast last night. In the case of Mr.

Buckley's broadcast that is live or live on tape, I don't believe there is

any editing involved there at all so that the three dot question is not

part of that.

Mr. PICKLE. It would not be applicable?

Dr. STANTON. That is all I meant. It seemed to me these were unwed.

Mr. PICKLE. The reason I raised the question, I wanted to ask your

suggestion on another possible approach, some kind of restraint or

balance. How would you feel about a network being licensed?

Dr. STANTON. I am on the record on that score. I have always said—

not always, I have said on the record that if the FCC wants to accomplish directly what it now accomplishes indirectly through the ownership of our stations, I would have no objection to it.

Mr. PICKLE. Let me state my question again. What is your position

with respect to the licensing of a network?

Dr. STANTON. Well, until I have a specific bill in front of me I don't

think I can answer That question but I did try to be responsive when

I said that if the regulation embraced in such a licensing procedure is

the same that is now accomplished by going directly to the station and

having it come back to us that way, I would have no objection.

Mr. PICKLE. Well, the FCC has some possible control over the stations to a network through the ownership of the individual stations

but that is all. We have no sort of surveillance with respect to the

network itself as a licensing matter. Now I am asking you what would

be wrong with the suggestion that a network be licensed?

Dr. STANTON. Mr. Pickle, I don't know how I can give it to you any

plainer than I have given it to you. One of the things that has troubled.

us about the licensing of a network is that if we didn't own any stations and were not licensed for stations, I have some question understanding what the licensing is all about because this would be like

licensing the AP or licensing UPI. Put that aside for the moment.

If all you want to do is to get into network practices having to do with

affiliation contracts, term of contract, hours of broadcasting and so

forth, things that are now down by putting the regulation on the sta- tion that you shall not take more than so many hours during a certain time span from a network, if you want to do that directly, I have no difficulty with that. In fact, from a practical point of view you recog- nize, I am sure, that because we are the licensee of stations and we

cannot ignore the fact that because we operate a network that we can

go one direction and we have stations over here, we have to face those

problems.

Mr. PICKLE. Well, I don't propose to argue the merits of the licens- ing approach. I wanted to get your general reaction and you, I assume,

do not want to be licensed as a network.

Dr. STANTON. Mr. Pickle, I don't want the record to stand that I

don't want to be. I have said that if you want to accomplish what you

now accomplish through the regulation of stations and get at us that

way, if you want to do that directly, we have said in the past that we would be perfectly willing to be licensed that way. If you ask me whether I prefer it, no, I don't think I would prefer it; not because
127

we don't live under those rules now, we do, because our affiliates are

licensed. But I think it would be just another layer of bureaucratic

reporting.

The CHAIRMAN. As I understood, if this committee in its wisdom—

and it will be in consultation with you and with others—were to license

the networks, that you would not have any serious problem about

that.

Dr. STANTON. To be candid, Mr. Chairman, I would have to see what

the licensing entailed.

The CHAIRMAN. Yes. There would have to be open hearings.

Dr. STANTON. Certainly. I assume that is what you do.

The CHAIRMAN. Our counsel has a couple more questions that he

would like to ask you.

Mr. MANELLI. Dr. Stanton, you mentioned the chilling effect that

you felt the subcommittee subpena would produce. I wonder if there

might be another chilling effect that might be giving you some concern, noting the recent article in the Washington Post entitled "Laird

Refuses to Appear for Taped CBS Interview."

(The article referred to follows:)

[From the Washington Post, June 19, 19711

LAIRD REFUSES To APPEAR FOR TAPED CBS INTERVIEW

(By Michael Getler)

Defense Secretary Melvin R. Laird has refused to take part in a taped interview with CBS for a forthcoming documentary called "POWs—Pawns of War !"

The Defense chief, according to Pentagon spokesman Daniel Z. Henkin, "would

be pleased to appear on the program if the interview was done live."

Henkin said Laird's refusal to do the taped interview was "not a binding role

on all interviews," but that the POW issue "was a very sensitive matter" and

only a live interview would be acceptable.

Interviews recorded on video tape can be edited before being broadcast. One

of the Pentagon's chief complaints about CBS's award-winning "Selling of the

Pentagon"—which was sharply critical of Pentagon public relations—was the

network's editing of interviews with Henkin, assistant secretary of defense for

public affairs.

A negotiated settlement in the new dispute does not appear likely.

CBS News bureau manager in Washington, William J. Small, said yesterday

that there "are times when CBS News is delighted to put the Secretary of

Defense on live," but that "it is extremely rare that anyone is interviewed live

on a documentary, as Mr. Laird and Mr. Henkin both know."

"When newspapers and magazines concede to a similar request by granting

Mr. Laird a certain number of column inches to fill as he sees fit, then CBS News

will consider granting him a certain amount of time to appear live within an

otherwise filmed documentary. After such consideration," Small added, "our

answer will still be "no."

At the Pentagon yesterday, TV network reporters argued with Henkin that

live inserts in otherwise filmed documentaries are very difficult to do from a

technical standpoint, but Henkin said it has been done before and is "not technically impossible."

The CBS report will be presented in two parts, June 22 and June 29, and will

deal with the status of U.S. prisoners held by Hanoi and prospects for their

release, according to the network.

The Defense Secretary was first approached on the POW subject by CBS

several weeks ago and indicated that only a live interview would be acceptable

on that subject.

Even with no live interview, Laird probably will still be seen on the show, in

film clips of earlier press conference on congressional appearances, according

to Small.
128

he felt the issue that he was going to have to talk about was a very

sensitive matter, indicating at least inferentially that he would not

thrust himself into the editorial process for fear that his words and

perhaps questions and answers might be rearranged.

referred in his opening statement has written a fairly long article re- lating to a taped interview which he took part in which was subsequently chopped up to look like he had conducted a debate with somebody he had never seen, and he relates that he will never go back on

an interview which is taped.

Mr. MANELLI. Secretary Laird, according to the story, indicated that

In a similar vein Mr. Lawrence Laurent to whom the chairman 

Mr. MANELLI. Let me finish the question.

Dr. STANTON. But let me make it clear right here in the record that

Dr. STANTON. In the first instance 

the first instance refers to CBS, the second one does not.

Mr. MANELLI. The second one does not refer to anybody in particular.

Dr. STANTON. I say flatly for the record that it does not involve

CBS.

Mr. MANELLI. That is not really germane to my question. I think

what I am getting at, are you not afraid there may not be a chilling

effect on people whose views might be valuable to the public and might otherwise thrust themselves into the public forum that feel the cards

are stacked against them and they won't get involved in the taped in- terview process. If the public is deprived of their views and the tele- vision news media which is supposed to serve as a public forum loses them, that has a chilling effect, too.

Dr. STANTON. I don't agree.

Mr. MANELLI. You don't think there is any danger to individuals be- ginning to get concerned as to how they will be treated in this taped manipulation process?

Dr. STANTON. Let's break down the problem if I may. In the first place Secretary Laird has only said that he would not appear on one specific broadcast in the form in which we wanted to produce the broadcast. He has not said that he would not submit to interrogation

on "Face the Nation" or programs of that kind which are done live.

Mr. MANELLI. No, that is right.

Dr. STANTON. So that he is not being denied access to the American people and we are not denying the people the wisdom of Secretary Laird on television. He has news conferences frequently, we report those. So I think it is unfair to leave the impression that because he did not appear in the prisoner-of-war broadcast the way he wanted to

appear that the public was denied information from the Secretary of

Defense or that we were unfair to the Secretary.

Let me go one step further and say that I think this has a self-cor- recting effect. If everybody refused to give us interviews, this would begin to affect what the public saw on CBS News. We would lose our circulation, we would lose our affiliates, we would be out of business.

We don't operate on a unilateral basis in these matters.

Mr. MANELLI. These affiliates would go to a competing network,

would they?

Dr. STANTON. They could. They could. The first thing we have to have is to be heard and we can only be heard outside of five markets

by our affiliates.
129

Mr. MANELLI. The rationale that Secretary Laird gave, and I don't

want to linger on this issue but he said through Mr. Henkin who announced his decision for him—apparently Mr. Henkin said Secretary

Laird's refusal to do the taped interview was not a binding role on

all interviews as you have indicated. He goes on, that the POW issue

is a very sensitive matter, which leaves the impression that because

of this sensitivity that is important he does not want to trust himself

to the editorial processes of CBS News in this case.

Dr. STANTON. I think there are cases from time to time of public

leaders, leaders in other fields who have denied interviews to specific

journalists and to specific organizations, but I—

Mr. MANELLI. He is not denying an interview, he is not consenting

to a taped interview. I think that was the whole crux of the

controversy.

Dr. STANTON. This was not a live broadcast is the answer to that.

Mr. MANELLI. He thought that he could be inserted live, I guess.

Let me leave that particular question. You stated earlier in response

to a question from Congressman Shoup, I believe, that certainly substitution of no for a yes would be unfair. I wonder if it would surprise you to know that Mr. Henkin who was involved in the Pentagon

documentary feels that is exactly what happened with him. He has

written a letter which is already in the record of these proceedings

dated May 19 to the chairman which contains the following language:

"At no time did I accuse or intend to accuse CBS of conducting a

staged interview."

He is referring to one exchange of Roger Mudd.

"What appeared on the program as such was the product of the

editing and distortion of the original material. That fact is I stated

precisely the opposite in my interview and said, `No I am not accusing

you of staging it, I made no accusation at all.'

"If I was deeply concerned by this action in turning a `no' answer

into a suggested 'yes' answer on the show, thereby misrepresenting

my views to the public, I was no less concerned when the producer,

Mr. Davis, in a later broadcast flatly charged me with having stated

that I hail accused CBS of staging the interview."

I just call your attention to that. There is room for argument here

when you say, "We don't change 'yes' to 'n&." Sometimes it is the individual who is at the receiving end of this who has a different view,

as Mr. Henkin obviously does here.

I wonder, what is your reaction to that? Does a person being interviewed have any rights to have his speech—

Dr. STANTON. You are taking me right down the road, sir, into the

details of "The Selling of the Pentagon," a thing that I asked not to

be cross-examined about because I declined to get into the particulars

of that broadcast.

Mr. MANELLI. Could you state that rationale again just so it is on the

record as to why you are taking this position that you won't discuss

this particular program?

Dr. STANTON. Because I think it has a chilling effect.

Mr. MANELLI. The discussion has a chilling effect, the discussion

itself has a chilling effect? Does it not add more information to the

body of public knowledge on this program?

Dr. STANTON. I won't deny that, I am talking about free journalism

in this country.
130

Mr. MANELLI. It is a rather simple expedient as editorial practice

and then having defined it is such now you refuse to discuss it. Does

that not lead to a kind of curtailing dialog as you were?

Dr. STANTON. It does with the Government, with an official body, I

agree with you.

Mr. MANELLI. But you are not suggesting, are you, that it would

be any different if a private individual or group were to make the same

inquiry? I thought we covered that earlier.

Dr. STANTON. With this investigation going on 

Mr. MANELLI. Without this investigation. I made that clear in my

question, or I should have.

Dr. STANTON. If it becomes clear that official bodies may not penetrate the editing process or the news judgments, if that becomes established, if we have the same rights in that area that the print media

have, then I would be perfectly willing to do it.

Mr. MANELLI. Why is it that it is all right for the people individually, and recognizing as I think we must that individual people really

haven't the time or the funds and certainly they don't have the compulsory legal process that the Congress has, it is all right for them to make inquiries and you will respond to those but if the people choose

to act through their elected representatives, which is a much more effective 

Dr. STANTON. 

and efficient wayIt is a much more chilling way also.

Mr. MANELLI. Why is it wrong for the people to act through the

process of Government which has been set up just for that purpose?

Dr. STANTON. Sir, that is what the First Amendment is all about, it is

to protect the journalists from that kind of surveillance.

Mr. Manelli. What kind of surveillance again? Let's make that clear.

Dr. STANTON. Surveillance in this particular instance that would lead to judgments regarding the editing process and the fairness thereof.

Mr. MANELLI. Well, in your opening statement on page 4 you said,

"Our objection does not depend upon establishing that the Government lacks power, under any and all circumstances to subpena a

journalist or his unpublished materials." So you are taking a position there.

Dr. STANTON. Yes, because this seems to me to be a very pure case where there is nothing to be balanced against the editing process.

Mr. MANELLI. The Chairman made reference to laws on the books which addressed deception. You have to disclose if a program is spon- sored. We have a regulation that says you cannot put on a mechanically reproduced program such that anybody will be misinformed that they

are seeing something live when it is taped. We have section 509 which

says you cannot put on a fraudulent quiz show. We have sections 5 and 12 of the Federal Trade Commission Act which apply to broadcasting

as well as other media which say you cannot disseminate false and mis- leading advertisements.

The inquiry that is presently in progress here is to gain information 

i to evaluate the adequacy of present laws. Now why s that not an important Government function?

Dr. STANTON. We have never invoked the First Amendment with ad- vertising or mechanical reproduction.
131

Mr. MANELLI. If you think it is too legal, certainly indicate that

It is Dr. Stanton's views that are wanted here.

Dr. STANTON. May I consult with my counsel, Mr. Chairman.

(Witness consulting with counsel.)

Dr. STANTON. Mr. Chairman, I believe it would advance the cause if

we did allow counsel to speak here. I think that he can talk to your

counsel better than I can talk to him. I am not, as I indicated, a lawyer.

Mr. MANELLI. I respectfully don't accept that request. This is something contained in Dr. Stanton's statement I want to question him

about. I am sure that his opinion would be quite legally correct. I am

after Dr. Stanton's opinion.

The CHAIRMAN. I would uphold that. I think you have a right to

advise your client but you are not the witness here, Mr. Cutler, you

are the lawyer and you can advise your client as to what he should

say and do, but I don't think that we are questioning you because you

are not CBS.

Mr. CUTLER. Mr. Chairman, I will respectfully bow to that. Let me

state it in the form of a legal objection that Mr. Manelli's questions are

that because this committee has in the past enacted legislation on

subjects A, B and C, don't we have the right to enact legislation on

subject D? That is a legal question.

The CHAIRMAN. Can't you advise your client?

Mr. CUTLER. I have advised.

The CHAIRMAN. Do you have the answer, Dr. Stanton?

Mr. MANELLI. That was not my question.

Dr. Stanton, let's say it over again. On page 4 of the statement you

delivered to the subcommittee you said, "Our objection does not depend

upon establishing that the Government lacks power, under any and all

circumstances, to subpena a journalist or his unpublished materials."

Now that must mean that there are circumstances when you can

legally subpena. You go on further and you say there may be a need

for information for some important Government purpose. Now it

seems to me what you are saying is that the right to withhold information from Government inquiry of a journalist's unpublished materials

does not hold true in all circumstances. You say that they may be required to produce, to be given up for some important Government purpose. Now you must, therefore, be taking the position that the inquiry

in Congress here is not for an important governmental purpose. Now is

that an unfair statement?

Dr. STANTON. It is not an unfair statement.

Mr. MANELLI. You do not feel there is an important governmental

purpose involved in getting relevant information?

You don't think there is an important governmental purpose involved in getting relevant information necessary or desirable to aid in

the consideration of legislation? Is that your position, that that is not

important?

Dr. STANTON. Speaking as a layman I think you are getting into a

constitutional area.

Mr. MANELLI. I am just getting into your statement. Excuse me. Go

ahead and give your answer.

Dr. STANTON. I would say there is a bip• distinction between a regulation that talks about mechanical reproduction and one that has the
132

journalist submit his outtakes or his notes or his editing for a Government agency or an official party.

Mr. MANELLI. The regulation would not be that. The inquiry would

examine such material as outtakes. The regulation might very well be

something similar to the regulations that you were discussing in 1959.

That would be a separate question. Right now we are talking about the

inquiry. You are saying this inquiry should not commence. You are

saying that these materials should not be examined. We are not talking

about a law that says you have to produce these materials on a routine

basis.

Dr. STANTON. I don't know how you would implement the regulation that you are talking about. We have not got it before us so maybe

we should not be talking about it, but if we had it before us then we

could address ourselves to it.

Mr. MANELLI. You are saying the inquiry as to how we should get a

regulation or law should not commence because 

Dr. STANTON. Because in our opinion such a law would be unconstitutional.

Mr. MANELLI. No matter how it was drafted? What if it said, "If

you splice out of sequence" 

Mr. CUTLER. Mr. Chairman, is this not a legal question?

The CHAIRMAN. You can advise your client at any time.

Mr. CUTLER. All right, sir.

The CHAIRMAN. I have not stopped you from advising your client.

Mr. MANELLI. Dr. Stanton, without any prompting from Mr. Cutler, said he did not think it would be constitutional. He said there was

no way to address ourselves to any regulations having to do with—I

have frankly forgotten what you said we could not do, but you did

say that you did not think it would be constitutional.

Now I would like to ask what would be wrong with a simple requirement that if you splice out of sequence a white dot would appear on

the lower right hand corner of the screen and the FCC could put out a

public notice when you see that you know the editors are splicing out

of sequence. You say that would be unconstitutional?

Dr. STANTON. I have some difficulty with that example.

Mr. MANELLI. If you cannot answer, of course you could indicate

that. Do you feel that you have an answer to that?

Dr. STANTON. I have a practical answer to it because I think that

kind of an operation would be absolutely silly or meaningless.

Mr. MANELLI. You may feel that way but as far as constitutionality,

which was your earlier objection, you said it would not be constitutional but you feel it would be meaningless. Do you think it would be

constitutional? I am trying to get at the basis of the withholding of

the information that is requested here. From your earlier statement I

thought perhaps you were under the impression that there was some

suggestion that there would be a law passed that would require such

information to be routinely given up to anyone asking for it. I don't

think that is quite involved.

Dr. STANTON. Does it make a difference, Mr. Manelli, whether the

regulation says we have to give it up or whether we have to have a

meaningless identification on the air? If it is meaningless, does it not

become by definition unconstitutional?

•
133

Mr. MANELLI. I don't want to get into that; really it is not germane

to my question as to whether you consider it would be meaningless.

Of course I just made this example up so it might well be meaningless and perhaps something less meaningless could be devised. Your

opinion was this disclosure could not be in any way constitutional. I

think you are prejudging what this inquiry might be. Are you saving

you can withhold information to the Congress because you don't think

constitutional legislation might be passed or it might be meaningless

if it was passed?

Dr. STANTON. On page 4 of the printed opinion of counsel, Mr.

Manelli, of June 15 under section II the first paragraph begins,

Whether or not the Subcommittee can devise constitutional legislation regulating the manner in which broadcasters must edit the news, the Subcommittee

cannot, in our opinion, enforce the present subpoena in aid of that objective.

Mr. MANELLI. All right. That is of course the opinion of your

counsel; you endorse that, you give that as you answer?

Dr. STANTON. I do.

Mr. MANELLI. I am afraid that we still have not made this clear,

at least I don't think I have a clear understanding of what you meant

on page 4 of your statement which you say,

Our objection does not depend upon establishing that the government lacks

power, under any and all circumstances, to subpoena a journalist or his unpublished materials.

What you are saying there is that there must be circumstances

where there would be an overriding public concern. Then when I

asked you why is it not an overriding public concern to pass legislation, then you got into whether or not such legislation would be meaningless in your view or would be silly or whatever the term was. Is

that the basis on which you determined that there is not an important

governmental purpose involved here?

Dr. STANTON. I thought that I had answered that question once

before, Mr. Manelli, but let me try it this way. There may be circumstances unlike the circumstances in this particular inquiry where the

Government does not lack the power because of some general law that

has been involved but lacking anything like that we don't believe that

this would be constitutional because you are just getting into the editing process.

Mr. MANELLI. Well, it is to decide whether new laws are needed.

Obviously if you insist that before an inquiry can be made into the

desirability of a new law that before you will respond to an inquiry

of that kind there must be a showing that the existing law has been

violated, you are eliminating the congressional inquiry power.

Dr. STANTON. Mr. Manelli, you don't need me in front of the committee in order to propose legislation.

Mr. MANELLI. But the legislative process does require information

and this has been held—I don't want to start talking like a lawyer.

Mr. CUTLER. I am sure Dr. Stanton would have made a better lawyer than either Mr. Manelli or me if he had had the training but we

really could carry on this debate much more rapidly if it could be

conducted between Mr. Manelli and me.

Mr. MANELLI. It is not a debate, we are trying to get Dr. Stanton's

views on this record.
134

Mr. CUTLER. You are asking him question of constitutional law,

fundamental law.

Mr. MANELLI. I don't preclude him from answering questions like

that.

The CHAIRMAN. You are here to advise your client and you can

advise him at any time. Our subpena did not mention you at all, Mr.

Cutler. We have always said that any witness has a right of counsel

but that does not mean that he is going to answer and talk and give

his opinions to this committee. We are asking Dr. Stanton and you

can advise him as his lawyer. I think that is proper and we want

you to do that.

Mr. MANELLI. Can I just conclude here, Mr. Chairman. Two more

questions.

Dr. STANTON. May I make one comment here, Mr. Chairman?

The CHAIRMAN. Yes • go ahead.

Dr. STANTON. I would like to quote one more point from the general

opinion that we have of April 27 on page 12. It is from the Caldwell

case and the quote is: "Where, as here, the alleged abridgement of

First Amendment interests occurs as a byproduct of otherwise permissible governmental action not directed at the regulation of speech or

press, 'resolution of the issues always involves a balancing by the courts

of the competing private and public interests at stake in the particular

circumstances shown.'"

Here in my opinion it is directed at the regulation of speech or press.

Mr. MANELLI. Dr. Stanton, isn't it true that "The Selling of the

Pentagon" documentary violated a number of the provisions you

set forth in 1959? I have read some of them and I will read the last

one which I think is more applicable than the ones I have read. This

is the CBS program rules quoted in 1959, and quoted in the reference

as CBS policy memo circulated by CBS vice president Aubrey, 1959.

This refers to "programs wholly or in part made up of interviews.

. . . To the extent that any interview which purports to be spontaneous

is not, that fact must be adequately disclosed.

I will skip down a few lines. ". . . if the area or nature of the interview is delimited or delineated; or if the interview, having been recorded, is not broadcast in its entirety but selections are made and the

interview edited—if any of those practices, or other like practices are

followed, they must be announced.

Now this is a CBS statement of 1959 and from your testimony

today you are still experimenting with ways to announce it. Why

not simply announce it in the Henkin interview that it is edited? Is

this policy not in effect any more?

Those are three questions.

Dr. STANTON. The policy is in effect but I remember, I want you

to ask what he said, I was not going to get into the individual news

judgments in "The Selling of the Pentagon."

Mr. MANELLI. Why is it that you answer the question on a general

basis?

Dr. STANTON. Only because I am trying to be cooperative, Mr.

Manelli.

Mr. MANELLI. Yes, indeed. Why is it that does not produce a chilling effect?
135

Dr. STANTON. It begins to get close to it.

Mr. MANELLI. Is it not proper to inquire whether or not a question

and an answer on .a nationally televised news documentary was not

the same answer given to the same question or the question and answer were mismatched, is that wrong to inquire into that? Is that getting into the chilling process of editorial judgment?

Dr. STANTON. In my opinion if you take that all the way down the

line, the people's right to know or the free press as far as broadcasting

is concerned is going to be a changed instrument.

Mr. MANELLI. You are carrying information to the people over the

television network, and I don't mean it in the organizational sense but

the communications network in which the public investment far overshadows your own in dollars and cents, and you are carrying information to them which is purported to be factual. Is it not proper to inquire when anything has been 

Dr. STANTON. Mr. Manelli, we are right back into what is truth.

Dr. 

Mr. MANELLI. Not really because I realizeSTANTON. You say not really but I am on the other side of the

desk and I have to live with this situation, and I can tell you that if this

is the direction in which we go, free speech in this country is going to

be set back.

Mr. MANELLI. Merely by an inquiry as to whether a question and an

answer has not been edited out of sequence?

Dr. STANTON. Yes.

Mr. MANELLI. Really? Just by that?

Dr. STANTON. By Government agency, I submit, and refer you to

what I have said right along in this discussion.

Mr. MANELLI. This is my last question, Mr. Chairman, but the

people's right to know is a phrase that keeps going through judicial

decisions and speeches and what have you. I am sure you would not

dispute the people's right to know, in fact you are upholding it, but

it seems that you feel that there is something different between the

people's right to know and that right when it becomes asserted by their

elected representatives. The Chairman quoted Mr. Alexander

Hamilton that the people govern, they act through their individual

representatives.

It seems to me what you are doing, you are either taking one of two

lines. You are not a trustee that is answerable to the public, but if you

disagree you must agree with the second proposition that the Congress

is not the valid representative of the people. It seems to me that you

must be taking one of those two positions.

Dr. STANTON. I think you have just got to weigh the two approaches.

Mr. MANELLI. Well, I am not talking about two approaches.

Dr. STANTON. Yes, we are.

Mr. MANELLI. I am talking about two essential elements to .your

argument. I think you must of necessity be saying here that you are

not a trustee and therefore you are not answerable for your actions

or if you are not saying that, you must say that the Congress is not

the valid representative of the people because if you are a trustee

administering a public trust then you must be answerable to the people and if Congress is a legitimate representative of the people you

must be answerable to the proper inquiries that are made of you by

the Congress.
136

Dr. STANTON. I say to you that if the committee or if any official

body indulges in the investigations such as we are doing here about

the editing process of the journalist that this is going to have a chilling

effect. Now you may say that there is an overriding reason why you

should do it, and I think we have to weigh one against the other but

I don't think you can have free speech if you are going to have a group

of men, no matter how well-intentioned, trying to decide what is the

truth or what is objective. I think the occasional infraction or the

occasional mistake is not worth the price that you would pay by superimposing upon the free press in this country; and here I am not talking now about print, I am just talking about electronic press.

Mr. MANELLI. You are getting across some of the idea that in all

cases the truth is something that can't be defined. There are gray areas

but when we get into 

Dr. STANTON. I would rather 

Mr. MANELLI. We are out of the gray area there, aren't we? There

is no question that that answer did not go with that question. That is

not something about which reasonable minds could disagree.

Dr. STANTON. Then why am I here?

Mr. MANELLI. I am not going to presume to go back and reread the

Chairman's statement, but there is more to it than just that on the

program. There are more issues than just this simple question of

whether a particular question and answer were mismatched.

This will be my final question and I would like to try to get your

statement on the record here.

The law seems to be very clear on two points. The broadcaster is a

trustee answerable to the discharge of a public trust 

Dr. STANTON. And as I said to you before 

Mr. MANELLI (continuing) . And second, the Congress is the representative of the people. Now if you agree to those two propositions,

it seems to me that you must of necessity be disagreeing with one or

the other of those propositions.

Dr. STANTON. But there is a third proposition involved because as a

trustee I also have the obligation to uphold the First Amendment.

Mr. MANELLI. And the First Amendment in your view precludes any

inquiry into broadcast production or editing techniques?

Dr. STANTON. I said in my statement at the top of page 4, "The

First Amendment states that 'Congress shall make no law.. . abridging

the freedom of ... the press.'"

Mr. MANELLI. That is all I have, Mr. Chairman.

The CHAIRMAN. Mr. Shoup.

Mr. SHOUP. One question, Doctor. For one who came and said he was

going to help you have me confused, sir. I questioned you on the

memorandum from CBS of 12 years ago, we discussed that. You recall

when we had our discussion, you know what I am speaking of, the

memorandum?

Dr. STANTON. There were a number of memorandums.

Mr. SHOUP. This is the one put out by James T. Aubrey, Jr., and it

was reprinted in Broadcasting magazine of November 23, 1959. You

and I were discussing that a little earlier and I think Mr. Springer

was also referring to it, he made several comments relative to it, basically what it was. My question to you was, what were you doing in
137

the past 12 years to take care of the problem of adding the three little

dots to television that the newspaper does have? Do you recall now

what I am referring to?

Dr. STANTON. I do.

Mr. SHOUP. Well, Doctor, when it refers to the fact that the public

does have a right to know, and this I agree with you, but it would seem

here in a public hearing in which we are saying, as the public, that we

would like to have you bring the outtakes and present them here in a

public hearing so that you and other members of the news media can

then report them to the public because I say the public has a right to

know. It would seem to me that after 12 years your only answer to

attempting to find out how to tell the public is that the public does not

have the right to know.

Dr. STANTON. I think that is unfair, Mr. Shoup.

Mr. SHOUP. You refuse to answer?

Dr. STANTON. I think that is grossly unfair, I have said it before.

The implication in your question is that we have not been doing anything in the past 12 years.

Mr. Swim,. My question to you, sir, is you have refused to submit

to public scrutiny the outtakes for the public to know whether you

have deceived them or not. You have refused to do that.

Dr. STANTON. And I have told you why.

Mr. SHOUP. Yes, sir. Then you are saying in effect the public does

not have a right to know what is contained in there?

Dr. STANTON. Sir, I have said repeatedly 

Mr. Snoup. I realize your justifications. This is what you are saying?

Dr. STANTON. I am saying that an official Government body does not

have the right to get into the outtakes or the reporters' notebooks.

Mr. SHoup. And I believe it was pointed out by Mr. Manelli that we

are the public, we represent the public, and we are asking you to inform us as members of the public and as representatives of the public.

Do we have a right to know?

Dr. STANTON. We are right back to the First Amendment, Mr. Shoup,

and I see it a different way than you see it and I am afraid that no

conversation is going to bring us together on this.

Mr. SHOUP. I certainly agree on that. I would merely like to have

you answer yes or no. Does the public have a right to know what is

contained in those outtakes?

Dr. STANTON. Not under the format that you are trying to get them.

Mr. SHOUP. Then I would assume, as was requested by the chairman,

that your answer is "No, but."

Dr. STANTON. I will let the record stand the way it is.

Mr. SHOUP. Thank you, sir.

I have no further questions.

The CHAIRMAN. Mr. Springer.

Mr. SPRINGER. I think I can bring Mr. Manelli and Mr. Shoup to

a point and I think you have got to get at the gist of this. Let's take

a little more extraordinary example. When we asked you to deliver

"Project Nassau" to us, you did. Now in order that the press may know

and whoever else is interested, I would say that what you delivered to

us was in boxes about this square and this high, and if you took them

they would have gone all the way around that wall and all the way
138

around this wall up to here. Now those were all of the films. Now that

is what you delivered.

Dr. STANTON. We never got those back either, as I recall.

Mr. SPRINGER. All right. We will give them back to you if you want

them back.

Dr. STANTON. I think maybe we got some of them back, Mr. Springer.

Mr. SPRINGER. All right. You delivered to us I don't know how many

thousands or millions of feet of tape. Suppose that you had done a 2-

hour documentary on "Project Nassau," and there had been an invasion in Haiti. We would have had political repercussions as a result,

it would have been probably as serious as the one they are having

over in Vietnam.

Now my question to you is, would you say to this committee that the

only thing we could have out of that was what you showed on the film?

Dr. STANTON. This is a hypothetical situation that is not before

us this morning or this afternoon, Mr. Springer, and I really think

that we ought to talk about the specific situation rather than the hypothetical one. The record does show we supplied that information.

Mr. SPRINGER. Dr. Stanton, I said if you went ahead and showed

your 1-hour or 2-hour documentary into which you put roughly

$100,000 

Dr. STANTON. Mr. Springer, we didn't do that.

Mr. SPRINGER. The point of it is, that was an extreme example, but

it is bringing the point to a head of what we are talking about here in

"The Selling of the Pentagon" in which you are arguing that they

have no right to the outtakes. Do you believe that the American public would stand by while you had millions of feet of the background

of this whole project which is available to be shown to the public and

ought to be known to the public in the public interest and you would

refuse to give those to this committee and give us only the program

you showed on CBS?

Dr. STANTON-. But if this is a hypothetical situation 

Mr. SPRINGER. On the situation that you are doing it by freedom of

the press. You are saying you have a right to keep those notes and

those outtakes even though there is a whole lot in the background of

this which might affect the international connection of this country

with people in the Caribbean.

Dr. STANTON. I think that in one place in my statement here I said

that our objection does not depend upon establishing that the Government lacks power under any and all circumstances to subpena a

journalist or his unpublished material. Maybe in the case that you are

drawing here, this hypothetical situation, we would go along with the

subpena but that is not the present situation, Mr. Springer.

Mr. SPRINGER. But the question is, do we have that power? This is

the question I am asking.

Dr. STANTON. Yes under certain circumstances you do.

Mr. SPRINGER. You are saying under certain circumstances we could

subpena?

Dr. STANTON. Right.

Mr. SPRINGER. What you are saying is in this case we cannot

subpena?

Dr. STANTON. That is my opinion.
139

Mr. SPRINGER. All right. At least we have reached this point. I

wanted to get one here that was more dramatic than "The Selling of

the Pentagon." Now we went back a little philosophically a minute

ago. I am trying to get something constructive out of this with you

and I am going to be with you a long time yet so I want to see if I can

pin down to something that can become constructive. You say "The

Selling of the Pentagon" is a documentary. That is your quote, isn't it?

Dr. STANTON. Yes.

Mr. SPRINGER. All rip:ht. I have to stay within definitions. I don't

think we can wander all over the scene. Webster's Seventh Collegiate

Dictionary defines documentary as follows: "adj. (1) contained or

certified in writing; (2) of, relating to, or employing documentation

in literature or art; broadly :" and in capitals, "FACTUAL, OBJECTIVE."

Now I swing back to my old 1956 dictionary and I want to read to

you, "objective: exhibiting or characterized by emphasis upon or the

tendency to view events, phenomena, ideas, etc. as external and apart

from self-consciousness; not subjective; hence, detached; impersonal;

unprejudiced."

That is a pretty broad responsibility, Dr. Stanton, isn't it? Would

you feel in your own mind that "The Selling of the Pentagon" fell

within those two definitions, objective and factual?

Dr. STANTON. Mr. Springer, I have said earlier and I repeat that I

thought it was a fair broadcast and I stand by that.

Mr. SPRINGER. All right. That is all.

I have just one further thing, Mr. Chairman. I would like to insert

in the record at this point from Broadcasting, November 23, 1959,

"Programing," pages 98, 99, 100 in the record at this point.

The CHAIRMAN. Without objection, so ordered.

(The material follows) :

[From Broadcasting, Nov. 23, 1959]

PROGRAMING: PROGRAM GROUND RULES AT CBS-TV

While it is determined to assert mastery over its programming, CBS-TV has

no plans for upheaval in fundamental broadcasting practices as they now exist.

It is not thinking of instituting a "magazine concept" in the sense that would

make CBS-TV the owner of all of its programs and allow advertisers no say-so

about where their commercials are placed.

This is the position presented to BROADCASTING last week by James T. Aubrey

Jr., executive vice president who is acting operating head of the CBS-TV network during the illness of President Louis G. Cowan.

Mr. Aubrey made the clarification after reports that CBS-TV was considering

a "magazine concept" got into print in New York along with a memo outlining

new ground rules which he had sent to the network staff.

AREAS STILL UNDER STUDY

The memo set up rules dealing with four specific programming areas and indicated that others yet to be covered include standards for commercials, program

balance and thorough investigation of payola and plugs (text of Mr. Aubrey's

memo below).

Mr. Aubrey said CBS-TV plans to move more informational programming

of the so-called "Sunday Afternoon Intellectual Ghetto" type into choice evening

time next year, following up steps already taken in this report.

He also said there had been suggestions that CBS-TV solicit suggestions from

outside the television field for ways in which CBS-TV might implement its intention to be in command of what is seen on the network; but, he said, the feeling

62-142 0-71 10
140

within CBS—TV is that this is the network's own problems which it should solve

on its own.

His memo to the CBS-TV organization, approved by "all officers" of the networks, reportedly including President Cowan, did not use the phrase "magazine

concept," and "program balance" was mentioned only as one of the "larger problems" yet to be solved. The implication was that specific ways of achieving

"program balance" were along with other problems, still being considered.

New Office.—In addition to codifying new rules drawn thus far, Mr. Aubrey's

memo disclosed that "a new office will be created" by CBS-TV "to implement

this memorandum and other related memoranda, and to formulate and recommend additional rules." It also said the rules it enunciated will apply to all

programs produced after Dec. 15, and earlier where practicable.

The rules were designed to "indicate clearly, where doubt may reasonably

exist, the degree and proportion of fact and fiction, of nature and artifice of

preparation and spontaneity, within each program." The areas dealt with (1)

games and contests, (2) interviews and discussions, (3) announcement of prerecording and (4) artificial laughter and applause."

Taped or filmed shows—or such inserts in live shows—must be announced

as such; rebroadcasts of a live show to serve one portion of the network must

be identified as recorded, and the phrase "live on tape" is forbidden. In general,

game or contest shows must disclose any element of rehearsal or other preparation that affects the playing or outcome of the game, and those using contestants chosen from the studio audience must explain the basis for selection. Interviews and discussion programs must say so if questions were supplied in advance,

if the scope of the discussion was limited or if the program was materially edited.

Use of canned applause must be limited by "good taste and moderation," and when

used at all, this fact must be "clearly disclosed."

How CBS-TV SPELLS OUT ITS PROGRAMING RULES

Here in slightly condensed text, is the memo circulated last week by James

T. Aubrey, Jr., CBS-TV network executive vice president, delineating new rules

or programing and outlining procedures for further evaluations and changes:

We are now in the process of that reexamination (announced earlier by CBS

President Frank Stanton) of all policies and practices affecting television and

its future, and this 'fresh hard look' covers a very wide area. It must include

standards to be set for commercials, program balance, and thorough investigation of payola and plugs.

In the meantime our study has disclosed practices which, though relatively

minor compared to the deceptions in the quiz programs, do prevent us from saying to the public that all of our programs are "exactly what they purport to be."

So that we can have these details behind us as we move toward the larger problems, we are now stating rules to be observed henceforth in the areas discussed

in this memorandum.

The healthy development of television requires us to go far beyond the prohibition against deliberate deceit. It places upon us the duty to indicate clearly,

wherever doubt' may reasonably exist, the degree and proportion of fact and

fiction, or nature and artifice of preparation and spontaneity, within each

program.

The artifices used in programs which are clearly fiction need no marking any

more than the whole drama or comedy in which they are used need be marked

as fiction. The audience accepts both the fiction and the artifices as precisely

that. Theatrical conventions are so solidly planted in the minds of the viewers

that no problem of deceit or misconception is involved. The test in each case

must be whether any substantial number of the viewing audience is likely in

the circumstances to be deceived or misled concerning the true nature of the

program fare being offered.

The issuance of memoranda and the observance of the rules embodied in them

cannot be considered as the full measure of the responsibility and obligations of

those concerned with programming. The only true assurance is an affirmative

philosophy among all persons concerned that all programs, no matter what their

type, must have integrity and respect for the viewer.
141

GAMES AND CONTESTS

This section refers to quiz programs, programs on which a game 'is played .by

a panel of either professional performers or members of the public, contests or

games which sometime are conducted as part of general audience participation

shows, and the like. With regard to all such games and contests:

Games or contests, as presently conceived, in which high money prizes, lavish

merchandise gifts, or any other high stakes are offered to contestants, will not

be permitted.

All other games or contests, whether constituting the major part of a program

or just a feature thereof, whether played by one or more contestants or a panel,

are to be conducted in all respects in precisely the manner in which they purport

to be conducted.

In this connection, any element of preparation or rehearsal of the contestants

of penalists which affects the playing or outcome of the game, or the stated or

implied spontaneity with which the game is played, must be disclosed; obviously

in any games which take the form of a question or puzzle involving the preparation of a contestant to puzzle or mystify the panel, the fact that such contestant

is rehearsed need not be announced.

Rehearsals of contestants or panelists as to incidental elements of the game,

such as physical position, movement on camera, and purely incidental conversation, need not be announced if the playing or outcome of the game is not

thereby affected.

Games or contests which use contestants selected from the studio audience must

disclose the basis for selection of such participants.

Aside from incidental conversation, previously referred to, programs which

contain games or contests frequently involve interviews or discussions with contestants or panelists presented as an important feature of such programs. Such

areas of programming •are governed by the rules relating to interviews and

discussions.

INTERVIEWS AND DISCUSSIONS

This section refers to programs wholly or in part made up of interviews, discussions, forums, debates, and the like, and the term interviews will be used to

cover all such kind of program content.

To the extent that any interview which purports to be spontaneous is not, that

fact must be adequately disclosed. Regarding such interviews, any editing, preparation or rehearsal (other than rehearsal of physical position and movement

on camera) must be indicated.

Thus, if questions are supplied in advance to the person being interviewed:

or if both the questions and answers are prepared or outlined in advance; or if

the area or nature of the interview is delimited or delineated; or if the interview, having been recorded, is not broadcast in its entirety but selections are

made and the interview edited—if any of those practices, or other like practices

are followed, they must be announced.

Where interviews are broadcast in connection with public or sporting events,

if they have been pre-recorded and are not contemporary with the events which

are the main subject of the broadcast, that must be stated.

If any interview has been conducted and pre-recorded so far in advance of its

broadcast that the difference in time is significant, announcement must be made

of this time lag.

ANNOUNCEMENTS OF PRERECORDING

When a performance, or any part of it is in any way pre-recorded—whether on

film or tape—that fact must be disclosed by an announcement at the beginning

or end of the program.

When there is lip-sync to a recording or sound track made for some purpose

other than the particular program on which the performance occurs, that fact

must be specifically disclosed.

A rebroadcast for one portion of the network of an earlier live broadcast

must be identified as recorded.

The use of the phrase "live on tape" must not be used.

ARTIFICIAL LAUGHTER AND APPLAUSE

Whenever artificial laughter or applause is employed in any degree, that fact

must be clearly disclosed. In addition, the use of artificial laughter and applause
142

must be subject to, and limited by, the basic consideration of good taste and

moderation.

ADDITIONAL RULES

Additional rules to implement the policy that programs appearing on CTN

shall be exactly what they purport to be will be issued from time to time as

experience and continued study indicate.

IMPLEMENTATION

While the observance of these rules shall be the responsibility of all CTN

personnel concerned, a new office will be created within CTN to implement this

memorandum, and other related memoranda, and to formulate and recommend

additional rules.

EFFECTIVE DATE

These rules shall be effective at the earliest practicable date but in any event

shall apply to all programs produced after December 15, 1959.

This memorandum has been considered and approved by all CTN officers.

Mr. SPRINGER. At the same time, Mr. Chairman, I would like to insert in the record at this point from the Washington Post, TV Channels, June 13, 1971, an article entitled "The Interview: A Precarious

Ego Trip" by Lawrence Laurent.

The CHAIRMAN. That shall be inserted in the record, too.

(The article follows:)

[From the Washington Post, June 13, 1971]

THE INTERVIEW: A PRECARIOUS EGO TRIP

(By Lawrence Laurent)

I should have known better. After all, I had been covering television for more

than a decade. I knew all about it. Or so I liked to think. When someone asks

you to talk (and for a national audience, yet) on something you think you know

a great deal about, it is harder than hard to resist. It appeals to your ego (two

social psychologists had even given it a name—status conferral).

But here was this urgent, earnest voice coming over the telephone, identifying

itself as that of a producer of filmed television documentaries. The producer

wanted to interview me on the problems of television. Me, the television critic

of the Washington Post. If I said no, the producer would just get somebody else, and how could I let somebody else steal my thunder? I, of all people, should

have known about things like status conferral. I did. But even so, I said yes.

So, a few days later, a four-person crew—a man with lights, a man with a

16-millimeter film camera, a girl with sound recording equipment, and the

urgent, earnest producer—showed up at my office.

The producer sat behind the camera and asked questions. I answered, pausing

only when the cameraman said he would have to stop to put in a new roll of film. The questions and answers continued for about an hour and a half.

Six weeks later, the interview was used as part of an hour-long documentary.

It may have been a fine show, but one L. Laurent was anything but pleased. His 90 minutes of filming came out as a truncated two minutes and, by damn,

it just didn't seem like what I'd said. I was furious.

And I, remember, was the guy who was supposed to know about such things.

I got furious, for instance, when I saw, on my home television screen, the president of a non-commercial television network arguing with something I'd said (about squeamishness on the part of non-commercial TV documentaries).

How could he argue with me? I'd not seen the man in months. My statement

was made merely to that producer sitting in my office.

What happened to me is not unusual with television news filming, nor is it

very new. The current confrontation triggered by reaction to "The Selling of the

Pentagon" is amazing, in fact, in that so little of the kind of thing that happened

to me went on in that program. Anybody, or almost anybody, who has ever

been interviewed by television filmers or video tapers comes out of it with the

feeling they've been had.

The fact is, when an interviewee agrees to be taped or filmed, he puts himself

into the hands of the producer and has absolutely no control over what happens

to his words, thoughts and points of view.
143

The complaint isn't peculiar to television. People interviewed by newspaper

reporters often have the same beef: interviews are truncated, fragments of a

thought are often presented as a whole idea.

But in print, a writer can indicate by ellipsis punctuation (. . . ) that a fragment of a statement is being presented. Film offers no such visual cue for the

viewer.

Worse, from the position of the man who was interviewed on film, he appears

to be making statements—by himself—showing his face to the viewer in closeups that magnify statements. No matter how much of his thought has been deleted

he is seen and heard making statements. "You said it. I saw you."

The uninitiated interviewee hasn't learned that the documentary film producer usually works on what his profession calls "a 10-to-1 ratio." This means,

simply, that he will shoot 10 feet of film for each foot that appears in the program. Unhappiness, complaints and yelps of pain are over the content of the

discarded nine feet of film.

The man who volunteers for a filmed interview also runs the risk of engaging

in a debate with a person that he may never have seen, like in my case with the

network executive. This technique calls for separate interviews with two or more

persons. They may even be in different cities. In the final version, however, the

multiple interviews are inter-cut, going from one person to another, with the

effect that the persons appear to be engaged in an argument.

This is called "the talking heads" technique.

In one of last season's documentaries, "Banks and the Poor," the producer was

accused of having used this technique unfairly.

The "debaters" were a banker in New York and a Congressman in Washington.

The accusation was that the Congressman had the added advantage of knowing

what the banker had said. "He was able to use rebuttal technique that hadn't been

available for the banker.

Two similar context problems involve "establishing shots" and "cutaways."

The beginning student in a film production course learns the value of "establishing shots." When you are introducing an interview with someone, you generally don't just suddenly show him talking away. You establish him. For an

interview with me, for instance, the producer might first show the front of The

Washington Post building, then perhaps show the battery of television monitors

in my office, then go to me. But the producer can really turn tricks with me and

my context if, instead, the first shot is, say, of NBC's Washington offices, making

it look like I work there. Or if the producer shows establishing shots of the Pentagon before film of a Congressman—implying that he's in the Pentagon's pocket.

Additional, even if unintended, mischief can result from another common device in the filmed interview. This originates in the need for visual variety and

the common device of using "reverse angle" filming.

In a filmed interview, the camera usually will be behind the man asking the

questions, aimed at the person who is answering. After this filming is completed,

"reverse angles" are needed, meaning simply that the camera angle is reversed,

with the camera put behind the man answering and aimed at the questioner.

But public officials are busy and often won't sit around waiting for this second

step. The documentarian simply puts a friend or a crew member in the interviewee's chair and shoots past him at the questioner.

This time, unless great care is used, the questions may be reworded.

But when the questions and answers are put together in an editing room, a

man may wind up responding to a question that he has never heard.

To reiterate, these problems are not new. More than a year ago, for instance,

Richard Salant, president of CBS News, directed all his staffers to insure that in

filming "reverses," the questions must be exactly the same as the ones asked

during the interview. His memo was dated long before "The Selling of the

Pentagon."

Deeply imbedded in the problems peculiar to electronic communication is a

whole series of ethical correlations, tied to "seeing is believing" and "I heard it

with My own ears." Some experts perceive a generation gap merely in terms of

this.

For instance, many a father told a growing son in years past to "never believe

what you hear, and damned little of what you see." But most sons went on to

believe most of what they saw. But the new sons have come to their maturity in

an electronic age, an age filled with amplified rock 'n' roll, with musical synthesizers that can create or distort or mutilate. They know what film cutters can

do. They know about editors. Which brings rise to underground movies, to under-
144

ground newspapers—media that will not truncate, will not shorten, will not abbreviate thoughts or emotions.

But this is principally a phenomenon among the more aware of the

counterculture.

This nation's educational system, from kindergarten through graduate schools,

is still concerned mainly with acquiring skill with print; learning reasoning systems and acquiring defenses against print persuasion. The educational system has

not, as yet, stressed similar defenses against persuasion by moving pictures and

recorded sound. In effect, the controversy over "The Selling of the Pentagon"

may serve the useful purpose of altering many who might otherwise have ignored

the whole issue.

The electronic journalist claims the same right to edit and control his material

that the print journalist has had for centuries. But there is a difference in third

person reporting and in control of a person's own image and speech.

And, in defense of the film producer, human speech tends to be unstructured.

It is filled with fragments of thought and with sequential sentences that are

unrelated. The editor's job then is to give form and continuity to the material.

All of which is good and may even be helpful to the viewer. But it seldom satisfies the man whose filmed thoughts were re-arranged and condensed.

About a year after my first filmed interview experience, another producer called

and asked if he could bring a film crew to my office.

My ego could stand it this time. Status conferral or not. My answer was a polite,

but very firm: "No, thank you."

Mr. CUTLER. Mr. Chairman, might I ask that all of the other documents and letters referred to by the members of the committee and

Mr. Manelli be inserted in the record even if they have not been up

to now.

The CHAIRMAN. I think that is a reasonable request.

I just in finishing up would like to refer to one thing that was referred to during the discourse here to clear up some misrepresentations

and it has to do with this "Hunger in America." I am only going to

read very briefly from the Federal Communications Commission

report:

Our post broadcast investigation revealed that the infant who was filmed by

CBS in the nursery, and who was shown in the relevant segment of the "Hunger

in America" program, was a Claude Wayne Wright, Jr. Hospital records show that

the Wright infant was born prematurely on October 24, 1967, apparently as the

result of a fall taken by the mother on the previous day and weighed 2 pounds

12 ounces at birth. On October 26, 1967, the Wright infant was shown as weighing 2 pounds 5 ounces and as having suffered a cardiac and respiratory arrest

treated by Dr. Montemayer. The Wright infant died on October 29, 1967, the death

certificate shows the cause of death as prematurity. There is no evidence to suggest that either the mother or father was suffering from malnutrition.

I have here, tooDr. STANTON. Mr. Chairman, would you object to including the rest

of that material in the record?

The CHAIRMAN. No ; I would not object to it. I am only giving this

part that was brought up about the child.

Dr. STANTON. I understand and that is the part I am talking about.

This is one of the most bedeviling experiences that I think I have ever

had because there was no way to go back and check the information on

which we based our information. This was not a deliberate distortion

if that is the way it stands on the record because we were told that that

baby had died of malnutrition by a responsible person in the hospital.

I think the record ought to be clear on that particular point. I can't

firsthand tell you anything about it, all I am giving you here is the

information that I got from my own organization. I think there was

another paragraph if I am not mistaken.
145

The CHAIRMAN. There is more than one paragraph, there are several.

Dr. STANTON. Perhaps I am recalling a different document then

because I thought in the FCC document there were two or three paragraphs on that particular part of the broadcast.

The CHAIRMAN. Well, I believe this is true except that we have a

long colloquy and several pages of footnotes to this. If you just want

the original 

Dr. STANTON. Maybe the simpler thing to do would be 

Mr. CUTLER. May I see that?

The CHAIRMAN. Sure.

I will be glad to put the whole thing in. The reason I bring it up,

it was mentioned in the hearing here and it was kind of glossed over

and the people of America thought it was authentic.

Dr. STANTON. We thought it was authentic.

The CHAIRMAN. That is what I say. So I am not blaming you, Dr.

Stanton, I am blaming your organization.

Now I would like to give something else.

Dr. STANTON. Sir • I cannot let that stand that you blame the organization because When the organization in good faith takes a report

from an executive of a hospital I think that that is not being irresponsible journalism.

The CHAIRMAN. We have not investigated what the hospital said or

its report but there is the report as given by the hospital and they are

the hospital records taken from the hospital.

Now I would like one more thing.

Mr. CUTLER. Mr. Chairman, may I just read the paragraph Dr.

Stanton was referring to or the reference to it. The Commission itself

concluded with respect to this issue that the recollection of the CBS

witnesses was to the contrary and then the Commission said this:

Here there is a conflict with the memory of the CBS witnesses differing from

that of the hospital personnel. In these circumstances, it is, we believe, inappropriate to hold an evidentiary hearing and upon that basis that is, credibility or

demeanor judgments make findings as to the "truth" of the situation. The "truth"

would always remain a matter open to some question.

The CHAIRMAN. And that is far more stronger. This was one of your

employees who said they took the records and they said they did not.

Would you bring that back to me again?

Mr. CUTLER. I certainly will, sir.

The CHAIRMAN. There was a difference between what he thought the

record said and what the record actually showed. That to me is far

worse than the original. We will put it all in the record. It will all

be in the record and it will come out. (See appendix K, p. 367.)

I hold in my hand, and I have heard this before, a letter and I want

to read it. This is from CBS signed by E. K. Meade, Jr., vice president of CBS:

DEAR PROFESSOR HENTHORN : Some Of the demands contained in the subpena

served on CBS in connection with "The Selling of the Pentagon," I am sure you

agree, are deeply disturbing. If you share our view that they are entirely improper, we would urge you to telegraph the Special Subcommittee on Investigations, House Interstate and Foreign Commerce Committee, deploring the subpena

and asking its withdrawal.

Signed by E. K. Meade, Jr., and sent to Prof. Maxine Wells Henthorn, Department of Journalism, Angelo State University, San

Angelo, Tex.
146

I want to say as a result, I think, of this one letter we received

almost identical letters from nine press organizations, 10 journalism

schools or groups, 16 individuals associated with universities and 23

broadcast stations and associations, all of them ending up with this

last paragraph you have here. Now I wonder in the light of this and

all of them being the same, could I ask you how many of these you

sent to these organizations across America?

Dr. STANTON. Be glad to furnish the information, Mr. Chairman.

The CHAIRMAN. Could you say 1,000, 2,000?

Dr. STANTON. I could not say 1,000.

The CHAIRMAN. Then evidently there is more than a thousand of

these.

Dr. STANTON. No; I cannot give you the number because I am not

familiar with the letter.

The CHAIRMAN. Would you say that it was to every journalism school

and to these other groups?

Dr. STANTON. I cannot say that, sir. I will supply the information.

(See appendix H, p. 352.)

The CHAIRMAN. I would assume from the replies that came to us

that it must have gone to every journalism school because we only got

sparingly back and you would have thought your own organizations

of the broadcast stations would have replied to it, but each one of

them carried the same statement at the end.

Dr. STANTON. Mr. Chairman, is there anything wrong with trying

to get a point of view to the committee? We didn't tell these people

they had to write you, we simply said if.

The CHAIRMAN. It is a pretty strong thing when CBS, which controls the CBS outlets all over America, suggests to them that they wire

us and to every journalism school in the land. In fact, one of the heads

of the great universities as a result of this—I know it is a result

because it contains the exact language—wrote one of the members of

this committee and he told him to mind his own business and if he

needed somebody else to come out and run his school because he didn't

know anything about CBS, he didn't know anything about television

or communications, that he ought to be trying to run his own school,

and they told me that in a lot stronger language than I am telling

you. Now—Go ahead.

Dr. STANTON. Please, I didn't mean to interrupt. I will come back

to it.

The CHAIRMAN. Go ahead.

Dr. STANTON. I simply wanted to say that I think you exaggerate the influence of an organization such as ours if you think that an editor is going to do something for a competing medium that he does

not believe in.

The CHAIRMAN. This is the most powerful media we have in Amer- ica today, and you talk about chilling effects. This runs chills up and down the spine of every person in America. When there is untruth

put over these networks they can control this land, and you know they

can if we allow this to go on. Anything I say or you say can be dis- torted and made to be a fact and they can ruin every President, every Member of this Congress or anybody else if we allow this to go on. We

must have those outtakes.
147

Dr. STANTON. Are you suggesting that we have done that, sir?

The CHAIRMAN. I am saying what could be. This is the most powerful media we have in America today.

Dr. STANTON. And we try to operate it responsibly.

The CHAIRMAN. You try to but who is asking you and who gave you

the different things? All we are trying to do, sir, and you are a friend

of mine and I know you are and you have been for 20 years and I respect your friendship and I respect you as a man. I don't blame you I

blame your organization, and I could name you some of them if I

want to but I don't want to do it here in public as the ones who have

beenDr. STANTON. Please, Mr. Staggers, don't separate me from the organization because the men in the organization are the men that I have

put in that organization.

The CHAIRMAN. I know that and I would say this to you, knowing

how big an organization it is that you know very little of it, that you

would have to be spending all of your time in it 24 hours a day and

yet you could not keep up with a fourth or a tenth of a fiftieth of what

is going on.

Dr. STANTON. We try to get the best professionals we can get. We

give them the policies under which to operate. We keep a review organization that changes with the time, depending upon the situation,

and we delegate that.

The CHAIRMAN. But Jesus picked 12 disciples and one sold him for

30 pieces of silver, another denied him on the night that he was crucified, and another doubted him when he came back. Now that is the kind

of men we have today and that we had then.

Dr. STANTON. I think that is most unfair to refer to our news organization that way.

The CHAIRMAN. Being prophets and disciples of Christ?

Dr. STANTON. No • as being traitors.

The CHAIRMAN. I don't say they were traitors I said Jesus had those

men and he picked what he thought were the 12 most perfect men he

could find.

Dr. STANTON. Then, sir; I misunderstood what you said.

The CHAIRMAN. I didn't call them traitors or anything like that; no,

sir, I would not do that.

Mr. SPRINGER. Mr. Chairman, may I say this.

I wondered about this, Dr. Stanton, because in the pieces of mail

that came to me from the ones to whom you had written it didn't explain what was involved at all, it is a general statement like this.

Fortunately the daily newspapers in my district, of which there are

eight, one wrote an editorial along your line. I wrote back a three-page

letter explaining everything that was involved in it and I had a very

nice letter back from the editor-in-chief which heads up five or six

newspapers thanking me for that and printing my letter.

Now the other seven you wrote to, none of them did anything. Two

of them before you did, wrote to me and they did not write an editorial. You undoubtedly have an idea of trying to influence the Congress by these letters. Now there is nothing unconstitutional about that.

I have serious reservations about the ethics of it but there is nothing

unconstitutional about it because I think had this been explained in

detail as to what was always involved and what we were intending to
148

do, I think it would have been perfectly fair. But I say to my chairman that you don't have nearly as much influence as I thought you

did because one day I received from your Washington office a packet

of editorials that thick of big newspapers all over the country.

I was somewhat surprised of the absolute ignorance in the editorials

of the issue involved at all. They thought this was an entirely first

amendment issue and somewhere along the line the stuff that you sent

out gave them the impression—let me give it the way I quoted in a

letter. Newspapers are next. This is why they wrote the editorial.

The inference of this was, well, if this happens to TV, newspapers

are next. Well, in my letters of reply I quoted from the Constitution

about the press. It does not say anything in there about media regulated by the Government, it says the press. But I was not disturbed by

it myself or upset, I wondered about the ethics of it. That is perfectly

your right to do those things. But I was bothered by the fact that only

a very, very narrow range of information was given in fact, the very

barest range of information was supplied to these people.

That is all, Mr. Chairman. Thank you.

Mr. PICKLE. May I just make a personal observation, Dr. Stanton.

As one member of the committee I am as uncomfortable as a participant in this hearing as you may be as a witness. It is not my contention

that your network or your stations had been unfair in the general

broadcasting of news. In the overall picture, the networks, you have

done a tremendously good and effective job and I think each of us

would testify to that on the local basis.

My radio and TV people normally in the interviews treat me better

than if I had written it out. At least I am always glad they don't quote

me fully on things we have talked about. I have no big complaint on

this. In the big overall picture you do a very commendable job but that

is not to say that we, a congressional committee, have not got the right

to make an inquiry into a particular broadcast where there has been a,

specific charge that there was deception, and this is what we are trying to determine now.

Are we entitled now to obtain these outages? Is an outage of an electronic interview the same as a reporter's notes? Is this the first

amendment? It is our strong contention that we are not violating or

questioning the first amendment but rather we are contending that

in this particular instance that there is strong evidence that there has

been deception. This is what we are asking for.

Now you have not given us information, you told us in advance that

you were not going to. I think that is a mistake because it still leaves

the question open. Do we have the whole picture? Was there deception

or not by your refusal to say that a particular question No. 10 was not

shown in connection with the answer to question No. 10. As long as

you do not give us that, in a sense as lona as you keep talking about the

first amendment and your refusal to give us the full information on

the outages, you in effect take the fifth amendment.

We are asking for facts and information. I know you want to give

us the answer as well as we want the answer. If you don't give us the

information, then we will have a confrontation.

The CHAIRMAN. Mr. President—

Mr. STANTON. Thank you, Mr. Chairman.
149

The CHAIRMAN. I am going to ask that this matter be put in the

record and say this, and I do it with hesitancy. I say that I was approached on the floor by a gentleman who said that he could not vote

with me when it comes up for contempt charges. I said, "That is all

right with me," but I said, "Why V' He said, 'The TV station in my

city has already told me that if I vote for contempt of Congress

charges that I will not be elected to Congress next time, they would

see to it." He said, "If you ever quote me I will have to disavow it because it was between him and me." I am not going to mention his name

but this occurred on the House floor.

Now there are some editorials being written, some of them I think in broadcast magazines, I am not sure but I am certain that some of

our staff would know, saying that I had canvassed every member of

this committee and that I didn't have the votes to pass contempt

charges. I say to you and to the public I have only asked one man that is on the committee how he was going to vote because it was said to me that he had been approached and had promised that he would vote for

the networks.

I went to him because I wanted to know if this was true. His answer

to me was, "I don't believe what you are doing is right," but he said,

"I will when the time comes vote with you." Now I just want this for

the record because there has been so much said in so many papers and

so many editorials that we are trying to get into the first amendment

and that we are trying to prohibit you and your network from giving

the news to this country as it should be and that we are trying to tell

you what to say.

Nothing could be further from the truth, Dr. Stanton. We have not.

Everything that we have said, we have not tried to enter into any one

thing you have said about the Pentagon. The fact is that many of the

members of this committee have said, "Hurray, God bless you," but if

you are going to use deceptive methods then maybe we ought to take a

look to see what is happening—not to protect the Pentagon but to

protect the people of America from this kind of practice because if

it is not stopped now, it will go on and on and on and there is no place

then we know where it is going to stop.

Now I want to say again to you that I hold you in the highest

esteem and I have, as I say, for 20 years. I think you are a gentleman.

I think that you have tried to do justice to your profession but this has

come to a serious point. I think this is a turning point one way or another as to which way America is going to go. I think you share with

me some of the awesome power that your organization has and its

influence, not only on the adults of America but the children of this

land and its future.

I think that you share with me, too, as an elected representative. that

I and each one of these others has a duty and if we think that something has to be done, to do that job. I don't think you would dispute

that. If we do it without malice, if we do it without trying to persecute,

and to perhaps have legislation, that is all we are trying to do. That is

what I want to assure you.

Again I say thanks a million for your cooperation. I think you have

been very cooperative and I think you have been very fair in your

answers, and I just say that I do want to ask before you go again,
150

Dr. Stanton, to make the record clear I am directing you to comply

with the subcommittee subpena. What is your answer?

Dr. STANTON. I respectfully decline.

The CHAIRMAN. All right, sir. I would say to you and to your attorney that this ends this period of the investigation and the committee will adjourn at this time and we will meet at a later date. We don't

have the full committee here.

Dr. STANTON. Mr. Chairman, may I ask Mr. Cutler to amend or to

put something here before you?

Mr. CUTLER. Mr. Chairman before the record closes I ask that the

legal opinion dated June 15, 1971, attached to the copies of Dr. Stanton's statement which he read into the record also be made a part of

the record.

The CHAIRMAN. It will be made a part of the record.

(See Appendix J,33. 361.)

Mr. CUTLER. May I also for the record supplement that opinion by

adding a citation of a case decided just yesterday. In the subcommittee's press release of May 26 and in Mr. Manelli s legal memorandum

I think on page 67 the point is made that the subcommittee noted that

filmed outtakes are not the equivalent of such written notes—that is, a

reporter's notes—and had never been so held by a court of law. For

yesterday, Mr. Chairman—

The CHAIRMAN. Just a minute. You are beginning to testify now.

Mr. CUTLER. I would like to add a citation on that very point.

The CHAIRMAN. Do you want to put it in the record?

Mr. CUTLER. Yes.

The CHAIRMAN. It will be put in the record.

Mr. SHOUP. I think that you have ruled that only the Doctor is a

witness here and Mr. Cutler is not. Certainly I have no objections if

Dr. Stanton would like to put this in the record but I think it should

be clear that he is the one requesting.

The CHAIRMAN. This is true. You will have to ask him to do it because—Yes, Dr. Stanton?

Dr. STANTON. I was at fault in reading my statement not to refer to

the document, the opinion that Mr. Cutler has just referred to, and I

would respectfully ask that that be included. I would also like to include the citation that Mr. Cutler began to refer to when you asked

me to be the only spokesman or witness. Could we include that in the

record by a letter to you so that we do it by that route?

The CHAIRMAN. Yes that will be acceptable. Within a certain time

we hope this will be done.

Mr. CUTLER. That outtakes are the equivalent of the reporter's notes.

The CHAIRMAN. Just a minute. It should come through Dr. Stanton.

Dr. STANTON. I will do it that way, sir.

(See App. H, p. 349.)

The CHAIRMAN. Again I say thank you very much for your cooperation in the whole thing.

This brings our committee session to an end and we will be at the

call of the Chair when we reassemble.

(Whereupon, at 2:30 p.m., the subcommittee recessed, subject to the

call of the Chair.)
APPENDIXES

APPENDIX A

NATIONAL BROADCASTING CO., INC.,

New York, N.Y., April 16, 1971.

Hon. HARLEY 0. STAGGERS,

Chairman, Special Subcommittee on Investigations, Interstate and Foreign Commerce Committee, House of Representatives, Washington, D.C.

DEAR CHARMAN STAGGERS: National Broadcasting Company, Inc. (NBC) herewith submits its response to the subpoena of the Special Subcommittee on Investigations, Interstate and Foreign Commerce Committee, House of Representatives,

directed to NBC, which is dated April 7, 1971 and requires the production of certain material concerning the program entitled "Say Goodbye."

This program was produced by Wolper Productions, Inc. An advertiser, The

Quaker Oats Company, licensed the program directly from the producer and purchased time from the NBC Television Network for broadcast of the program

over NBC facilities on January 8, 1971. The program was not produced by NBC

or NBC News nor did NBC or NBC News participate in its prep9riti-m.

I am enclosing a 16mm print of the program itself as supplied for broadcast

and a transcript of the program.

We have reviewed our files to determine whether we are in possession of any

material called for by the subpoena. I am attaching copies of such material as

we have.

Further and responding specifically to each item of the subpoena:

Items 1 and 2

A 16mm print of the program itself is being delivered herewith as is the

transcript.

NBC has no other film, or work print, outtake, sound tape recording, written script or transcript prepared, obtained or utilized in connection with the

preparation and/or presentation of the program.

Item 3

NBC has no contract or licensing agreement with Wolper Productions, Inc.

The program was supplied to NBC by the advertiser under a facilities contract between NBC and Ad Corn, Inc., the adverstinz wrency representing

The Quaker Oats Company. NBC was not a party to and did not participate

in such arrangements as may have been made between Wolper Productions,

Inc., on the one hand and the advertiser on the other.

Items 4 and 5

NBC made no disbursements whether money, things of value or legal consideration of any kind, to any individual appearing in the program and/or

filmed or recorded in connection with its preparation.

Respectfully yours,

Attachments.

(151)

CORYDON B. DUNFIAM.
152

"SAY GOODBYE"

Air Date: January 8, 1971, Prod. No. 0603 ((c) Wolper Productions,

Inc. 1970)

VIDEO AUDIO

CU EAGLE AND EAGLE

IN FLIGHT

OPTICAL EFFECT,

EAGLE IS REPLACED

BY BUILDING

BUILDING, TILT TO

REVEAL FREEWAY.

DISSOLVE TO SUN GLINT

SUNSET OVER CITY

TEASE

When I was a child, I ruled the earth

I owned it all, its total worth

Each fish, each field, each flower, each

butterfly.

As time went on I came to see

If I owned the earth then the earth

owns me

And each of us must live or both of us

• will die.

Each of us must live or both will die.

And I am going away, I heard her say

Oh yes, I'm going away, I heard her say.

I'm going away, won't someone say goodbye.

This is a memorial to the wild creatures

of the earth. It will be beautiful...

and true. Brutal and bloody. Come with

us... say goodbye.

END TEASER 
153

VIDEO AUDIO

MAIN TITLE MAIN TITLE 

•

"Say Goodbye"

Card #1: Narrated by Rod McKuen

•

Card #2: Executive Producer

Warren Bush

Card #3: A David L. Wolper Production

SMALL STREAM ANNOUNCER V.O.

You are about to watch a film

with a strong point of view. It

is about nature and man. Life

and death. It is at times beautiful

and at times violent because nature

and life are so. You are invited

to watch.., even though what you see

may move you deeply and force you

to question, perhaps uncomfortably,

man's relationship with the wild

animals of the earth."
154

VIDEO AUDIO

TREE REFLECTION

FOREST, DISSOLVE

TO COUGAR

SLOW MOTION

DEER ESCAPE

YOUNG COUGAR,

.STALKS, JUMPS

ON OLDER COUGAR

THE TWO COUGARS PLAY

TWO COUGARS PLAY;

YOUNG COUGAR

SPRINGS AWAY

SLOW MOTION RUN

AND FIRST CONTACT

WITH DEER

DEER AND COUGAR -

FACE EACH OTHER,

DEER ATTACKS

• THE FIGHT AND CHASE •

ACT I 

In peace and apparent tranquility, each

day begins. Yet life in the wild

perilous and sudden existence. For

hidden here is nature's time-honored 1P-w:

every living creature is either prey...

or predator.

The odds favor the deer. Nine times out

of ten, the cougar fails. To a

young mountain lion must develop raw

instinct into skill. Survival begins as

a game.

From its mother it learns the use of fang

and claw. The final lesson, however,

must be learned alone.

In its first encounter, the young cougar

discovers harsh reality. Food is not

available simply for the taking. It

must be won.
155

VIDEO AUDIO

CU DEER,

CU COUGAR

AND WALKS

AWAY

DISSOLVE TO

FISH UNDERWATER

THE CHAIN OF

PREDATORS

COYOTES AND SI:UNK

AND COYOTES R'.;

:OFF

ALLIGATOR UNDERWATER

ALLIGATOR EATS;

PRIMITIVE Y.AN

LS GIRAFFE

The duel is over. There is no anger here,

no sense of defeat. The moment is past.

The deer will face other predators. The

cougar will find other prey. This is the

way it must be to achieve a balance of

life.., and in nature, each creature

takes only what it needs to survive.

Despite the struggle, to the coyotes the

skunk is not an enemy... it's food.

The pursuit of food is the single most

powerful drive dominating the behavior

of every creature on earth. To satisfy

hunger, some may even resort to

cannibalism.

Hunger knows no morality.., for beast or

man. Throughout most of man's history,

we have lived as any other creature,

subject to the same laws of nature. To

survive we must eat; to eat we must hunt.

62-142 0 - 71 - 11
156

VIDEO AUDIO

THE CHASE BEGINS The chase is relentless, exhausting for

MEN RUN

GIRAFFE AND MEN

UNDER TREE

.THE FINAL

CONFRONTATION.

MEN EAT

SHIP'S RADAR

MAN WITH BINOCULARS

IS OF ICE FIELD;

CU, ICE BY SHIP

MS 84 IS CLUBS

LS, MS SEALS

ON ICE

both hunter arc, hunted. At stake, is

life itself. For one to live, the other

must die.

•

Thus man long lived; an integral part in

the balance of nature... like any other

creature,. taking only enour,h to meet his

basic ne,ads for survival.

Priorities have changed. Once we shared

the earth, now we plunder it. A fair

share no longer seems to satisfy our

basic needs.

These are the tools of commerce; the

primitive instruments of modern man.

Now a civilized predator, we hunt not for

meat, but for profit -- not only for our

legitimate needs, food and hides; but for

fertilizer, and the whims of fashion.
157

VIDEO AUDIO

CU & MS SEALS

LS BOAT

MS, CU & LS SEALS

AS THEY RUN

MEN ON SHIP, RIFLE,

THEY SHOOT TWICE

IS SHOT SEAL

MS MEN OFF

OF SHIP

THE SEAL HARVEST

No longer are we as one with nature.

We have set ourselves apart from it.

And by so doing, we may be destroying

the delicate balance that sustains all

life on earth.

Our rapaciousness is rationalized as a

harvest. Thus we delude ourselves and

call it... earning a living.

And thus we enforce our dominion over

all the creatures of the earth.

END ACT I 
•

BIRDS FLY

SUNRISE

158

VIDEO AUDIO

ACT II 

Bountiful and .-ternal, nature left alone

constantly rznews itself. No man is

needed here. For as day is born of

•

night, life miraculously emerges from the

DISSOLVE TO BIRTH

OF KANGAROO darkness of the womb.

Eta:IRY0 CRAWLS

KANGAROO MOTHER

REACHES POUCH

INSIDE POUCH,

SUCKLING

MOTHER AND BABY

BABY ELEPHANT

OTHER ANIMALS

WITH YOUNG

Toothless,: hairless, deaf r.nd blind, an

embryonlc kangaroo begins life facing an

ordeal.

Incredibly fragile, it weighs less than

an ounce. Marsupial instinct alone

guides it to the safety of its mother's

pouch. Here, for a hundred and ninety

days, it will remain.., tenaciously

clinging to the flesh that bore it.

So marvelous... so ordinary. Yet more

than anything else, this is the common

bond that links all of us to all of them.

We share life. We share the earth. It

is as much theirs.., as ours.

•
159

VIDEO AUDIO

LION IN TREE

BABOON AND BABY

BABOON BABY

• Living only in the present, at one with

nature's rhythrts, their innocence arouses

our envy. For time here has no meaning

and, unlike us, they are not burdened

•

with the knowledge that we are all bound

to die.

BABOON AND DEAD BABY Yet death touches us all. And with or

without understanding, it is mourned.

BIRD FLIES IN

SLOW MOTION

MORE BIRDS FLY,

SLOW MOTION

BEAR IN STREAM

BEAR CATCHES FISH,

STANDS.

SALMON IN STREAM

In nature, death is but an instant; the

life force, however, is inexorable...

sustained by delicately balanced

interrelationships between all living

organisms.

In accepting nature's bounty, a bear

demands nothing more than its right to

live, and, with instinctual wisdom; it

chooses not to dominate but to share.
160

VIDEO AUDIO 

SEALS UNDERWATER

SEALS ON SURFACE;

CLIMB ASHORE

BULL WALKS ACROSS

ROCKS

MOTHER AND PUPS

MS, LS OF SEALS

SEAL DIVES

In their freedom, animals give us cause

for admiration. Yet while we accept

their evolutionary superiority in

specifics, we deny them an equal right

to the earth we share.

In dominating the earth, we relegate

all other creatures to subservient roles

... and conveniently forget that they

have attributes we prefer to consider

ours alone.

It is more comforting to believe in our

superiority if we remain convinced that

man is unique... that no other creatures

communicate; form family units; create

communities; govern themselves. In them,

we call it instinct. In ourselves, we

call it intelligence.
161

VIDEO 'AUDIO

DOLPHIN UNDERWATER

CU UNDERWATER _

CU EMERGING YOUNG

There are some exceptions. In our myths

and legends, we freely grant human

characteristics to the dolphin. Yet

rarely have we considered the possibility

of eeluality. The dolphin is at least as

old as man and, some say, perhaps as

Intelligent.

The dolphin is an air-breathing mammal.

And like man, has evolved a complex

communication capability. In the act of

childbirth, it further confirms a

SURFACES & DIVES remarkable kinship.

BIRTH

SWIM BY, UNDERWATER

SURFACE SWIM

For the mother, the instant of birth is

critical.., for unless her newborn can

reach the surface for its first breath

of air... her baby will drown.

In parallel evolution with us for thirtyfive million years, the dolphin may yet

prove our equal. For as a master of the

sea, the dolphin still holds dominion

over most of the earth's surface.
•

162

VIDEO AUDIO

EAGLE IN AIR

CARRYING RABBIT

ARRIVES AT NEST

EAGLETS

EAGLETS EAT

In apparent freedom, the golden eagle

rules the sky in majesty. Yet it is

dependent for life on the bounty of the

earth below. With its six-foot wing

span, it soars over a hunting territory

as large as one hundred square miles to

search out its daily needs.

'A female eagle weighs almost twelve

pounds... and requires nearly a pound of

fresh meat every day.

The golden eagle hatches only two

eaglets a year. It will be six to seven

months before they will be able to hunt

for themselves. . Until then, they will be

as dependent on their mother's skill as

she is on the supply of game.

Although their diet is primarily rabbit,

rodent, snake and other birds, they have

.been systematically persecuted for

preying on sheep... a crime they rarely

commit.

•
163

VIDEO AUDIO

CU EAGLE, TILT DOIM

TO EAGLETS AS SHE

TAKES OFF

EAGLE IN FLIGHT

In the golden eagle, there is an instinct

for continuity. Although these eaglets

will soon join their mother in the air,

the nest and the territory will remain

her possession. Her young must make

their own way and seek out other lands...

wherever that may be.

The compulsion to territoriality is a

EAGLE IN AIR drive the eagle shares with us:.. and we

BEAR MS, OPEN

BADGER, CU, OPEN

CONFRONTATION

ON GROUND

share with every other creature on earth.

This is not a battle of prey versus

predator... but a contest between

competitors. Both the bear and the

badger are omnivorous; both feed on many

of the same plants and animals. Survival

may demand that one of them relinquish

this territory.., combat determines which

one.
164

VIDEO AUDIO

CHASE INTO WATER, The bear weighs nearly a thousand pounds;

CONFRONTATION IN

WA1ER the badger not quite twenty. Yet the

odds are even. By nature, the bear

prefers to eoid conflict... if it can.

SLOW MOTION

CONFRONTATION IN

WATER, OPEN

BEAR BREAKS AWAY,

BADGER PURSUES

BEAR OUT OF WATER

AND RUNS AWAY

•

The battle is bloodless.., but decisive.

The bear must mw seek out a food supply •

elsewhere in unoccupied territory.

BADGER OUT OF WATER The badger has won. Its needs are

AND 1HROUGH GRASS

CHEETAH WALKS

CHEETAH CUBS

YEARLINGS PLAY

OPEN

INTERCUTS,

CHEETAH AND BABOON

secure. For the moment, it is safe.

For the cheetah, territory is not fixed

but constantly changing... and always

includes enough room to play.

Invisible boundaries separate adjacent

claims and trespassing is forbidden. If

the nomadic cheetah crosses a neighbor's

defensive perimeter, a decision must be

made: fight or flee.
165

VIDEO , AUDIO

CONFRONTATION, OPEN

CHEETAH WALKS The cheetah begins its hunt with

calculated patience.

WARTHOG AND CHEETAH Protectively, a warthog keeps its

offspring close to its side. Formidable

and alert, the warthog is confident of

its ability to defend its young.

CHEETAH.AND GAZELLES The tiny, speedy Thompson's gazE.11 ., is

the cheetah's favorite prey. First, a

specific target is selected. Then,

ignoring all others, the pursuit begins.

CHASE AND KILL

OPEN

OTHERS JOIN, FAT

BLOODY FACES,

LICKING

GRAZING GAZELLES

CHEETAH ON HILL

AND PULL BACK

Usually solitary in its habits, the

adult cheetah will share its food with

the immediate members of its family...

until cubs and yearlings are able to

hunt for themselves.

The instant of violent death is Past.

For the gazelle and the cheetah, a

natural balance is momentarily struck.

And for all creatures of the wild, life

depends on that balance... if it is

disturbed, they die.

END ACT II 
166

VIDEO AUDIO

OPEN DESERT

INVASION MONTAGE

' OPEN

FENCE AND. DISSuLVE

TO PRAIRIE DOG

PRAIRIE DOGS

ACT III 

Once, the land, like a promise, reached

out to us... vast and full of dreams.

And with love and courage, we claimed it.

With pride, We made it ours. Now, the

promise is behind us. The dream is

nevermore.

Thus, the promise has been redeemed. In

naive arrogance, we have invaded all of

nature... a conqueror oblivious to the

consequences of excess And in our

growth, we ignore the fact that the land

cannot be ours alone.

These are prairie. dogs, ground squirrels

once so populous that American pioneers

could ride for days without losing sight

of them.

Called "dog towns," prairie dog

communities sometimes covered as much as

fifty square miles.
167

VIDEO AUDIO

EAT GRASS

ALERT AND lima

OPEN

Basically a herbivore, prairie dogs

fatten themselves on grass growing near

their burrows and, in the process,

become primary targets for the

carnivores of the prairie.

FERRET For the black footed ferret, the prairie

FERRET CHASES

PRAIRIE DOG

:OPEN -

MS AND CU FERRET

DISCOVER SECOND

FERRET

MATING PLAY OPEN

dog is an absolute necessity.

Feeding almost exclusively on prairie

dogs, the ferret also preempts their

burrows as a home.

Considered virtually extinct, the ferret

is unaware of its plight. If left

undisturbed, the few remaining may

survive to mate and re-populate their

species.
168

VIDEO AUDIO

TWO IN HOLE

PRAIRIE DOGS

LS & CU MAN

SPREADING GRAIN

WIDE SHOTS, COWBOY

AND CATTLE

CATTLE MOVE, OPEN

WALKIKG WITH COWBOY

HE DISMOUNTS

Ironically, however, the fate of the

ferret is tote.11y dependent on the

survival of the prairie dog. But, even

now - excep', in a few protected areas -

the perairie dug faces doom.

In response to private requests,

governmental agencies are active in the

control and management of the prairie

dog. Implementation of the policy is as

simple as the spreading of poisoned

grain.

The land.is ours. No longer will the

prairie dog rob our cattle of grass; no

more will our cattle be crippled by their

burrows.

The rancher simply represents our

collective needs. The choice is clear:

prairie dog or beefsteak. Together, we

write an epitaoh: "You can't eat

prairie dogs."
169

VIDEO AUDIO

SHOOT PRAIRIE DOGS

OPEN

SEA OTTER UNDERWATER

SEA OTTER, SURFACE

;EA OTTER WITH

LOCK ON CHEST

IT END OF WIDE

HOT, EATING

U, OTTER EATING

PALO:.E •

OTHER AND PU?

PEN

In the shallow kelp beds off

California's coast, one of the world's

most valuable fur bearing animals lives

in seeming peace.

The sea otter once had a thousand dollar

price tag on its pelt. Somehow it

survived a siege that saw fifty thousand

of its ancestors annually converted into

wearing apparel. Today, under protection,

the California sea otter numbers slightly

over one thousand.

With the help of a flat rock, the sea

otter ingeniously smashes open the shell

fish that compose its primary diet.

An adult will eat a fifth of its weight

every day... and in California waters,

Its favorite food is the abalone.
170

VIDEO AUDIO

CU, OTTER EATING

,ABALONE

:ABALONE

DIVER

INT. FACTORY

DIVER UNDERWATER

DIVER AND FACTORY

INTERCUTS, OPEN

The taste for abalone is leading the sea

otter into its second confrontation with

man.

These are abalone.. We consider them a

gourmet food. Since the 1920's, they

have been regularly harvested by

commercial divers and sports fishermen.

Once abundant, their numbers have rapidly

dwindled.

The scarcity of abalone has had a direct

economic effect in such small fishing

communities as Moro Bay. Fishermen

report the taking and processing of

abalone once supported a hundred

families; now it can support but twentyfive.

For the fishermen then, the otter is

simply a competitor; at stake is nothing

less than economic survival.
171

VIDEO AUDIO 

OTTER UNDERWATER

AND ON SURFACE

POLAR BEAR DIVES

OPEN

POLAR BEAR WALKS

ON ICE

'BEAR IN WATER,

ASLEEP ON ICE,

OPEN

GROOMING, MOTHER

AND CUBS, YAWNING

BEAR LOOKS UP

ANOTHER BEAR,

BREATHING HARD

AERIAL, SHADOW

ON 'COPTER

THE HELICOPTER

CHASE, OPEN

FIRST KILL '

ANOTHER CHASE BEGINS

ALL OPEN TO FINAL

SHOT OF SMALL CUBS

TO END AT

BEGINNING OF

FREEZE FRAME

No animal in history has ever competed

with us... and won.

Polar bears have two advantages over

other threatened animals: they have

nrthing we need and live where we can't.

For them, life is good.

At home in a hostile climate, the polar

bear for centuries has taken for granted

its freedom in the Arctic. But no more.

No other creature on earth kills for

less... a fur rug for a den... a head

mounted ov,.ir a bar.

•

Grieve for them.. .and for us.

62-142 0 - 71 - 12
172

VIDO AUDIO

LS HERDS

EIEPHANTS

MS HERDS

MS ZEBRA,

THEY REACT, RUN

BOY LEADS CATTLE

OPEN

PACK ANIMALS,

GROUP OF MASAI

GROUP, PACK A=ALS

ON ROAD

WOUNDED LION

ACT IV

Huge herds of animals like this once

graced the great prairies of North

America, as they do today in the

Serengeti plains of Africa.

During the last century, however, niliety

per cent of Africa's animals have been

destroyed. Only in such sanctuaries as

the Serengeti Preserve do they Ju7iive.

Yet the same force which reduced our

buffalo to near extinction is at work

here.

The pressure is on. Just as our

pioneers expanded westward, the swelling

populations of Africa are on the move and

the wild animals have no place to go.

The parallel is familiar and frightening.

For preceding the pioneers are the

pathfinders, the hunters who leave in

their wake a parade of dead and wounded

animals.
173

VIDEO AUDIO

HURT ANTELOPE

ELEPHANT

FAWN IN TRAP

LS 'GIRAFFES

An antelope, with a severed leg; an

elephant, with its trunk nearly cut

through; unable to feed itself, doomed

to starvation; this is the way we blaze

the path of civilization.

Contained now in small, scattered

remnants of land, many animals are almost

entirely dependent on us for their

survival.

ANIMALS IN FG Near sprawling Los Angeles, California,

CARS IN HG

zoolozists have transformed a stretch of

barren hills into a replica of the

African veldt. Here, in a reversal of

traditional roles, the animals roam

free; the people are confined to their

LIONS THROUGH

CAR WINDOW cages.

LIONS WALK

INTERCUT WITH

CHILD IN CAR

To see wild animals for the first time

In a simulation of their natural

environment, thousands of people gladly

pay admission.
174

VIDEO AUDIO

LION WALKS, CLIMBS

UP ON CAR WINDOW

JEEP, PAN AS BILL

YORK APPROACHES,

GETS IN

The animals here, however, are far more

than a p/ofitable tourist attraction.

For their ke-,3ers,. gate receipts support

a vital genr,o pool... a possible way of

restocking iitheir original habitat.

To zoologist Bill York, formerly of

Kenya, East Africa, his purpose is clear.

-BILL IN CAR, BILL YORK V.O.

. DRIVES

MS, JEEP ON ROAD

MALE LION, LIONESS

SPRAWLED ON GROUND

I believe that for the purpose

of conservaL,ion, it is necessary

to take animals from their natural

environment and put them in a safer

habitat. In other words, to take

them from Africa and bring them to

America where there is no

_possibility of them being wiped

out.

Protection is but the first step in

creating conditions favorable for

procreation.

In the last year, thirty-five lion cubs

have been born here at Lion Country

Safari. Seven of them have been returned

to Africa. 4
175

VIDEO AUDIO

LIONESS THROUGH WIRE

LIONESS AND CUBS

LIONESS, CUBS

BIRTH, CLEANING OF

CUB; CARE OF CUBS;

ETC., OPEN

LIONESS AND CUBS

Isolated .from the rest of the pride, a

young lioness is giving birth to her

first litter. Three cubs have already

been born.

For these cubs, the chance of reaching

maturity in the wild would be minimal;

there, the mortality rate is close to

ninety pec cent. Here, however, the odds

are reversed: nine out of ten survive.

A normal litter is three to four cubs;

delivery takes place over a period of

hours. Yet the instant of birth itself

is only. a matter of seconds.

Despite this apparent success, many

professional conservationists, like Bill

York, are convinced their efforts are

probably hopeless.
176

VIDEO AUDIO

BILL YORK V.O.

My personal belief is that we've

gone beyond the point of no return.

We just condemned the whole world

to a slow descent into nothing --

into disappearance. I don't

believe that we can do anything

about it now. I think if we

stopped, this minute -- if we

stopped as we are -- if we stop

polluting the air, if we stopped

destroying animals, stop destroying

habitat generally -- I' believe that

it is still too late.

BILL WATCHES LIONESS,

AT END OF HIS SPEECH

TURNS AND WALKF:: AWAY '

MRS. DOBSON WALKING In spite of- what the professionals

TOWARD CAR, CARRYING

BOX believe, Mrs. Bettie Dobson knows What

she feels. And her concern is the

survival of the desert tortoise.

CU, TORTOISE IN BOX BETTIE DOBSON V.O.

If people are going to keep

tortoises as pets, they should

learn how to properly care for them.

There's too many things that they

do for them. They drill holes in

their shell. They tie strings or

rope aroand their leg. They paint

their shells. And this is the type

of people we try to gather up the

tortoises from because they don't

know how to properly care for them

-- and return the tortoises to

their natural habitat.
•

177

VIDEO -AUDIO

CAR DRIVES OFF,

POV OF DESERT, PAN

TO MRS. DOBSON

DESERT AND TILT DOWN .

TO DISCOVER BETTIE

AND JOE AS THEY PLACE

TORTOISES BEHIND BUSHES

For Bettie and her son, Joe, the rescue

of the tortoise involves a weekly drive

of a hundred and fifty miles to and from

the Mojave Desert.

BETTIE DOBSON. V.O.

People have asked me how I can like

a tortoise. Well, tome, it's just

one of God's creatures. It's a

very slow-moving, relaxing thing

to have around.

To prevent the over-population of an

area, Bettie and Joe return tortoises

only to sites pre-selected by .

professional naturalists. The

territorial needs of the tortoise are

incredibly modest; sometimes measured by

the yard.

BETTIE CONTINUES BETTIE DOBSON V.O.

DISTRIBUTING THE

TORTOISES Tortoise really has only one

natural enemy... and that is man.

As new sub-divisions, new housing

tracts go farther and farther cyJt --

the .tortoise can't always move out

faster than these tracts come in.

Man is chasing it out of its home.

•
178

VIDEO AUDIO

TORTOISE DIGS IN

SAND; WALKS

HORSES IN PASTURE

CORRAL,- BINGO WESNER

AMONG HORSES

A prehistoric creature, the tortoise

predates man by millions of years. Yet

it may not survive us.

In the saga of our civilization, the

descendants of wild mustangs hold an

honored place. They have served us well

and long.., and have gained our respect

if not our love.

The expert care and breeding of horses

has been the occupation of Bingo Wesner

for nine years. It was a good life,

steady if not spectacular. Then his

horses started to die.

WESNER AND HORSES BINGO WESNER V.O.

LITTLE GIRL CLIMBS

FENCE AND PETS HORSES

Just before the horses died, they

could pass any vet inspection in the

country by any veterinarian that

wanted to check them. And then you

run them, or exercise them, or put

any stress on the animal whatsoever,

and they drop over dead.

In sixteen months, ten year old Diane

Wesner has seen thirteen horses die. One

of them was hers. And in her heart,

there will never be another horse quite

like Penny.
179

VIDEO AUDIO

SHE HUGS A COLT

GRASS AND HOLD AS This piece of land is thirty-five miles

DIANE LEADS HORSE

AWAY north of San Francisco. According to

Public Health experts, the grass is

contaminated with lead... and the ai.f

may contain certain pollutants that

trigger poisonous combinations. An

investigation is underway.., but that

of little consolation to Diane Wcsner.

REFINERY IS REVEALED

DURING HER SPEECH DIANE WESNER. V.O.

I feel pretty sad because our

. horses are dying. It's making us

sick, too. We're getting stomach

aches, and we're getting pains in

our chest, in our sides, and

everywhere. And I think if we don't

get this problem solved pretty soon,

that people will start dying too.

We've had thirteen horses that died

... because they ate the grass and

breathed the air.

PELICAN IN FLIGHT

OVER WAVES

Dichloro-diphenyl-trichloro-ethane is a

colorless, odorless, water insoluable,

crystalline insecticide. DDT. In the

'40's, when it went into use, sixty

thousand pelicans thrived by fishing

along the Texas gulf coast. Today -

only forty-six can be found.
180

VIDEO AUDIO .

GIRL WADES ASHORE

PELICANS IN WATER,

GIRL ENTERS AND

LOOKS THROUGH

BINOCULARS

GIRL WATCHES BIRDS

PELICAN TRIES TO

FLY, CAN'T. OPEN

GIRL LOOKS

In the summer of 1970, the pelicans'

plight claimed the attention of Beth

Payne. She's a teen-aged student in

Corpus Christi, Texas -- a self-tauFht

ornithologist concerned with the pelican.

.I1e.th feels she shares its fate.

This year, on this tiny island - and

nowhere else from the Mexican border to

the Florida peninsula - pelicans have

hatched some young. The new addlfions

total exactly nine.

For Beth, this is a lonely battle

station. The enemy is a massive

indifference to whether or not these few

birds live or die.

Beth observes that despite the best

efforts of the adult birds, some of their

offspring have not yet learned to fly...

or, once airborne, ho,:: to return

gracefully to the sea.
181

VIDEO AUDIO

CU GIRL To protect the pelicans, Beth faces

Incredible obstacles.

MS PELICANS

PELICANS ON SMALL

ISLAND, FLAP WINGS

Once the islane. itself was to be

dredged away to enlarge a ship's channel.

Her reports helped persuade engineers

•

otherwise.

Her pleas on behalf of the pelicans to

restrict the output of a proposed new

Industrial plant to non-toxic materials

may not be ay successful. If she fails,

the pelicans face almost certain

disaster... and, in Beth Payne's opinion,

so do re all.
182

VIDEO AUDIO

INTERCUTS OF GIRL, BETH PAYNE V.O.

PELICANS IN FLIGHT

PELICANS IN FLIGHT

Some people just don't really

consider animal life anything really

worth'... worth worrying about. But

still, vv.- lye got so many things in

common with animals, you know. We

live on the same earth and... we

just can't overrun it. We've got

to live together. You know,

'pelicans are just kind of the.

signals, or something. Because

whatever's killing them --

pesticides or DDT, or whatever it

is -- it's going to get to us

sooner or later. If they're going

to start dying, we're going to, too.

It may take longer, 'hut there's no

way. In the history books they

always talk about men going out and

conquering nature and it seems like

they should be able to do something

about coexisting instead. The more

man increases, the more animals

decrease. It doesn't seem like

there's room for both of them --

nobody's making room for both of

them. I mean, you can't just make

it 'a whole planet of concrete and

houses -- you just can't do that.

Since the birth of Christ, 250 animal

species have vanished from the face of

the earth. One hundred and sixty-six

of them in the past fifty years. For

the dead, we can only mourn. The fate

of the living is still in our hands.
183

VIDEO AUDIO

CRESTED IBIS

IBIS IN FLIGHT

PRAIRIE CHICKEN

The Japanese Crested Ibis. Once SO

numerous, it was a symbol of life

throughout the Far East. There are

eleven left in the world. You are seeing

eight of them.

•

The American prairie chicken. Ninetynine per cent of these have been

destroyed.

LEOPARD The Barbary Leopard. One hundred remain.

WHOOPING CRANE

PANDA

INDIAN .RHINO

KOMODO DRAGON

The whooping crane. It once filled the

flyways from Mexico to Canada. There are

fifty-six left in the wild.

Panda. Wenty in captivity, existence

in wild unknown.

Indian rhino. Survives only in

sanctuaries.

Komodo dragon. Three hundred survive in

one vulnerable community.
184

VIDEO AUDIO

ASIATIC LION . Asiatic lion. One hundred and sixty-two

remain alive. The casualty list of life

on earth goes on endlessly. Its message

is clear: share... or say goodbye.

OTHER ANIMALS DORY PREVIN _(V.0.) (SINGING) 

When I was a babe

The sea and the sun

Were the mother's arms

To which I'd run

Secure

Beneath the pure maternal sky.

Time went on

We grew apart

And I forgot my mother's heart

A heart deprived of love can only

cry.

And I am going away

I heard her say

I'm going away

I heard her say

I'm going away

Won't someone say goodbye.

When I was a child

I ruled the earth

I owned it all

Its total worth

Each fish, each field, each flower

Each butterfly,

As time went on I came to see .

If I owned the earth

Then the earth owns me

And each of us must live or both of

us will die.

Each of us must live or both will

die.

And I am going away

I heard her say

Oh yes, I'm going away

I heard her say

I'm going away

Won't someone say goodbye.
185

VIDEO AUDIO

Lu lu lu

Lu lu lu lu

Lu lu lu

Lu lu lu lu

Lu lu lu

Lu lu lu lu

Lu lu.

Alone in space we together float

A frightened crew in a fragile boat

And each of us must live

Or both will die.

Each of us must live

Or both will die.

And I am going away

I heard her say

Oh yes, I'm going away

I heard her say

I'm going away

Won't someone say goodbye..

Lu lu lu

Lu lu lu lu

Lu lu lu lu

Lu lu lu lu

Lu lu lu.

I heard her say

Goodbye

Goodbye

Goodbye

Goodbye

Goodbye.

END ACT IV
186

VIDEO AUDIO

END CREDITS END CREDITS 

ACKNOWLEDGMENTS 

We wish to gratefully acknowledge the

cooperation of private organizations,

governmental agencies and independent

film makers for their contributions to

the spirit and intent of "Say Goodbye."

ROLL 

William A. Anderson Virginia

Peter W. Bading Alaska

Walter H. Berlet Michigan

William F. Bryan California

Ben Cropp - Australia

C.S.I.R.O. Australia

Art Davidson Alaska

Murl Deusing Wisconsin

James E. Durden California

East African

Wildlife Society Africa

Environmental Films California

.J. B. Foster Canada

Goodway Films Florida

David Hancock Canada
187

VIDO AUDIO

62-142 0 - 71 - 13

Marineland, Inc.

John & Laurence Marshall

141P Studios.

Lee Miller

NHK International

Eugen Schuhmacher

Thoralf Smith-Svensen

A. D. Stenger

Glenn Titus

U.S. Bureau of Sport

Fisheries & Wildlife

Albert J. Wool

END ACKNOWLEDGMENTS

Florida

Massachusetts

Utah

Alaska

Japan

Germany

Norway

Texas

Oklahar7.

Washington,

D.C.

California
188

VIDEO • AUDIO

CARD

1. Written, Directed & Produced by

David H. Vowell

2. Film Editor

John F. Link II

3. Music Composed & Conducted by

Arthur Morton

4. Title Theme "Say Goodbye"

Composed and Sung by

Dory Previn

5. Cameramen

Stanley M. Lazan

Allen Daviau

J. Barry Herron

Peter Heiser, Jr.

Michael G. Chevalier

Michael Casey

Stephen Lighthill

6. Associate Producer

Joan Owens

Associated in Production

Walon Green, William T. Cartwright &

Allan Folsom

7. Additional Film Editing

John Soh

Walter 1.Iulconery

Assistant Film Editor

Joseph Parker

Production l•fanager

Andrew Banish ,

8. Post Production Supervisor

George Fredrick

Eusic Director

Jack Tillar

Supervising Sound Editor

Charles L. Campbell
189

VIDEO. AUDIO

CARD 

9. Sound Recordist

Sound Editor

Title Design

Negative Cutter

David Ronne

Colin C. Mouat

Wall Batterton

Elva Fraser

10. Wildlife Consultant Acting on

Behalf of

THE WORLD WILDLIFE FUND -

Dr. Kenneth E. Stager

Senior Curator of Birds & Mammals

Los Angeles County Museum of

Natural History

11. Production Supervisor

Conrad Holzgang

Copyright (c) 1970 Wolper

Productions, Inc. and The Quaker

Oats Company

12. A Wolper Production

(LOGO)

CONDOR IN FLIGHT

POLAR BEAR CUBS,

F.O.
190

WOLPER PRODUCTIONS, INC.,

November 16, 1970.

Mr. DUANE RATLIFF,

Manager of Program Standards, NBC—Burbank,

8000 W. Alemeda, Burbank, Calif.

DEAR DUANE: This is to confirm that we will—at your request—provide for a

screening of "Say Goodbye" on Wednesday, November 25, at 3 :30 p.m.; that the

screening of this first answer print will be for Herminio Traviesas, Jack Petrie,

and yourself. (I have just learned this date, that it will be impossible for Mr.

Kenneth Mason of the Quaker Oats Co., to join us for this screening. Mr. Mason

has so indicated to Mr. Traviesas by letter.)

Because we are moving into our new production quarters, I am not certain,

as of this writing, whether or not our own facilities for screening will be available. Therefore, I would suggest you contact my secretary, Mrs. Ashkenas, on

November 23 or 24, to determine the location of the screening.

Hopefully, I will be joined at the screening by David Wolper and the producer

of the film, David Vowell. With best wishes,

Cordially,

WARREN V. BUSH,

Vice President and Executive Producer, Television Documentaries.

WOLPER PRODUCTIONS INC.,

October 29, 1970.

MR. DUANE RATLIFF,

NBC—Burbank,

3000 T V. Alameda, Burbank, Calif.

DEAR DUANE: Herewith the final draft of the "Say Goodbye" narration. The

narration will be recorded on October 30, with pickup lines scheduled for recording on Novemlier 3. If there are any changes you require, we will have to be notified before the pickup date.

Incidentally, Duane, I must say it's been a great pleasure working with you on

"Say Goodbye." We believe it to be a soul-searching film—and we know it required some soul-searching decisions on your part and for that, we thank you.

Cordially,

WARREN V. BUSH,

Vice President and Executive Producer, Television Documentaries.

WOLPER PRODUCTIONS INC.,

August 24, 1970.

MR. WILLIAM F. STORKE,

Vice President—Special Programs,

National Broadcasting Co., New York, N.Y.

DEAR BILL: This is in response to your Telex to David Wolper of August 17

asking whether or not we had a chance to think of "a more arresting title than

'Say Goodbye' "for the upcoming Quaker Oats Special.

I haye spoken to David about this matter, and he in turn suggests that you

directly contact the sponsor, who apparently is quite pleased with the "Say

Goodbye" title. The Quaker Oats representative to whom you should speak is:

Mr. Kenneth Mason,

Group Vice President of Grocery Products,

The Quaker Oats Co.,

345 Merchandise Mart Plaza

Chicago, Illinois 60654

Incidentally, it should be noted that an original theme song entitled, "Say

Goodbye," has already been executed by Dory Previn. The words and music have

been specifically designed for inclusion within the film as a whole piece; and

additionally, we have planned to use the "Say Goodbye" song thematically

throughout the film's original score.

Whatever * * * the decision lies in the sponsor's hands.

Cordially,

WARREN BUSH,

Vice President & Executive Producer, Television Documentaries.
191

AUGUST 17, 1970.

MR. DAVID WOLPER,

c/o Twentieth Century Fox,

10201 West Pico, Los Angeles, Calif.

Have you had a chance to think of a more arresting title than "Say Goodbye"

which we discussed recently. I do think titles of specials are a much more critical

factor than series titles. In any event would appreciate your giving this matter

your attention.

Regards,

WILLIAM F. STORKE,

NBC, New York.

e

APPENDIX B

NATIONAL BROADCASTING CO., INC.,

Washington, D.C., May 7, 1971.

DANIEL J. MANELLI, Esq.,

Acting Chief Counsel, Special Subcommittee on Investigations, Committee on

Interstate and Foreign Commerce, U.S. House of Representatives, Rayburn

House Office Building, Washington, D.C.

DEAR Mn. MANELLI : During my testimony before the Special Subcommittee on

Investigations on April 20, J.u71, I was requested to supply the Committee with

a copy of NBC's general standards of program acceptability applicable to all programs supplied by advertisers for carriage on the NBC Television Network.

In response to that request, I enclose herewith the NBC Radio and Television

Broadcast Standards and Practices and the Television Code of the National Association of Broadcasters.

Respectfully yours,

Enclosures.

(193)

HOWARD MONDERER.
194

Preface

NBC RADIO AND TELEVISION BROADCAST STANDARDS AND PRACTICES

This booklet is designed to provide a general

familiarity with NBC standards and summarizes the

plinciples of a detailed manual on the subject. Questions involving the policies and practices it describes

should be addressed to the NBC Department of

Standards and Practices.

To a degree unmatched by any other medium, broadcasting

combines impact with intimacy; it brings a vivid world

of fact and fancy into the privacy of scores of millions

of individual homes. To this unique opportunity is linked

unique responsibility.

As a pioneer in network broadcasting—first in radio and

first in television—the National Broadcasting Company has

a clear recognition of that responsibility.

By tapping the best available creative resources, NBC's

program service produces a broad diversity of entertainment

and information—a balanced schedule for the highly

varied interests of a whole society.

In NBC's credo of broadcasting, no single program type

or category holds any exclusive claim to public service;

it is the wide-ranging total schedule that serves the

total public.

Apart from this concept of creative programming that

affirmatively seeks to meet audience interests and provide

new intellectual and cultural experiences, NBC serves

its responsibility by maintaining standards of taste and

propriety in all that it presents.

These standards were first codified by NBC in 1934 and

served as the model for the Radio and Television Codes of

the National Association of Broadcasters. They have

been revised from time to time to meet new requirements.

They are intended to serve not as a strait-jacket but as a

set of guidelines and principles which need never hinder

genuine creativity.

The latest manual of NBC Broadcast Standards and

Practices has been modified to meet new conditions of an

ever-changing industry, and to benefit from more than

35 years of broadcast experience. But it is still dedicated

to the same goal: to maintain conduct befitting an invited

guest in the home.
195

How NBC

Maintains

Broadcast

Standards

Although material broadcast on NBC comes from many

sources, NBC is directly responsible for everything

it presents. It therefore maintains continuing procedures

to insure the acceptability of all such material.

This Code of Broadcast Standards outlines the bases for

acceptability of program and advertising material, taking

into account applicable regulations and laws and the Radio

and Television Codes of the National Association of

Broadcasters, to which NBC subscribes. It serves as

reference for those—both within and outside NBC—who

have the creative responsibility for producing material

broadcast over NBC facilities.

The direct responsibility of interpreting and applying these

NBC Broadcast Standards and of proposing new or

modified standards is assumed by the Department of

Standards and Practices, which reports directly to management and is headed by a Vice-President who supervises

the Director of Broadcast Standards and the Director of

Practices. The staff consists of editors and assistants in

New York City and Burbank, California.

The Broadcast Standards Department concerns itself with

the actual content of all material—program and advertising

—broadcast by NBC. (The only exception is programs

produced by NBC News whose content is separately

reviewed by the NBC News Division.)

Broadcast Standards enlists the expertise of other NBC

departments as well as outside authorities for assistance in

the application of specialized provisions of this

Code of Broadcast Standards. A similar function for local

originations of the NBC Owned Stations is performed by

specially designated station personnel who maintain

liaison with the Broadcast Standards Department and are

guided by the same NBC policies.

The Practices Department is largely investigatory,

concerning itself with background facts of reliability and

fairness. For example, it is responsible for insuring that

conditions under which contestants compete on game shows

conform to the requirements set forth under Specific Rules

And Practices. It assures that conformance by fact-finding

prior to the actual program, monitoring during the broadcast, and spot checking after completion of the broadcast.
News

and Public

Affairs

2.

196

News Programs

Accurate and meaningful information about issues and

events is essential to the working of a free society. In reporting and interpreting the news, NBC newsmen do not take

partisan positions, but seek to report the facts fully and fairly

and to develop the meaning and significance of issues and

events. NBC standards in these fields involve principles

of journalism. Responsibility for their application is placed

on the management of NBC News.

1 News and Public Affairs programs broadcast over NBC

facilities must be produced or supervised by NBC News.

This rule intends no reflection on the capacity of independent producers to perform competently in these areas. It is

established because NBC believes it can better meet its

responsibilities for news and information dealing with public

issues if the researching, selection, editing and treatment of

material for such programs are conducted from the inception

under the direct supervision of its own professional news

staff. This does not apply to talks by government representatives or public personalities expressing their own views;

or presentations not directed to public issues, but dealing

with non-controversial aspects of the arts, science, agriculture, industrial processes, history, travel and the like.

Because of special local considerations and resources,

managers of NBC Owned Stations, when appropriate in

their judgment, may schedule for broadcast programs of

unusual value produced by outside groups such as the United

Nations or educational institutions.

2 NBC News Correspondents, as experienced and responsible

journalists, may properly interpret news developments to

bring out the significance and clarify the meaning of events

they report.

3 No techniques may be used which could reasonably be

anticipated to mislead the audience as to pertinent facts.

a. When previously recorded material is integrated into
the coverage of a news event, it must be identified as

having been recorded in advance. Recorded reports from

various locations must be so identified on the air and may

not be described as "direct reports" nor preceded by the

phrase, "We switch you to..

When there is a lapse of more than a day between the

recording and use of news material in which the time

element is relevant (as distinct from feature stories in

which timeliness is not a factor), the audience shall be

informed when the event reported took place.

b. In documentary and similar information programs,

when it is not possible for NBC News cameras to record an

event essential to full understanding of the story

presented, the event may be re-enacted provided:

The re-enactment is identical to the actual occurrence,

and

The program makes clear that a re-enactment has

occurred.

c. When logical film editing calls for the transposing of

interchangeable film sequences, such transposition must

be made in a way that cannot result in misleading the

audience as to the substance and chronology of the events

depicted.

d. In news interviews, when there is advance agreement

materially restricting an important or newsworthy area of

questioning, it must be stated on the program that such

limitation has been agreed upon. Appropriate disclosure

shall be made if the person being interviewed requires

that the questions be submitted in advance or if he

participates in editing a recording of the interview prior

to its use on the air.

e. Whenever an interview is reconstructed by interposing

questions between previously recorded answers it shall be

made clear that the interviewer was not present at the time

of the interview, if in fact he was not.

4 News shall be delivered only by NBC employees, individuals

under contract to NBC, reporters retained by NBC on a

part-time basis (stringers) and others who, in specific

situations, are considered by the NBC News management

to be qualified observers.

This does not, of course, exclude the use of reports

prepared by the news personnel of broadcasting stations

not owned by NBC or participation by NBC News in pool

arrangements.

5 In the factual presentation and in the analysis of news,

sensational treatment will be avoided. News may never

be presented in a manner which would create public alarm
4.

198

or panic. News items relating to crime or sex in particular

must be handled without morbid or sensational details

and must be treated with the judgment required in presentation to a family audience.

6 Care must be exercised in the acceptance and placement

of commercial announcements in news programs and such

announcements shall be clearly and distinctly set apart

from the news content. Recorded commercials, sound

effects, special visual effects, singing commercials, and

other program devices proposed for use in news programs

shall be judged on an individual basis. They may not be

used when they would be disturbing, misleading, or

inappropriate in the context of the news program. Where

lead-ins are used, they must be approved by the News

Division and may not be worded to suggest that they

pertain to a news report.

Controversial Issues

NBC recognizes that radio and television provide a valuable

forum for stimulating awareness of controversial public

issues. It contributes to public information by presenting

programs dealing with such issues that concern substantial

segments of the public.

These include a variety of programs in which the opposing

views on an issue are presented within an individual sustaining or sponsored program. In such cases the program itself

provides a balanced presentation. Such programs are produced by or under the supervision of NBC News.

NBC may also sell or provide time for the presentation by

an individual or organization of a particular point of view

on a controversial issue, subject to the applicability of the

following policies:

1 NBC reserves the right to determine whether the subject

proposed is of such national, state or local interest as to

warrant presentation over the broadcast facilities requested;

to judge whether the individual or organization seeking

to purchase or acquire time for the presentation of views

on a controversial issue has a valid interest in the subject

and is qualified to discuss it; to assess the need for discussion of the particular issue in the light of the past, present

and projected programs relating to that issue and against

the relative importance of other issues; and to review the

presentation for conformity with NBC policy.

2 In scheduling a controversial issue program which presents

the views of one side, NBC will afford opportunity to present opposing views to qualified individuals or organizations, unless it has already presented such opposing views.
199

5

Accordingly, one of the considerations in accepting a controversial issue program is the availability of time for

presentation of opposing views. To avoid unbalancing the

schedule with a multiplicity of controversial issue programs,

it is necessary for NBC to maintain a reasonable limitation

on time sales for such programs. This applies particularly

to proposed time purchases for a continuing series of controversial issue programs.

3 NBC does not schedule time periods of less than fifteen

minutes for discussion of a controversial issue, since a

reasonable amount of time is required for the presentation

and development of the issue in controversy. A sponsor

purchasing time for the presentation of his views on a

controversial issue may not include commercial messages

promoting the sale of his goods or services in such a

broadcast.

4 The presentation of a sponsor's views on an issue in controversy is permitted, subject to the conditions described

herein, in time periods purchased for that purpose. They are

not permitted as commercial messages in other programs.

5 A controversial issue program not produced by NBC,

whether sustaining or sponsored, shall contain an

appropriate identification of the source of the program as

required by the rules of the FCC and a disclaimer stating

that the views expressed are those of the sponsor or

program supplier.

6 The foregoing provisions do not apply to the presentation

of controversial issues in paid political broadcasts in connection with a political campaign or issues to be determined

by ballot, which are governed by the NBC Political Broadcast Procedures. Nor do they apply to the discussion of

controversial issues in news, commentary, forum or panel

discussion programs; these are produced by NBC News

and are governed by NBC News policies to assure balance,

fairness and non-partisanship.

Religious Programs

1 NBC cooperates with recognized organizations within each

of the three major religious groups in America—Catholic,

Jewish and Protestant—in presenting religious programming. In addition, the Radio Network may accept religious

programs under the sponsorship of responsible national

church bodies, and may accept appeals for support within

the program subject to approval by the Broadcast Standards

Department.

2 Religious programs must avoid proselytizing and engaging

in attacks upon any religion and, where devoted specifically
200

to religion, shall place major emphasis on broad religious

truths.

3 Solicitation of funds is not permitted on sustaining religious

programs. Offers of printed material may be made on such

programs subject to NBC approval.

Financial News Programs

1 Material for such programs should be based on financial

publications of accepted standing and may not include

material originated by financial organizations sponsoring

the programs.

2 Personnel associated with organizations holding an interest

in the marketing of general securities may not be involved

in the preparation or presentation of such programs.

3 All financial news programs are subject to prior review

by NBC News.

Public Service Announcements and Financial Solicitations

1 NBC, through its network and owned station facilities, supports public causes and charitable organizations by means

of announcements and other presentations. Essentially, this

activity for national causes is conducted in cooperation with

the Advertising Council, which considers proposals for such

presentations in all media and recommends allocations

to facilitate coordination of the effort.

2 NBC does not permit "telethons" on behalf of public or

charitable causes nor does it sell time on behalf of a

charitable organization or public cause.

3 NBC does not accept entertainment programs which are

designed to solicit contributions for public or charitable

causes. Although this is also the general rule for local

broadcasts on the NBC Owned Stations, the managers

of these stations may, as an exception to this policy, make

time available for special presentations on behalf of local

public or charitable causes, as in their judgment is appropriate to the special requirements of the community.

6.
201

Entertainment

Programs

7.

There are two general standards to be considered in judging

programs for broadcast acceptability: (1) Is the subject

matter acceptable? (2) Is the treatment consonant with

good taste?

Recognizing the subjective nature of these two questions,

the criterion used in reviewing programs is whether they

would be regarded as acceptable in subject matter and

treatment by a normal viewer under normal circumstances.

NBC believes that the proper application of these standards

should not preclude the presentation of programs of

genuine artistic or literary merit dealing with valid moral

and social issues even though they may be challenging or

controversial, or present realities which some people might

wish did not exist. The test is whether such material is

treated with dramatic integrity, rather than for purposes

of sensationalism; and whether it seeks to develop genuine

moral and artistic values, rather than to shock or exploit

audiences or appeal to prurient interests or morbid curiosity.

Nothing should be presented to mislead or deceive the

audience.

Dramatizations

Fictional events may not be presented as authentic.

Dramatizations which would give the false impression

that the dramatized material constitutes an actual

event are not permitted. Expletives such as "Flash!"

or "Bulletin!" and statements such as "We interrupt this

program to bring you ..." are reserved specifically for

newsroom use.

Impersonations

NBC does not permit impersonations in radio and

television presentations which would mislead the public

into believing that it had heard or seen "in person"

someone who, in fact, did not personally appear on

the program. When a living character is impersonated,

NBC reserves the right to require that person's consent

and written authorization for the impersonation.

Aspects of Sex

All of these—such as costuming, adultery and divorce

—should be treated with intelligent respect and due regard

for normally acceptable standards of behavior.
8.

202

Violence

Whether in terms of human conflict or cruelty to animals,

violence should never be presented for its own sake, for

shock effect or as an audience stimulant and should never

be carried to excess. Depictions of violence can be justified

as an expression of conflict only to the extent essential to

the advancement of plot or the depiction of characterization.

Other Sensitive Areas

1 References to crime, suicide, gambling, kidnapping,

drunkenness, narcotics, should be treated in such a manner

so as not to place them in an attractive light. Respect for

lawyers, police, teachers and the clergy should not be

diminished by undue and unnecessary emphasis on

unfavorable aspects of members of these professions.

2 When hypnosis is fictionally depicted in television drama,

it should be represented, wherever possible, as a scientific

technique and be utilized by characters portraying qualified

professionals such as physicians, psychiatrists, psychologists,

dentists. Demonstrations of actual hypnosis, as distinguished

from the fictional depiction of hypnosis, must be avoided

and hypnosis, as an aspect of "parlor game" antics, to create

humorous situations within a comedy setting cannot be used.

3 The varying aspects of race, creed, color and national

origin must be presented with dignity and objectivity.

4 Special precautions must be taken in reference to physical

or mental afflictions or deformities, to avoid offending the

sensitivities of viewers, particularly those so afflicted or

their families.

Special Precautions for Children's Programs

Programming directed specifically to children raises complex questions. These questions start with the fact that

"children" do not constitute a single group, but encompass

pre-schoolers and include the age ranges extending to the

middle teens.

No single rule can be formulated to define either content

or treatment for children's programs. Special subject matter

and special presentation are designed for as many subgroups of children as is practical in a schedule which is

open to the choice of the family. Programs for children and

young people should be designed to convey the commonly

accepted moral, social and ethical ideals characteristic of

American life; to reflect respect for parents, good morals

and honorable behavior; to foster healthy personality

development; and to provide opportunities for cultural and

intellectual growth as well as entertainment.
General

Provisions on

Advertising

Material

9.

62-142 0 - 71 - 14

203

Sponsorship Identification

Identification of sponsorship shall be made in all sponsored

programs in accordance with the requirements of the

Communications Act of 1934, as amended, and with the

Rules and Regulations of the Federal Communications

Commission.

Acceptability

1 NBC encourages advertising presentations that deal affirmatively with the results expected from the use of the product

or service, rather than those which dwell excessively on the

results of failure to use the product or service.

2 NBC accepts advertising presentations only after satisfactory

evidence of the integrity of the advertiser; the quality of

the product or the service; the validity of the claims and the

authenticity of the demonstrations; the good taste of the

presentation; compliance with applicable legal requirements.

3 NBC does not accept advertising presentations that contain:

a. Claims which have the capacity to deceive, mislead or

misrepresent.

b. Claims unfair to competitors, competing products, other

industries, professions or institutions.

c. Unqualified references to the safety of the product if the

package label or descriptive insert contains a statement of

caution or the normal use of the product presents a possible

hazard.

d. Advertising of goods or services not intended for sale but

designed to lure the public into purchasing higher priced

substitutes (known as "bait-switch" advertising).

e. Appeals to help fictitious characters by purchasing the

advertiser's product or service, or sending for a premium.

Placement of Commercial

1 NBC reserves the right to determine the placement of

• commercials in all programs.

2 Advertising messages must be placed within the framework

of the sponsored program. The program must be announced
204

and clearly identified before the first commercial placement and terminated after the last commercial placement.

3 Special caution must be exercised regarding the content and

presentation of commercials placed in or near programs

designed for children.

Sound Level

The sound level of advertising presentations should not

exceed that of the program in which they appear.

Subliminal Perception

The use of NBC broadcast facilities to transmit information

of any kind by "subliminal perception," or any similar

technique attempting to convey information to the audience

by transmitting messages below the threshold of normal

awareness, is not permitted.

Testimonials

1 Testimonials used, in whole or in part, must honestly reflect

in spirit and content the sentiments of the individuals

represented.

2 All claims in a testimonial—as in other advertising on NBC

facilities—must be supportable by facts and free of misleading implication.

3 The laws of certain states require written consent of the

individual for the use of his name. The advertiser must

submit to NBC, in writing, confirmation of such consent or

a blanket release assuming full responsibility for obtaining

such consent for each testimonial covering its period of use

on NBC facilities.

4 NBC staff employees may not give personal testimonials.

Research or Surveys

Reference may be made to the results of bona.fide surveys or

research relating to the product to be advertised, provided

that the results are not presented in a manner to create an

impression of fact beyond that established by the particular

survey, test or research.

10.
Classifications

Requiring

Special Care

11.

205

Personal Products

Advertising for personal products, when accepted, must

be presented in a restrained and inoffensive manner.

Investments

Advertising of the services of financial institutions must

be consistent with all applicable federal, state and local

laws. The mention of specific securities in commercials

requires the prior approval of the Standards and Practices

Department.

Ethical Drugs

The advertising of ethical drugs must be institutional

in character and may not include selling copy or claims

for a specific product.

Proprietary Products

The advertising of proprietary products presents important

considerations to the health of consumers. The following

principles and procedures govern their acceptability and

their advertising on NBC facilities.

1 Advertising for proprietary products is acceptable only

after relevant data, including clear evidence attesting to

their efficacy, have been submitted for examination

and appraisal.

2 Advertising of proprietary products must comply with

governmental rules and regulations.

3 No claims may be made that the product will effect a cure.

4 Words such as "safe," "without risk," "harmless," or terms

of similar meaning may not be used in an unqualified

manner.

5 Advertising appeals may not be made to children in the

area of health.

6 Books or pamphlets dealing with self-diagnosis or

self-medication are not acceptable.

7 NBC does not accept advertising for products used in the

treatment of conditions known to be chronic or irremedi-
206

12.

able or for conditions in which self-diagnosis or selfmedication might present an element of danger unless

(a) they can be self-administered without the order and

supervision of a physician, (b) they carry on their labels

the cautions required by the Federal Food, Drug and

Cosmetic Act of 1939 and (c) appropriate cautionary

references are included in the advertising proposed

for broadcast.

Statements by Members of the Medical Profession

Physicians, dentists or nurses, or actors representing them,

may not be employed directly or by implication in any

commercial messages for proprietary products.

Subject to approval by the Broadcast Standards Department,

advertisements of an institutional nature which are not

intended to sell specific products or services to the consumer,

as well as public service announcements by non-profit organizations, may be presented by physicians, dentists or

nurses.

Toys

1 Mention of cost must be avoided unless the price quoted

is the prevailing price in the area where the representation

is made.

2 "Only" and "just" may never be applied to the cost of a toy.

3 A toy may not be presented as essential to status.

4 When additional working or power elements are required

with a toy, such need must be revealed.

5 Inordinately dramatic or sensational sales messages

designed to demand a child's attention are not permitted.

Beer and Wine

Advertising of beer and wine is acceptable subject to

federal, state and local laws and when presented with good

taste.

Unacceptable Classifications

1 Hard liquor.

2 Firearms and fireworks.

3 Fortune telling, occultism, astrology, phrenology, palm

reading, numerology, mind reading or other pseudosciences.

4 Funeral homes, funeral services and Mortuaries.

5 Matrimonial and escort agencies.

6 Organizations which imply promises of employment

or make exaggerated claims for the opportunities awaiting

those who enroll for their courses.
Time

Standards

for

Advertising

Television

Network

13.

207

7 Employment advertising recruiting door-to-door salesmen.

8 Professions in which it is deemed unethical to advertise,

such as medical, psychiatric, dental, legal.

9 Tip sheets, race track publications, or organizations seeking

to advertise for the purpose of giving odds, promoting

betting or lotteries.

Time Standards for advertising are uniform on NBC

Network and Owned Station facilities unless specifically

noted. Not more than three commercial announcements

shall be scheduled consecutively.

Network Television: Single Sponsor Programs

Prime Time (Mon. thru Fri. 7:30-11:00 PM;

Sat. and Sun. 6:00-11:00 PM)

Program Period Maximum Commercial Allowance

15 minutes

30 minutes

60 minutes

2:00 minutes

3:00 minutes

6:00 minutes

Non-Prime Time (All other Times)

Program Period Maximum Commercial Allowance

5 minutes

10 minutes

15 minutes

30 minutes

60 minutes

1:15 minutes

2:10 minutes

3:00 minutes

4:15 minutes

7:00 minutes

Network Television: Daytime Segmented Programs

In daytime segmented programs sold in fifteen-minute units

two or more advertisers share the allowable commercial

time of three minutes. Where only two advertisers share the

program on a "major-minor basis," the "major" advertiser

receives two minutes, the "minor" advertiser, one minute.

Network Television: Multiple Sponsor Programs

Multiple sponsor programs are designed to enable two or

more advertisers to buy individual commercial messages,

usually one minute in length, within the program. In prime

time, a maximum of six minutes of commercial is allowed
208

Owned

Television

Stations

per 60-minute program period. In other times, a maximum of six minutes of commercial is allowed per

30-minute program period. This is in addition to billboards

which, however, are not allowed in such participation

programs as "Today" and "Tonight."

Billboards

Billboards may be used as stipulated by NBC, without

charge against the commercial time allowance, provided

they include no more than the identity of the program and

the sponsor's name, product or service, and a brief factual

description of the general nature thereof. This description

may be in the form of a slogan or a claim inherent to the

currently scheduled commercial message. Billboards should

not mention contests, offers or promotional teasers.

Prime Time

This is any continuous three-hour period within the station's

highest rate period.

1 Commercial allowances in prime time cover the inclusion

of billboards, public service announcements and

promotional announcements for other programs, as well

as commercial messages.

2 Commercial material in prime time may not exceed

four minutes in any 30-minute period, plus station-break

time in the aggregate of 70 seconds.

Non-Prime Time

Commercial time allowances are the same as for the

network, plus station-break time.

Television Station-Breaks

1 Station-break announcements will be scheduled subject to

suitability to the adjacent programs.

2 In prime time:

a. Station-breaks consist of not more than two commercial

announcements, plus non-commercial copy, such as station

identification or public service announcements.

b. Total station-break time in any 30-minute period may

not exceed 70 seconds.

3 In non-prime time:

A station-break consists of not more than two commercial

announcements, plus a conventional sponsored

10-second ID.

4 Station-break announcements may not adversely affect

a preceding or following program.
Radio

Network

and Owned

Stations

15.

209

Single Sponsor Programs

Programs under single sponsorship have the following

commercial time limits:

Program Period

5 minutes

10 minutes

15 minutes

25 minutes

30 minutes

45 minutes

55 minutes

60 minutes

Maximum Commercial Allowance

1:30 minutes

2:10 minutes

3:00 minutes

4:00 minutes

4:15 minutes

5:45 minutes

6:00 minutes

7:00 minutes

The time standards allowable to a single advertiser do not

affect the established practice of allowance of stationbreaks between programs.

Participation or Multiple Sponsor Programs

1 Commercial time may not exceed an average of 14 minutes

per hour computed on a weekly basis.

2 Commercial time may not exceed 18 minutes in any given

hour.

3 Commercial time may not exceed five minutes in any

15-minute period.

4 The above limitations of 14 and 18 minutes include the

use of time for commercial messages scheduled during

station-breaks.

Billboards

1 Except for "News-on-the-Hour," the total time for

billboards may not exceed the following allowances

regardless of the number of sponsors:

Program Period Opening Billboard Closing Billboard

60 or more minutes 20 seconds

30-60 minutes 10 seconds

5-30 minutes 5 seconds

20 seconds

10 seconds

5 seconds

2 "News-on-the-Hour"

Opening Billboard—NBC Radio 'News-on-the-Hour'

brought to you by"-15 word identification.

Closing Billboard—five words identifying sponsor.
210

Specific

Rules

and

Practices

16.

NBC reserves the right to require changes at any time in

any material for broadcast which, as proposed, written or

recorded, is deemed inconsistent with NBC standards

or policies. All network program material, except for news

program content which is reviewed by NBC News, and all

commercial copy and presentations are reviewed in advance

by the Broadcast Standards Department, which also

reviews certain material for local origination by NBC

Owned Stations, when such review can be conducted more

efficiently on a centralized basis. Other material for local

originations of the NBC Owned Stations is reviewed by

designated members of the stations' staffs, who maintain

close liaison with Broadcast Standards and are guided

by it on questions of interpretation and application of

NBC standards.

Material should be submitted as far in advance as possible,

but in no event later than three business days prior to recording or to studio rehearsal of live shows.

Program Review

1 The review of all live, film and tape programs should be

started as early as feasible, so that questionable areas can be

anticipated and avoided.

2 Scripted programs are reviewed by the Broadcast Standards

Department throughout the production process, from

story outline to "rough-cut" or final film. At the initial stage,

the Broadcast Standards editor obtains a story outline or

synopsis whenever possible, notes any potential problem

areas indicated by the outline or synopsis, and brings them

to the attention of the Program Department. In the

second stage, the editor reviews the shooting script from

which the actual program is to be performed, specifies

any cautions as to scenes or language and suggests a

method of treatment to insure acceptability. The third stage

of the review relates to film programs only and is a viewing

of the rough-cut. This allows the editor to check the film
211

against the shooting script and to suggest any additional

changes desirable. Following this, the editor may make a final

review by screening the "answer print" of the film.

Advertising Review

1 Advertising agencies preparing commercial messages

intended for NBC broadcast generally find it helpful to

consult with the Broadcast Standards Department in

advance of production. NBC encourages advance discussion

of the general outline and copy theme of a new campaign

to enable the Broadcast Standards Department to provide

initial guidance regarding questions which might

.arise under NBC standards.

2 For each commercial, advertising agencies must submit

copy (and in the case of television, advance script or

storyboard), a new product sample, substantiation for all

claims made and authentication of all demonstrations.

3 When a Federal Trade Commission complaint is issued

against an advertiser for claims in his advertising, the

Broadcast Standards Department undertakes a review to

determine whether the questioned claims are part of a

current schedule broadcast over NBC facilities. If this is the

case, the department rechecks the substantiation and

the authentication originally furnished by the advertising

agency in support of the commercial message. If satisfied

that the advertising is acceptable under NBC policies

and standards, the schedule is maintained.

4 A similar procedure is followed in connection with claims

made in a proposed commercial message in light of any

questions raised by a pre-existing FTC complaint.

5 In the case of a final order of the FTC, however, which

holds that any element of a current advertising message is

misleading or otherwise objectionable, NBC does not

broadcast that message after the effective date

of the final order.

Unrehearsed Programs

NBC seeks to exercise all control possible over audience

participation programs, ad-lib programs, and other

broadcasts in which complete written or recorded

continuity cannot be submitted in advance. Wherever

practical, participants in these programs are briefed

beforehand by an assigned program representative in

compliance with NBC policies. The program standards

outlined elsewhere also apply to all such programs.

Home Audience Contests

17 . No contest may constitute a lottery.
212

18.

The conditions under which contestants—whether at home

or as participants on a program—compete for prizes shall

be clearly stated so that there is no reasonable opportunity

for misunderstanding as to whether or not the contest

is primarily one of skill.

1 Complete details and continuity must be submitted to the

Broadcast Standards Department at least ten business days

prior to the first public announcement of the contest.

2 All broadcast continuity regarding contests must contain

clear and complete information regarding:

a. Who may participate.

b. The type of submission required.

c. Where, when and how the entry is to be submitted.

d. The basis upon which the submission will be judged.

e. The number and nature of the prizes and the order

in which they will be awarded.

f. The existence of duplicate prizes in the event of a tie.

g. The closing date, which shall be adhered to strictly.

The above information may be omitted in preliminary

or other announcements, provided it is readily available

to the public from other sources clearly revealed in

such "teaser" announcements.

3 Descriptions and/or visual representations of prizes must

not enlarge their value or otherwise mislead the public.

4 All submissions to contests broadcast over network facilities

must be addressed to a post office box.

5 Contest entries and other information related thereto shall

be made available to NBC on request.

6 Material may not be used in contests designed for children

which would encourage them to enter strange places

or converse with strangers in an effort to collect box tops,

labels, etc.

7 The advertiser will hold NBC and the affiliated stations free

from all liability in connection with his contest.

Advertiser Premiums and Offers

1 Full details and continuity including "build-up copy" and

a sample of the premium or offer must be submitted to the

Broadcast Standards Department at least ten business days

before the first announcement of the offer is made.

2 The termination date of any offer will be announced as far

in advance as possible. Such announcement will include

the statement that responses postmarked not later than midnight of the business day following withdrawal of the

offer shall be honored.
•

19.

213

3 All audience responses to premiums, offers or contests made

by advertisers must be sent to a post office box or to an

outside address arranged by the advertiser.

4 Descriptions or visual representations of premiums or offers

may not enlarge their value or mislead the public.

5 Premiums or offers designed for children must not

encourage them to enter strange places or converse with

strangers in order to collect box tops, labels, etc.

6 The advertiser will provide NBC with written assurance that

a sufficient supply of the premium or offer is readily available to avoid audience because of delivery delays.

7 The advertiser must honor any request for return of money

based on dissatisfaction with premiums or offers.

8 A premium or offer may not be harmful to person

or property.

9 The advertiser will hold NBC and the affiliated stations

harmless in connection with any premium or offer.

10 The premium or offer may not appeal to superstition on the

basis of "luck-bearing" powers or otherwise.

Cross-References

Cross-references to any other program are not permitted

except as follows:

1 Audience promotion announcements scheduled by the NBC

Advertising and Promotion Departments.

2 References by a sponsor within his commercial time to

another program of the same sponsor. However, such

references may not identify competing facilities, may not

be made for a program scheduled at a later hour on the

same day on competing facilities and may not spell out

both the day and the hour of the program on competing

facilities.

Program Pre-emption

When a sponsored program is pre-empted for another

program or an event of national importance, an

explanation will be made on the stations carrying such

program immediately preceding and following the

presentation. No such explanation shall be made, however,

in connection with the pre-emption of a program in order

to carry a talk by the President of the United States in his

capacity as Chief Executive.

Other Prohibitions

1 No arrangement may be entered into with any performer

or with his agent or representative whereby, in consid-

•
214

eration of the performer's appearance in a program on the

facilities of NBC, such performer or his agent or representative agrees to pay or pays NBC or any NBC employee

money or any other consideration.

2 No person engaged in or connected with the preparation

of programs for NBC or with the furnishing to NBC

of services, rights or facilities for programs, whether as an

employee of NBC, an independent contractor, or an

employee of such independent contractor, may request

or accept for such person's own account, directly or

indirectly, any money or other consideration:

a. To use or cause to be used, on any program broadcast

over NBC facilities, any performer, article, service,

facility, product, trade name or advertising slogan; or

b. To mention or cause to be mentioned, on any program

broadcast over NBC facilities, any trade name or advertising

slogan or the name of any performer, article, service,

facility or product.

3 The request or acceptance of money or any other consideration by an agent, representative or relative of any such

person, or by any other individual acting on behalf of such

person, will be deemed to be the act of the person.

4 Any NBC employee who acts in contravention of the foregoing policies shall be subject to discharge.

5 Agreements between NBC and any independent contractor

furnishing any programs, services, rights or facilities

should incorporate reference to this policy and for this

purpose packagers are asked to execute a disclosure letter.

6 Steps are taken to insure that persons appearing on or

rendering services in connection with NBC shows will be

made aware of the foregoing provisions and the penalties

imposed by federal law for failure to disclose the acceptance

or payment of consideration for effecting any of the above.

20.
/

Index

215

Paragraph: Page:

Acceptability of Material

1-3 9 Advertising

7 Program

17 Ad Lib Programs—see Unrehearsed

7 Adult Themes

7 Adultery—see Aspects of Sex

Advertising—see also Comm. Anncmnts.

1-3 9 Acceptability of

2 17 Claims

2 17 Demonstrations

9-10 Placement

11-12 Requiring Special Care

1-5 17 Review of

13-15 Time Standards

12-13 Unacceptable

4 8 Afflictions, Physical/Mental, ref. to

8 Animals, Treatment of —see Violence

Announcements

Commercial—see Commercial Announcements

5 5 Controversial Issue Program

19 Cross Reference

2a-g 18 Home Audience Contests

3d-e 3 Interview

1-2 18 Offers

19 Preempted Programs

1-2 18 Premiums and Offers

1 6 Public Service

3a-e 2-3 Recorded Material in News

9 sponsorship Identification

5 5 Sponsorship Identification Controv. Issue

15 Station Break, Radio

14 Station-Break, Television

Appeals— see also Solicitation

5 11 Children

10 19 Premiums and Offers

17 Audience Participation Programs—

see Unrehearsed

3d 9 "Bait-Switch" Advertising

12 Beer, Advertising for

9 13 Betting, Promotion of—see also Gambling

15 Billboards, Radio

14 Billboards, Television

14 Billboards, Contests, Offers or Promos

7 "Bulletin!", expletive use of—see Dramatizations

1-3 6 Charitable Causes—see Public Service...

Children

3 10 Advertising

( \
216

Paragraph: Page:

5 11 Advertising

5 12 Advertising— see Toys

6 18 Contests

5 19 Offers

8 Special Precautions in Programs for

7 11 Chronic Conditions, adv. treatment for

1 8 Clergy, reference to

3 8 Color, reference to

Commercial Announcements

3 10 Children & Placement

5 11 Children & Health

5 12 Children & Toys

3-4 5 Controversial Issues

13 Daytime Segmented TV

3-5 17 FTC Complaint Action

13 Limitation

15 Radio

13-14 TV

Multiple Sponsor

15 Radio

13 TV

6 4 News Pgms.

Participation Pgms.—see Multiple Sponsor

1-3 9-10 Placement

6 4 Placement in News Pgms.

12 Professionals, use in—see Statements by...

10 Research, reference to

Scheduling—see Limitation

10 Sound Level

10 Surveys, reference to

8 Conflict—see Violence

17-18 Contests

14 Billboards

1-6 4-5 Controversial Issues

5 5 Disclaimers

7 in Entertainment Pgms.

5 5 Identification of Source or Sponsor

6 5 in News ,Panel, etc.,Pgms.

6 5 in Paid Political Broadcasts

7 Costuming—see Aspects of Sex

3 8 Creed

Crime

1 8 in Drama

5 3-4 in News

19 Cross References

13 Daytime Segmented Pgms.

3a 3 "Direct Reports"

1
i

217

Paragraph: Page:

7 Divorce—see Aspects of Sex

Doctors—see Professional People

7 Dramatizations

3b 3 in N ews

11-12 Drug Advertising

12 Use of Professionals in— see Statements by.

1 8 Drugs, use in Drama

1 8 Drunkenness

6 12 Educational Institutions, adv. for

6 12 Employment, adv. for

7 13 Employment, adv. for

7-8 Entertainment Programs

5 12 Escort Agencies, adv. for—see Unaccept. Class.

11 Ethical Drugs

3c 3 Film Sequences, transposition of

Financial—see also Solicitation of Funds

11 Advertising—see Investments

6 News Programs

2 12 Firearms & Fireworks, adv. for—

see Unaccept. Class.

7 "Flash!", expletive use of —see Dramatizations

3-5 17 FTC Complaint Action

Funds, see Solicitation of

4 12 Funeral Homes/Services, adv. for—

see Unaccept. Class.

1 8 Gambling—see also Betting

17-18 Home Audience Contests

2 8 Hypnosis

9 Identification of Source or Sponsor

5 5 Controversial Issue Pgm.

2-3 14 IDs

4 8 Illness

7 Impersonations

Improper Practices—see Other Prohibitions

4 8 Insanity

1 8 Insobriety

3d-e 3 Interviews

11 Investment Advertising

6 Investment News Pgms.—see Financial

2 12 "Just", use of—see Toys

1 8 Kidnapping

Lawyers—see Professional People
218

Paragraph: Page:

8 13 Legal Services, adv. for

1 12 Liquor, adv. for —see Unaccept. Class.

9 13 Lotteries

17 Lotteries—see Home Audience Contests

Medical Profession—see Professional People

8 13 Medical Service, adv. for

12 "Men in White" — see Statements by Members...

4 8 Mental Illness

15 Multiple Sponsor —Radio

13-14 Multiple Sponsor —TV

3 10 Name, use in Testimonial

1-6 2-4 News Programs

6 4 Commercials

6 Financial

2 2 Interpretation

2 Partisan Position

3 2-3 Techniques

1-2 15 "News on the Hour"— see Billboards

13-14 Non-Prime Time—TV Network

14 Non-Prime Time—TV 0 & Os

9 13 Odds, giving of

1-10 18-19 Offers

14 Billboards

3 6 Printed Material in Religious P gm.

6 11 Printed Material re Self-diagnosis/Medication

2 12 "Only", use of —see Toys

1-6 19-20 Other Prohibitions

6 5 Panel Discussion, Controv. Issues

17 Participation Programs—see Unrehearsed

see also Multiple Sponsor

1-6 19-20 Payola —see Other Prohibitions

11 Personal Products, adv. for

4 8 Physical Afflictions

1-3 9-10 Placement of Commercial

3 10 Children's Program

6 4 News Program

2 20 Plugs

1 8 Police, reference to

6 5 Political Broadcasts

1-10 18-19 Premiums

13 Prime Time, TV Network

14 Prime Time, TV 0 & Os
219

Paragraph: Page:

Printed Material—see Offers

2e-f, 3 18 Prizes

Professional People

8 13 Advertising for

12 Advertising Message by—see Statements by..

12 Public Service Announcements—see Statements by...

1-2 8 Drama

19 Program Pre-emption

1-2 16-17 Program Review

1-7 11-12 Proprietary Products

1 2 Public Affairs Pgms.

1-3 6 Public Causes—see Public Service

1 6 Public Service Announcements

3 8 Race, reference to

9 13 Racetrack Organization/Publication, adv. for

3d-e 3 Recorded Material, Interviews

3a-e 2-3 Recorded Material, News

3b 3 Reenactment of Actual Event

7 Reenactment of Actual Event —see Dramatizations

3 8 Religion, reference to

1-3 5-6 Religious Programs

10 Research, reference to

3c 9 Safety of Product, reference to

4 11 Safety of Product, reference to

7 13 Salesmen, Recruiting of

2 17 Samples, New Product

1 18 Samples, Premium or Offer

6 12 Schools, adv. for

13 Segmented Programs—Daytime

6-7 11-12 Self-Diagnosis/Medication

Sensationalism

7 Entertainment Programs

5 3-4 News

7-8 Sensitive Areas in Programming

Sex

7 Entertainment Programs

5 3-4 News

62-142 0 - 71 - 15
220

of

Paragraph: Page:

Simulation

7 Entertainment Programs —see Dramatiz. & Imperson.

3b 3 in News

7 of News — see Dramatizations

Single Sponsor Programs

15 Radio

13 TV Network

1-3 6 Solicitation of Funds—see Public Service

3 6 Entertainment P gm.— see Public Service...

3 6 Religious P gms.

10 Sound Level, Commercials

9 Sponsor Identification

5 5 Controversial Issue

12 Statements by Members of Medical Profession

15

2,1-4 14

10

1 8

10

1 8

2 6

10

13-15

12

12

17

8

7

3a 3

12

Station Breaks—Radio

Station breaks—TV

Subliminal Perception

Suicide

Surveys, reference to

Teachers, reference to

Telethons—see Public Service...

Testimonials

Time Standards for Advertising

Toys, adv. for

Unacceptable Advertising Classifications

Unrehearsed Pgms.:'

Violence

"We Interrupt..." —see Dramatizations

"We Switch You To..

Wine, adv. for
221

(The Television Code of the National Association of Broadcasters is being

retained in the Subcommittee files.)

`Olk

APPENDIX C

COLUMBIA BROADCASTING SYSTEM, INC.,

New York, N.Y., April 30, 1971.

DEAR MR. CHAIRMAN: This will supplement our April 20 letter to the Subcommittee, concerning the Subcommittee's April 7 subpoena seeking outtakes, and

other materials not broadcast, in connection with the CBS News documentary

"The Selling of the Pentagon."

In that letter we noted that the demands set forth in the subpoena raise fundamental constitutional issues as to whether journalistic news judgments can be

subjected to legislative surveillance, and as to whether films, scripts and other

materials not broadcast could be subpoenaed for this purpose. At the Subcommittee's April 20 hearing, you placed in the record a statement setting forth the

Subcommittee's position on issuance of the subpoena. CBS has given careful consideration to the matters set forth in that statement.

We must advise the Subcommittee that we remain of the view that compliance

with the subpoena would have a chilling effect on the ability of journalists at

CBS and throughout the profession to report and interpret the news—including

of course, the conduct of government officials—with consequential injury to the

right of the public to receive such reports. Because of the significance of the

issues that have been raised, we attach a copy of a formal opinion of counsel,

prepared at the request of CBS. Counsel have advised us that the Subcommittee

statement does not set forth a valid constitutional basis for demanding production of the wide range of materials called for in this subpoena, and that we

have no obligation to comply with it. In these circumstances, we respectfully

decline to comply with the subpoena.

Without conceding the right of the Subcommittee to compel the production

of the information required by the subpoena, we note that on April 20 we voluntarily supplied films and written transcripts of "The Selling of the Pentagon,"

and comments on it, as broadcast. Further, we voluntarily advise you that

except in a few incidental cases the names of those individuals appearing and

speaking in the documentary are contained in such films or transcripts, and that

under standard CBS policy applicable to this documentary there was no payment

to those persons except for reimbursement of out-of-pocket expenses such as meals

or travel, and nominal payments to provide legal consideration for formal releases.

(Total payments, to 13 individuals appearing in the broadcast, aggregated about

$300.) We will also furnish a copy of a sample of our standard release form

to Subcommittee counsel. All of this information is being provided voluntarily,

and not in compliance with the subpoena.

Our decision embodies no disrespect for the Subcommittee or the House. But

if the reporting of broadcast journalists—reporting often critical of the Government—is to be subject to official examination as to its "truth" by the Government, which also licenses broadcast stations, the vigor of the broadcast press

will be sapped and the public's right to receive news and information will be

impaired. We do not believe that the Subcommittee wishes to bring about this

result.

CBS's position rests not on the contention that "The Selling of the Pentagon"

or any other of its news broadcasts is, or should be, immune from criticism.

Rather it rests on the fundamental proposition that compliance with the subpoena would impinge upon press freedoms uncler the First Amendment. While

the First Amendment bars governmental surveillance of the press, it is essential

that the press itself review its own performance and that journalists continually engage in self-analysis and criticism and encourage, from multiple sources,

such criticism, evaluation and analysis by their professional colleagues. Thus,

in a 1969 speech before the Syracuse Press Club, Richard Salant, President of

CBS News, took note of this need, stating:

"What I suggest is that all of us in journalism make sure first that we search

our souls, examine and criticize ourselves: second, that we welcome and encourage systematic professional criticism and review."

(223)
plied in the editing of documentary 

224

broadcasts. While responsible journalists

journalists have raised genuine issues as to t

may reasonably differ concerning particular practices in particular cases, we do not intend to ignore these issues or to shrink from continuing self-examination of our standards and practices.

strenuously resist governmental encroachments on the right to report the news, and that the press cannot retain the public's trust without vigorous self-examina- tion and an open-minded willingness, voluntarily to strive to improve its service

fully urge the Subcommittee to reconsider the issuance of this subpoena.

to the American people.

CBS recognizes that comments on "The Selling of the Pentagon" by other

he standards that ought to be apIn essence, we believe that the public's interest demands that a free press must

On the basis of our April 20 letter and this further response, we again respectSincerely,

WILMER, CUTLER & PICKERING,

ROBERT V. EVANS.

Washington, D.C., April 27, 1971. COLUMBIA BROADCASTING SYSTEM, INC.,

51 West 52 Street, New York, N.Y.

DEAR Sins: You have asked for our opinion as to whether Columbia Broad- casting System, Inc. (CBS) is legally obligated to comply with the subpoena issued on April 7, 1971, by the Special Subcommittee on Investigations of the House Interstate and Foreign Commerce Committee and served on April 8, 1971,

on Frank Stanton, President of CBS.

We conclude that compelled production of materials and documents to support the Subcommittee's investigation will inevitably and unconstitutionally restrain the presentation of controversial issue programming over the broadcast medium, and deter broadcast journalists from making the kind of investigation into governmental activities on which such programming depends. No agency of the government has the constitutional power to cause such restraint. The First Amendment's guarantee of freedom of the press applies to the broadcast media

as it applies to any other journalistic medium, and this subpoena is an uncon- stitutional abridgment of that guarantee.

The relevant facts and the reasons for our conclusions are set out below.

THE SUBPOENA

The subpoena is in the form of a subpoena duccs tecum directed to Frank Stanton, President of CBS, or any corporate officer, requiring the production of a wide range of materials connected with the preparation of the CBS docu- mentary broadcast, "The Selling of the Pentagon."

The subpoenaed material includes: (1) film copies and transcripts of the broad- cast itself and of a broadcast of commentary that followed the documentary's rebroadcast on March 23, 1971; (2) "all film, workprints, outtakes, sound tape recordings, written scripts and/or transcripts prepared, obtained, or utilized" in the preparation or broadcast of the documentary and the subsequent com- mentary; (3) the names and addresses of all persons (except military, govern- mental, or CBS employees) who appeared in the documentary or were filmed

or recorded in the preparation of the documentary; (4) a statement (certified by CBS) of all disbursements of money, items of value or legal consideration of any kind made by CBS to any individual covered by item 3; and (5) copies of all written agreements, contracts, or releases ( or where they were verbal,

a written description thereof) entered into by CBS and individuals named in item 3.

On April 20, 1971, the Subcommittee, through Chairman Harley 0. Staggers, convened in executive session and issued a Statement outlining the general legislative subjects and the specific subject matter into which the Subcommittee is inquiring. Of the seven legislative areas identified, four constitute no more than a description of the jurisdiction of the Subcommittee regarding communi- cations matters—the Federal Communications Act of 1934, as amended, the Rules and Regulations of the Federal Communications Commission, the Com- mission's administration and enforcement of its rules, and the desirability of additional or remedial legislation for the "benefit and protection of the public." ( Statement, p. 4)
225

The remaining three legislative subjects evidence Subcommittee interest in the

"applicability, if any," of the FCC's Fairness Doctrine "to questions of factual

accuracy"; the adequacy of present laws and their administration to deal with

the "preparation and presentation of" news documentaries; and whether certain

(unidentified) technological advances or the employment of certain production

and editing techniques by networks and others require new laws to protect the

public "through disclosure requirements or other suitable means." (Id., pp. 4-5.)

Beyond these general legislative considerations, the statement suggests several more specific items of inquiry. Thus, the Subcommittee states its concern

"that the public be protected from deliberate staging and distortion of purportedly bona fide news . . ," and indicates that it intends to consider "whether

the public has a right to be advised when edited sequences are presented . . .

under conditions which might suggest that they have not been edited; whether

it has a right to be advised when an apparently continuous event is actually

the result of splicing together film and sound tracks which were obtained at

different times and places; and whether it has a right to be advised when

apparently spontaneous news coverage has been obtained through staging or

other prearrangements." 1

The Subcommittee states that with respect to the CBS broadcasts, allegations

have been made that "incidents and events made to appear spontaneous and bona

fide were, in fact, the product of questionable production techniques which distorted the original events." (Id., p. 10.) Finally, the Committee identifies the

"sole question under inquiry" as being whether "the producers of television news

documentary programs [are] engaging in factually false and misleading filming

and editing practices, consisting of rearranging, staging, or misrepresenting

events, giving viewers an erroneous impression that what they are seeing has

really happened, or that it happened in the way or under the circumstances in

which it is shown." (Id., pp. 10-11.) The Subcommittee defends the sweep and

relevance of the subpoena in these terms:

"One of the things we have discovered in the light of our previous investigations in this area is that once such a distortion has been accomplished and incorporated into a final broadcast, it is virtually impossible to detect. This is why

the original, uncut, and unedited material must be examined." (Id., p. 9.)

The Subcommittee disclaims any purpose to determine whether CBS has been

"biased" against the Department of Defense in its documentary or to "seek . . .

to curtail the presentation of controversial issues or of unpopular causes or

personalities." (Id., pp. 10, 12.) Despite these disclaimers, it is clear from the

statement of purposes that the Subcommittee will necessarily be engaged in farreaching surveillance of the specific news judgments and editorial decisions made

by CBS in the preparation and broadcast of "The Selling of the Pentagon." The

subjects to be investigated are the "production and editing techniques" or the

"filming and editing practices" employed by CBS and others in the preparation

and presentation of "The Selling of the Pentagon" and other news documentaries.

These techniques and practices are to be judged for "factual accuracy." A determination is to be made whether they are "factually false and misleading"

and whether they give viewers "an erroneous impression that what they are

seeing has really happened, or that it happened in the way or under the circumstances in which it is shown." Upon this basis, a further determination is to

be made whether the public should be "protected" against such falsehood or

error "through disclosure requirements or other suitable means."

Such an inquiry involves an effort to establish the truth or falsity of factual

information which news documentaries may contain by comparing the raw data

which journalists have gathered with the finished broadcast they have presented,

and determining whether their decisions to include, exclude, organize, rearrange

or otherwise depart from the raw data are in some sense "distortions" or convey

a "misleading impression." Thus, the Subcommittee will be inevitably involved

in an effort to apply a presumed objective criterion of truth both to the product

of journalism and to the very heart of the journalistic process.2

1 (Id., p. 9) We understand that CBS knows of no allegations that any scenes in "The

Selling of the Pentagon" were "staged."

2As we demonstrate later, the courts have consistently recognized that there can be

no such test for journalistic truth, since "[n] ews is history . . . and history is not total

recall, but a deliberate pruning of, and calling from the flux of events . . .,” and that

journalism produced against such a monolithic standard of truth would be "immeasurably

wearisome and utterly fatuous." United States V. Associated Press, Inc., 52 F. Supp. 362,

372 (S.D.N.Y. 1943) (L. Hand, J.), aff'd., 326 U.S. 1 (1945).
226

DISCUSSION

I.—BROADCAST JOURNALISM IS, FOR ALL RELEVANT PURPOSES, ENTITLED TO FIRST AMENDMENT PROTECTION IDENTICAL TO THAT AFFORDED ANY OTHER MEDIUM OF

THE PRESS

Implicit in the April 20 Statement of the Subcommittee, and explicit in other

statements of its Chairman and another Subcommittee member, is the assump- tion that sufficient difference exists between broadcasting and other journalistic media to legitimize the subpoena directed to CBS, even if such process would be unconstitutional if directed to a newspaper.' This viewpoint would permit gov- ernmental intrusion into the news judgments of the journalistic medium that, according to recent surveys, is looked to and relied upon by more Americans than

any other news source.'

Judicial precedents, however, are to the contrary. The Supreme Court and

lower courts have consistently held that broadcast journalists are entitled to First Amendment protection. See, e.g., United States v. Paramount Pictures, Inc.,

334 U.S. 131, 166 (1948) ("We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.") ; Superior Films, Inc. v. Department of Education, 346 U.S.

587, 589 (1954) (concurring opinion) ; Rumely v. United States, 197 F.2d 166,

177 (D.C. Cir. 1952), aff'd. on other grounds, 345 U.S. 41 (1953) ("[S]peech and

press by these new means—on the radio, on television, and in the movies—are

freedoms protected by the First Amendment.") ; American Broadcasting Co. v. United States, 110 F. Supp. 374, 389 (S.D.N.Y. 1953), aff'd on other grounds, 347

U.S. 284 (1954) ("Broadcasting and television are entitled to the protection of

the First Amendment to the Constitution, guaranteeing freedom of speech and

of the press.") ; Estes v. Texas, 381 U.S. 532, 539-40, 589, 604, 614-15 (1965)

(majority, concurring and dissenting opinions) ; St. Amant v. Thompson, 390

U.S. 727 (1968) ; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) (discussed more fully below).

The United States Court of Appeals for the Third Circuit has perhaps most

succinctly summarized the state of the law:

"[T]he fact that the news medium [involved in the libel ease before the court]

. . . is a radio station rather than a newspaper does not make the First Amendment discussion, in particular with regard to freedom of the press, any less

germane. Radio and television were, of course, unknown media when freedom of

the press was written into the Bill of Rights, but no rational distinction can be

made between radio and television on the one hand and the press on the other

in affording the constitutional protection contemplated by the First Amendment." Rosenbloom v. Metromedia, Inc., 415 F. 2d 892, 895 (3rd Cir. 1969), cert.

granted on other grounds, 397 U.S. 904 (1970) (emphasis supplied).

There is nothing new in this concept. It is, in fact, a constitutional interpretation which Congress affirmed almost forty-five years ago. The Radio Act of

1927 contains a provision, unchanged to the present, that explicitly bars the

Federal Communications Commission from exercising "the power of censorship

over the radio communications or signals transmitted by any radio station,"

or from acting to "interfere with the right of free speech by means of radio communication." See 47 U.S.C. § 326 (1964). Enactment of this provision was

1 As to the validity of the subpoena under the First Amendment, the Subcommittee's statement is limited to brief treatment of general language in two Supreme Court onin- ions and contains no discussion of the applicability of any cases proscribing abridg- ment of freedom of the press. Television Digest, Vol. 11, No. 15 (April 12, 1971) purports to quote Chairman Staggers' views on the constitutionality of such a subpoena as follows (p. 2.) :

"Q—Are a print reporter's notes different from TV's outtakes?

A—I've always believed they were different. You know that.

Q—Do you have power to subpoena my notes from this interview?

A—No.

Q—What if I were a reporter for TV talking to you on the phone?

A—Well, then, that would be different. The Committee could subpoena your notes. Q—Why?

A—TV is different. It's very important that the networks be accurate. Q—Is a congressional committee qualified to determine what's accurate? A—Yes. By using the outtakes, then we can determine if what was aired was fair &

accurate. . . ."

See also remarks of Rep. Springer. Transcript, pp. 55-56, 59-60.

2 See Broadcasting, Nov. 2, 1970, p. 48.
227

viewed at the time not merely as a Congressional limitation on agency power,

but as a recognition of the First Amendment rights of broadcasters, which are

not subject to Congressional trespass. As Rep. Scott, the House floor manager

of the conference report, stated in response to a complaint that the proposed

Radio Act supplied only very limited control over licensee programming:

"Yes; and you are trespassing very closely on sacred ground when you attempt

to control the right of free speech. It has become axiomatic to allow the freedom

of the press, and when Congress attempts by indirection to coerce and place a

supervision over the right of a man to say from a radio station what he believes

to be just and proper, I think Congress is trespassing upon a very sacred

principle." 68 Cong. Rec. 2567, 69th Cong., 2d Sess. (1927) (emphasis supplied).

To be sure, differing characteristics among the various media justify some

distinctions as to what constitutes permissible regulation without contravening

the First Amendment. See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503

(1952). In the case of broadcasting, some government regulation is required

to deal with the scarcity of frequencies available for this form of communication.

Thus, the Commission has been upheld in limiting portions of the broadcast

spectrum to certain specialized uses, such as amateur, aircraft, police, defense,

navigation, and industrial operation.' Courts have also upheld the Commission's

power to place some limits on the types of programming that may be employed

by new forms of broadcast service (such as Pay-TV), in order to increase the

diversity of service offered to the public and, at the same time, protect the viability of existing commercial uses of the broadcast spectrum. National Ass'n. of

Theater Owners v. FCC, 420 F. 2d 194 (D.C. Cir. 1969), cert. denied, 397 U.S.

922 (1970).

In sum, these cases have established that the First Amendment does not bar

the Federal government from regulating access to the spectrum, in order to maximize efficient utilization and augment the diversity of communication services.

Such decisions are entirely irrelevant to the curtailment of historic First Amendment rights posed by the Subcommittee's subpoena. That Amendment protects

the press from governmental intrusion into its internal journalistic processes,'

whether such intrusion be a direct attempt to regulate or an indirect attempt

to chill free exercise of those processes by compelling their disclosure. And no

case has ever held or indicated that such constitutional protection is not available to those broadcast media subject to governmental regulation.

In this respect, the Subcommittee's reliance upon National Broadcasting Co. v.

United States, 319 U.S. 190 (1943) and Red Lion Broadcasting Co. V. FCC, 395

U.S. 367 (1969) is misplaced. In NBC, the Court upheld the constitutionality of

Commission rules banning licensee-network arrangments which restricted the

freedom of licensees to choose programs that in their judgment best served the

public interest. The Court's decision specifically noted that the Commission's

justification for the rules was the need to protect the right of licensees to select

program material in the first instance. 319 U.S. at 199.

In Red Lion, the Court faced the question whether the Commission could

in certain limited circumstances create a right to reply to ensure that competing viewpoints on controversial issues of public importance receive adequate

opportunity for expression over the airwaves. The Fairness Doctrine (under

which these "personal attack" rules were established) and Section 315 of the

Communications Act (providing for "equal opportunities" for political candidates) are designed to serve occasionally competing First Amendment interests—the right of the public to obtain conflicting views on important issues, and

the right of broadcast journalists to report and interpret events and to conduct

discussions of important topics.3 Neither the rules before the Court nor the

1 See, e.g., California Citizen Band Ass'n. v. United States. 375 F. 2d 43 (9th Cir.),

cert. denied, 389 U.S. 844 (1967) ; Lafayette Radio Electronics Corp. v. United States,

345 F. 2d 278 (2d'Cir. 1965).

2 See Part II of this memorandum.

3 We do not understand anything in the Subcommittee's April 20 statement to suggest

that CBS has violated the Fairness Doctrine or personal attack tules, or to suggest that

in its coverage of the controversial issues rais.d in the broadcast, CBS has failed to

afford an opportunity for the expression of conflicting views. As we understand the matter, after the rebroadcast on March 23. CBS broadcast vigorous criticisms of "The Selling

of the Pentagon" by some of the Government officials interviewed on the documentary,

and on April 18. CBS broadcast an hour-lone discussion of the issues raised by the documentary, featuring two critics and two supnorters. Moreover, CBS has afforded critics

of the documentary extensive coverage in its news programs.
decision of the Court were intended to limit the right of the broadcaster to

select programs and program material in the first instance. To the contrary,

their goal was to ensure that, consistent with the First Amendment, once the

licensee had broadcast views that attacked another person, that person was

given an opportunity to air his reply.

By contrast, the specific effect of the subpoena and the legislative surveillance

it represents will be to chill the freedom of CBS journalists to select news and

documentary material for broadcast in the first instance. While the Court in Red

Lion had no such issue before it, it strongly suggested that the First Amendment

would not permit such a serious constitutional intrusion. The Court, in discussing the constitutional protections applicable to television, emphasized that

speech on public issues and public affairs is at the core of the interests protected

by the First Amendment, and that there is a First Amendment "right of the public to receive suitable access to social, political, esthetic, moral, and other ideas

and experiences . . ." which "may not constitutionally be abridged either by

Congress or by the FCC." 395 U.S. at 390.

Thus, the Court described the First Amendment as having "a major role to

play as the Congress itself recognized in § 326, which forbids FCC interference

with the right of free speech. . . " Id., at 389-90. The opinion underscores "the

purpose of the First Amendment to preserve an uninhibited marketplace of ideas

in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee."

Id., at 390. And the Court specifically noted that "more serious First Amendment issues" would be raised by action that restricted a licensee's right to decide what to broadcast in the first instance. Id., at 396.

Congress and the courts have not been alone in concluding that the First

Amendment applies with full force to broadcasting. The Attorney General's recent guidelines regarding the propriety of compelling production of reporters'

notes by grand jury subpoena explicitly are made applicable without distinction

to broadcast journalism as well as other journalistic forms. In introducing these

guidelines, the Attorney General counted the nation's radio and television as part

of the "numerous, vigorous and diverse" press that has resulted in "more freedom

of speech and freedom of the press in this country than in any country in the

world." "Free Press and Fair Trial: The Subpoena Controversy," an address by

Hon. John N. Mitchell, Attorney General of the United States, before the House

of Delegates, American Bar Association, August 10, 1970, at p. 10.

In sum, in their application to broadcasting, "the basic principles of freedom

of speech and the press, like the First Amendment's command, do not vary."

Joseph Burstyn, Inc. v. Wit8071, 343 U.S. 495, 503 (1952). And one of those principles, as we demonstrate below, is the right of journalists and news organizations to engage in news reporting and editing without having to face subsequent

government examination of all their filmed and written notes in order to weigh,

on the basis of hindsight, the accuracy and truth of their news judgments.'

The Subcommittee's implied assertion that a subpoena invalid against other

forms of journalism can be constitutional if applied to broadcasting is thus contrary to the applicable judicial, congressional, and executive precedents.

II. THE FIRST AMENDMENT FORBIDS THE CONGRESS FROM COMPELLING PRODUCTION

OF THE FILMED AND WRITTEN MATERIALS COMPILED IN THE PREPARATION OF "THE

SELLING OF THE PENTAGON"

A. Congress may not regulate the manner in which the press reports and interprets current events, particularly when such reports are critical of the

government.

The First Amendment provides that "Congress shall make no law . . .

abridging the freedom of . . . the press. . . ." The language of the Amendment

is unequivocal, and the Supreme Court has repeatedly, and often with great

eloquence, reaffirmed the principles implicit in it. "That Amendment rests on

the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a

free press is a condition of a free society." Associated Press v. United States,

1 The Subcommittee's Statement relies on earlier investigations of quiz programs and

the resulting legislation that banned certain fraudulent practices in such programs. (pp.

6-7.) The control of outright fraud and bribery in entertainment programs that are not

designed as vehicles for the communication of ideas is of course a far cry from efforts to

investigate and regulate news broadcasts criticizing Government activities.
229

326 U.S. 1, 20 (1945). "A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter

ourselves." Grosjean v. American Press Co., 297 U.S. 233, 250 (1936) .

In order to preserve these principles, the Court has often emphasized the

nearly absolute degree of protection to which freedom of the press is entitled.

For example, in striking down certain governmental restrictions on the right

of the press to comment on judicial proceedings, the Court has declared that

"the only conclusion supported by history is that the unqualified prohibitions

laid down by the framers were intended to give to liberty of the press, as to

other liberties, the broadest scope that could be countenanced in an orderly

society." Bridges v. California, 314 U.S. 252, 265 (1941). Similarly, in United

States v. Rumely, 345 U.S. 41, 56-57 (1953), the concurring opinion emphasized

the "preferred position granted speech and the press by the First Amendment . . . ," and declared that the Amendment "expresses the confidence that

the safety of society depends on the tolerance of government for hostile as well

as friendly criticism, that in a community where men's minds are free, there

must be room for the unorthodox as well as the orthodox views."'

Where, as here, a governmental threat to freedom of the press arises as a result

of a journalistic effort to criticize aspects of governmental operations, the Court

has been particularly sensitive to "the primary need of a vigilant and courageous

press . . .," Near v. Minnesota ex rel. Olson, 283 U.S. 697, 720 (1931), and to the

fact that "Mlle free press has been a mighty catalyst in awakening public interest in governmental affairs. . . ." Estes v. Texas, 381 U.S. 532, 539 (1965). The

Court's view that freedom to comment on the operations of government represents one of the most fundamental forms of expression protected by the First

Amendment derives from its conviction that "speech concerning public affairs is

more than self-expression; it is the essence of self-government." Garrison v.

Louisiana. 379 U.S. 64, 74-75 (1964).2 "The liberty of opinion keeps governments

themselves in due subjection to their duties." Erskine's Speech in Defense of

Paine, quoted in Grosjean v. American Press Co., supra, 297 U.S. at 247-48.

Indeed, the freedom of the press to criticize the government is so absolute that

"no court of last resort in this country has ever held, or even suggested, that

prosecutions for libel on government have any place in the American system of

jurisprudence." New York Times v. Sullivan, 376 U.S. 254, 291 (1964) (quoting

from City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. 86, 88 (1923) ).

Recognition has been given to the danger that lc] barges of reprehensible

conduct, and in particular of official malfeasance, unquestionably create a public

scandal"—but "the theory of the constitutional guaranty is that even a more

serious public evil would be caused by authority to prevent publication." Near v.

Minnesota ex rel. Olson, supra, 283 U.S. at 722. Furthermore, the Court has gone

so far as to rule that "erroneous statement is inevitable in free debate, and. . . it

must be protected if the freedoms of expression are to have the 'breathing space'

that they 'need. . . to survive. . . " New York Times Co. v. Sullivan, supra, 376

U.S. at 271-72 (quoting NAACP v. Button, 371 U.S. 415, 433 (1963) ).

The efforts of the Subcommittee to force production of the working materials

involved in "The Selling of the Pentagon," on the grounds of alleged distortion

and on the premise that remedial legislation may be necessary, fly squarely in

the face of these constitutional principles. Because (as we show below) the Subcommittee's actions will inhibit the news judgments of the press, they are the

constitutional equivalent of an attempt to formulate a "law . . . abridging the

freedom of . . . the press. . . ." For in the First Amendment area, the courts do

1 In Rutnely, the Court blocked an effort by the House Select Committee on Lobbying

Activities to compel a witness to reveal the names of those who had made bulk purchases

of books distributed by the witness' organization. In condemning this misuse of a Congressional subpoena, the concurring opinion also declared that "[1]f the present inquiry

were sanctioned, the press would be subjected to harassment that in practical effect might

be as serious as censorship. . . . The books and pamphlets that are critical of the administration, that preach an unpopular policy in domestic or foreign affairs, that are in

disrepute in the orthodox school of thought will be suspect and subject to investigation.

. . . Through the harassment of hearings, investigations, reports, and subpoenas Government will hold a club over speech and over the press. Congress could not do this by law.

The power of investigation is also limited. . . ." Id., 345 U.S. at 57-58 (footnotes and

citations omitted).

2"[ S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern." Grosjean v. American Press. Co., supra, 297

U.S. at 250.
230

not distinguish between laws that abridge free speech and other lawmaking activities that have the same effect:

"Clearly, an investigation is subject to the command that the Congress shall

make no law abridging freedom of speech or press or assembly. While it is true

that there is no statute to be reviewed, and that an investigation is not a law,

nevertheless an investigation is part of lawmaking. It is justified solely as an

adjunct to the legislative process. The First Amendment may be invoked against

infringement of the protected freedoms by law or by lawmaking." Watkins v.

United States, 354 U.S. 178, 197 (1957).

In presuming that it may regulate the editorial judgments of newsmen, the

Subcommittee has chosen to ignore the "profound national commitment to the

principle that debate on public issues should be uninhibited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials." New York Times Co. v. Sullivan, supra, 376 U.S. at 270.

B. To compel production of filmed and written materials compiled in preparing

news documentaries would have an unconstitutionally chilling effect on First

Amendment freedoms.

The underlying assumption of the Subcommittee is reflected in its April 20th

Statement—that the Subcommittee is entitled to investigate, and has the power

to determine, whether television news documentary producers are engaging in

"factually false and misleading filming and editing practices. . . ." (p. 10). It is

for this purpose of judging the editorial fairness involved in the portrayal of

the CBS documentary that the Subcommittee has subpoenaed the background

scripts, recordings, and outtakes from which the final program was assembled.

(pp. 11-12).

This investigatory effort is wholly illusory, regardless of the well-meant intentions from which it may have sprung. As CBS asserted in its letter of April 20,

1971 to Chairman Staggers, truth or accuracy is not the same to all men. The

final published or broadcast product represents a news organization's best judgment of the truth. Journalists may, of course, often differ with one another as

well as with those whose conduct or views they report. They may even differ with

the government as to whether the accounts they publish or broadcast are "true."

Perhaps no one to date has captured this wisdom better than Judge Learned

Hand in United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943),

aff'd., 326 U.S. 1 (1945) :

"News is history; recent history, it is true, but veritable history, nevertheless;

and history is not total recall, but a deliberate pruning of, and calling from, the

flux of events. Were it possible by some magic telepathy to reproduce an occasion in all its particularity, all reproductions would be interchangeable; the

public could have no choice, provided that the process should be mechanically

perfect. But there is no such magic; and if there were, its result would be immeasurably wearisome, and utterly fatuous. In the production of news every

step involves the conscious intervention of some news gatherer, and two accounts

of the same event will never be the same. Those who make up the first record—

the reporters on the spot—are themselves seldom first hand witnesses; they must

take the stories of others as their raw materials, checking their veracity, eliminating their irrelevancies, finally producing an ordered version which will evoke

and retain the reader's attention and convince him of its truth. And the report

so prepared, when sent to his superiors, they in turn 'edit', before they send it

out . . . ; a process similar to the first. A personal impress is inevitable at every

stage; it gives its value to the dispatch, which without it would be unreadable."

First Amendment rights comprehend the reality that there is no universal

standard of journalistic truth. In the Supreme Court's words: "Authoritative

interpretations of the First Amendment guarantees have consistently refused to

recognize an exception for any tests of truth—whether administered by judges,

juries, or administrative officials—and especially one that puts the burden of

proving truth on the speaker." New York Times Co. v. Sullivan, supra, 376 U.S.

at 271.

An "untrammeled press as a vital source of public information" is one of our

most precious heritages. "The threat of sanctions may deter . . . [its] exercise

almost as potently as the actual application of sanctions. . . ." 2 A quixotic governmental search for ultimate truth in journalism necessarily can stifle this

1 Grosjean v. American Press Co., supra, 297 U.S. at 250.

2 NAACP v. Button, supra, 371 U.S. at 433. See Dombrowski v. Pfister, 380 U.S. 479

(1965).
231

"delicate and vulnerable" freedom, especially when it is conducted by compulsory

process. The recent landmark case of Caldwell v. United States, 434 F.2d 1081

(9th Cir. 1970) (cert. pending), is specific on this point: "[lit is not unreasonable to expect journalists everywhere to temper their reporting so as to reduce the

probability that they will be required to submit to interrogation. The First

Amendment guards against governmental action that induces such self-censorship." Id., at 1086!

Similarly, the Attorney General of the United States has recognized that an

unrestricted and unwise use of the subpoena "may seriously affect the vigor

of our press institutions and their relationships with the federal government.

the bar and the courts." "Free Press and Fair Trial: The Subpoena Controversy,"

address by the Hon. John N. Mitchell, Attorney General of the United States,

before the House of Delegates, American Bar Association, August 10, 1970, at

page 17.

The outtakes, and other material not broadcast, sought in the subpoena are the

broadcast journalist's equivalent of the newspaper reporter's notes, the "work

papers" from which the final story is produced. The "chill" created by the Subcommittee's subpoena derives from its effect on the journalist's informationgathering techniques as well as on the accessibility of news sources. The knowledge that their notes, films and tapes are subject to compulsory process will

inuitably cause newsmen to curtail the scope of their news-gathering activities.

TEM accuracy and fairness of news reporting and editorial judgment, the American public's "right to know"—the very goals the Subcommittee purports to be

sewing (Statement, p. 13)—will suffer. Moreover, key confidential sources of

liews will be silenced if every person filmed, taped, or interviewed, whether or not

included in the ultimate broadcast, must risk being identified as a result of governmental compulsion. As the Court of Appeals put it in Caldwell: "The very

concept of a free press requires that the news media be accorded a measure of

autonomy; that they should be free to pursue their own investigations to their

own ends without fear of governmental interference; and that they should be

able to protect their investigative processes." Caldwell v. United States, supra,

434 F.2d at 1086.

The chilling effect of the Subcommittee's subpoena on press freedom is potentially a far more powerful inhibition, and reaches at least equal if not more

fundamental rights, than governmental activities the Court has found unacceptable in a host of prior cases. E.g., Smith v. California, 361 U.S. 147 (1959)

(requirement that a bookseller examine the contents of the books he sells) ;

Manual Enterprises, Inc. v. Day, 370 U.S. 478, 492-93 (1962) (opinion of

Harlan, J.) (requirement that a magazine publisher investigate his advertisers) ;

Talley v. California, 362 U.S. 60 (1960) (requirement that names and addresses

of sponsors be printed on handbills) ; Gibson v. Florida Legislative Investigation

Committee, 372 U.S. 539 (1963) (requirement that an organization supply membership lists) ; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961)

(Id.) ; Bates v. City of Little Rock, 361 U.S. 516 (1960) (Id.) ; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (Id.).

In fact, the severity of the inhibition brings into question the very power of

Congress to investigate the editorial judgments of the press, let alone its power

to do so by compulsory process against journalists and their records:

"The theory of our Free Society is that government must be neutral when it

comes to the press—whether it be rightist or leftist, orthodox or unorthodox.

The theory is that in a community where men's minds are free, all shades of

The District Court for the District of Columbia, in granting a judgment of acquittal

from a conviction of contempt of Congress, has expressed very similar views:

"[T]hese hearings consisted of the questioning of persons employed in the newspaper

field, in radio and television. The danger inherent in such an investigation is found not

only in the effect upon those investigated but also in the potential effect upon others

In the same field. There is no need to stress the importance to our society of a free press—

and, therefore, of the necessity of enabling writers to formulate ideas and associations freely

and without fear of governmental retribution by investigation or otherwise. History is replete with instances in which writers and philosophers have been penalized by the state,

but it is always the writers and philosophers who are remembered and admired, never their

prosecutors or inquisitors. It is difficult to draw the line between investigations of the political beliefs of newspapermen and investigations of newspapers. For newspapers consist

of news stories and editorials ; and news stories and editorials are written by newspapermen. To inhibit the freedom of thought and association of newspapermen is to infringe

upon the freedom of the press. It is also a temptation to those investigating newspapermen

to wander into the field of press content, and at times during these hearings the Subcommittee was unable to resist even this direct invasion." United States v. Peck, 154 F. Stipp.

603, 605 (D.D.C. 1957) (footnote omitted).
232

opinion must be immune from governmental inquiry lest we end with regimenta- tion. Congress has no more authority in the field of the press than it does where the pulpit is involved. Since the editorials written and the news printed and the policies advocated by the press are none of the Government's business, I see no justification for the Government investigating the activities, leanings, ideology, qualifications, prejudices or politics of those who collect or write the news." Russell v. United States, 369 U.S. 749, 776-77 (1962) (concurring opinion). In the Subcommittee's Statement of April 20 (pp. 7-9), much is made of the fact that on three previous occasions, it has investigated the manner in which CBS produced news documentaries and that, in two of these cases, it subpoenaed unbroadeast film outtakes and other materials without objection from CBS. The Subcommittee's prior predilection for investigating CBS journalists and demanding their records in no way supports the legality of the present subpoena; if anything, it adds to the subpoena's illegal chilling effect. The fact that CBS did not challenge previous subpoenas does not concede or sustain their validity.' Moreover, and without prejudice to the right of CBS to challenge similar subpoenas in the future, it should be noted that in the one previous case in which

non-broadcast material was supplied CBS was being investigated not merely for an alleged attempt to distort or falsify the news; it was also accused of violating or having knowledge of violations of substantive criminal laws of gen- eral application not directed at journalists as such. Under such circumstances,

as the Attorney General's promulgation of subpoena guidelines reflects, there

may be a constitutional basis for balancing First Amendment rights against the need to enforce the general laws. No such balancing can be justified, however, when the object of the government's inquiry is not to enforce the general laws, but to regulate the practice of journalism itself, and to enforce some govern- mental standard of good journalistic practice. As the Ninth Circuit noted in Cald- well, supra, 434 F. 2d at 1083, n. 1:

"Where, as here, the alleged abridgement of First Amendment interests occurs

as a by-product of otherwise permissible governmental action not directed at the regulation of speech or press, 'resolution of the issues always involves a balanc- ing by the courts of the competing private and public interests at stake in the particular circumstances shown.' Barenblatt v. United States, 360 U.S. 109. . . ."

CONCLUSION

For all the facts and reasons stated above, it is our opinion that the Subcom- mittee may not constitutionally require the production of film and script mate- rials not actually broadcast and that CBS is under no legal duty to comply.

WILMER, CUTLER & PICKERING.

1 In one of these instances, as the Subcommittee states, the items requested had already been destroyed, so that CBS did not possess materials with which to respond.

2In addition, there is a narrower, but related First Amendment ground which renders

ing" 

the subpoena invalid. Even if the Subcommittee's purpose to investigate "filming and edit- practices were constitutional, the Subcommittee still would be required to adhere to the basic precept that such a purpose "cannot be persued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488 (1960). Even when considered in light of the Subcommittee's stated goals, the list of subpoenaed materials is overly broad and reflects the Subcom- mittee's failure to apply this constitutional standard to the situation before it. Had the Sub- Nimmittee done so, a much narrower set of materials would have been subpoenaed.
APPENDIX D

APRIL 20, 1971.

Hon. HARLEY 0. STAGGERS,

Chairman, Special Subcommittee on Investigations, Committee on Interstate and

Foreign Commerce, House of Representatives, Washington, D.C.

DEAR Mn. CHAIRMAN: Columbia Broadcasting System, Inc., hereby delivers to

the Subcommittee films and written transcripts of (1) its documentary entitled

"The Selling of the Pentagon" as broadcast on February 23 and March 23, 1971,

and (2) the broadcast comments on that documentary immediately following

its rebroadcast on March 23, 1971. These materials are furnished voluntarily and

not in compliance with the subpoena dated April 7. CBS respectfully reserves its

right to challenge the validity of the subpoena in its entirety.

It is our view that the wide-ranging demands of the Subcommittee's April 7

subpoena—for film, recordings, outtakes, transcripts, identifications of individuals, disbursements, and releases—raise fundamental constitutional issues as

to whether journalistic news judgments can be subjected to legislative surveillance. We believe that the Congress cannot constitutionally compel journalists to

produce such a wide range of materials.

With all respect for the rights and duties of the Congress, and with full recognition of the importance of the Congressional power to investigate, we cannot

conceive of any legitimate legislative purpose to which the materials requested

would be relevant. The First Amendment is sweeping and explicit; it says that

"Congress shall make no law . . . abridging the freedom of speech, or of the

press."

Outtakes and other materials not broadcast are the television equivalent of a

newspaper reporter's notes. They are the "work papers" of the intimate, personalized profession of journalism. Journalists frequently make comprehensive

records of what they see and hear, amassing more than will finally be reported.

Selectivity is an essential part of this winnowing process. The material may be

selected or passed over because of its relative significance compared to other

materials, because of judgments as to its accuracy, or because of considerations

related to the confidentiality of a source. As Clifton Daniel has remarked: "Discrimination is the very essence of the editing process. You must discriminate or

drown."

The final published or broadcast product represents a news organization's best

judgment of the truth. Truth, of course, is not the same to all men. Journalists

may differ with one another. They may differ with those whose conduct or views

they report. They may even differ with the Government as to whether the accounts they publish or broadcast are "true".

Indeed, the basic theory of the First Amendment is that there is no universal

standard of journalistic truth. In the Supreme Court's words: "Authoritative

interpretations of the First Amendment guarantees have consistently refused

to recognize an exception for any test of truth—whether administered by judges,

juries, or administrative officials—and especially one that puts the burden of

proving truth on the speaker." New York Times v. Sullivan, 376 U.S. 254, at

271 (1964).

As Judge Learned Hand observed in limited States v. Associated Press, 52 F.

Supp. 362, 372 ( S.D.N.Y. 1943) :

"[The newspaper] industry serves one of the most vital of all general interests: the dissemination of news from as many different sources, and with as

many different facets and colors as is possible. That interest is closely akin

to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out

of a multitude of tongues, than through any kind of authoritative selection. To

many this is, and always will be, folly; but we have staked upon it our all.

"News is history; recent history, it is true, but veritable history, nevertheless; and history is not total recall, but a deliberate pruning of, and calling from,

the flux of events. Were it possible by some magic telepathy to reproduce an

(233)
234

occasion in all its particularity, all reproductions would be interchangeable; the

public could have no choice, provided that the process should be mechanically

perfect. But there is no such magic; and if there were, its result would be

immeasurably wearisome, and utterly fatuous. In the production of news every

step involves the conscious intervention of some news gatherer, and two accounts

of the same event will never be the same. Those who make up the first record—

the reporters on the spot—are themselves seldom first hand witnesses; they must

take the stories of others as their raw material, checking their veracity, eliminating their irrelevancies, finally producing an ordered version which will evoke

and retain the reader's attention and convince him of its truth. And the report so

prepared, when sent to his superiors, they in turn 'edit', before they send it out

. . . ; a process similar to the first. A personal impress is inevitable at every stage;

it gives its value to the dispatch, which without it would be unreadable."

A policy of requiring news organizations to submit reporters' notes to the

scrutiny of a Government body whenever someone makes a charge of distortion

would have a chilling effect upon the exercise of the First Amendment right to

gather and report the news. Reporters will take and preserve fewer notes, and

television news teams will record and retain less film, if everything they take

down is subject to the risk of Government scrutiny. And the quality and content

of news reports will undergo subtle but significant self-censorship if reporters

are warned in advance that their final product will be compared to the raw

material, and that they will be called to account for any discrepancies.

The threat posed by the Subcommittee's investigation may already be working

its chilling effect upon journalists throughout the land. As the Ninth Circuit

recently ruled in the landmark case of Caldwell v. United States, "It is not

unreasonable to expect journalists everywhere to temper their reporting so as to

reduce the probability that they will be required to submit to interrogation. The

First Amendment guards against governmental action that induces such selfcensorship." 434 F.2d 1081, 1086 (9th Cir. 1970) (cert. pending).

The Subcommittee has not yet supplied CBS with any explanation as to the

Subcommittee's legislative purpose in seeking the material called for by the

subpoena, any information regarding the nature of the resolution authorizing

the issuance of the subpoena, any statement of reasons for the issuance of the

subpoena, or any statement of the subject matter under inquiry by the Subcommittee, as requested by CBS in its letter to you dated and delivered to your

office on April 15.

The Subcommittee will doubtless disclaim any desire to deter the exercise of

First Amendment rights. It may say it is not concerned with "news judgment",

but only with "falsification" or "distortion". No journalist is perfect, and we may

make mistakes for which we can be fairly criticized. But Government investigations into allegations of "falsification" or "distortion", particularly when

pressed to the point of compelling production of the filmed and written notes

compiled by reporters, will inevitably restrict the free and full exercise of rights

upon which our constitutional system depends. As the Court of Appeals noted in

Caldwell:

"The very concept of a free press requires that the news media be accorded a

measure of autonomy; that they should be free to pursue their own investigations to their own ends without fear of governmental interference; and that they

should be able to protect their investigative processes." Caldwell v. United States,

supra, at 1086.

We therefore earnestly urge that the demand to furnish outtakes and other

material not broadcast be reconsidered.

If further development of this vital issue is necessary, we will submit a more

detailed memorandum of law promptly after we receive a reply to our letter of

April 15.

Sincerely,

ROBERT V. EVANS.

CBS REPORTS—"THE SELLING OF THE PENTAGON" AS BROADCAST OVER THE CBS

TELEVISION NETWORK, TUESDAY, MARCH 23, 1971, 10:00-11 :00 P.M., EST

(Produced by CBS News—Reporter, Roger Mudd; written and produced by,

Peter Davis; Executive Producer, Perry Wolff)

ANNOUNCER. One month ago tonight CBS News presented a broadcast called

"The Selling of the Pentagon." Since then it has aroused considerable contro-
235

versy. Many said they liked it, some said they did not, and others said they

missed it. Tonight we present it again, and follow it with the comments of its

most prominent critics.

ROGER MUDD. Last spring American soldiers fought a two-day battle that did

not get into the newspapers or onto the television news broadcasts. Very few

people even knew about it. The battle was fought neither in Vietnam, nor in

Cambodia, nor anywhere else in Southeast Asia. All the action took place in

North Carolina. This was a military exercise, but it was also an exercise in

salesmanship—the selling of the Pentagon.

SPEAKER FOR MARINE CORPS. Gentlemen, today we have shown you the individual Marine, the man who implements foreign policy. He comes from all walks

of life, all over the U.S.A. He's not much different from the young men we see

on the street corners of America today, except he's been trained as a Marine.

He believes in what he is doing, and he's dedicated to his country and to the

job at hand, whatever it may be. In short, we could say he has a lot of plain,

old red-blooded American guts. Now this concludes our demonstration at this

range. The escorts will now show you to your buses. Thank you very much.

ANNOUNCER. CBS REPORTS: "The Selling of the Pentagon," with CBS News

Correspondent Roger Mudd.

(ANNOUNCEMENT)

ANNOUNCER. Here now is CBS News Correspondent Roger Mudd.

MUDD. Nothing is more essential to a democracy than the free flow of information. Misinformation, distortion, propaganda all interrupt that flow. They

make it impossible for people to know what their government is doing; which,

in a democracy, is crucial. The largest agency in our government is the Department of Defense, and it maintains a public relations division to inform people

of its activities. In December, Congress cut the appropriations for this division,

but, according to the Pentagon, it will still spend $30 million this year on public

affairs, an amount more than ten times what it spent to tell people about itself

just 12 years ago. Even this figure may be only the tip of the public relations

iceberg. A special, still unpublished report for the prestigious 20th Century

Fund estimates the real total at $190 million. The combined news budgets of the

three commercial television networks—ABC, CBS and NBC—are $146 million.

Whatever the true cost at the Pentagon, there have been recent charges in

the press and in Congress that the Department is using these public relations

funds not merely to inform but to convince and persuade the public on vital

issues of war and peace. Ten months ago, CBS News set out to investigate these

charges and to examine the range and variety of the Pentagon's public affairs

activities. We selected three areas for concentration: direct contacts with the

public, Defense Department films, and the Pentagon's use of the media—the

press and television. We sought no secret files, no politicians pleading special

causes, no access to classified documents. We looked only at what is being done

for the public—in public.

We began at an obvious location, Armed Forces Day on a military base. Fort

Jackson, South Carolina is proud of its soldiers, and once a year the public is

invited, to come out and take a look at them. At dozens of other bases, dozens of

other audiences see the same show. The major event is a firepower display. But

in the interests of information, they not only shoot, they also instruct.

INSTRUCTOR. The killing zone is 50 metres deep, 50 metres wide, and two metres

high. However, its fragments are also effective against light-skinned vehicles.

MUDD. The weapons officer on this range claimed that the information display

cost two million dollars. Later, Army public relations officials put the expense at

$22,000.

The last part is known as the "mad minute." It would be hard to argue with

that description.

Wlien the demonstration itself is over, another activity begins. The ammunition is gone but the weapons are not. Some of these are turned over to children

so they can get the heft and feel of the genuine article.

FIRST CHILD. All right, jack, here's a cool tank, man.

SECOND CHILD. I'm going over to the other tank.

THIRD CHILD. Get off....

FIRST CHILD. What are you doing?

THIRD CHILD. I'm going to shoot you.

SECOND CHILD. Ready... aim ... fire!

Colonel MACNEILL. In the Chinese view only one country has been liberated

from colonialism, and that is North Vietnam. The others will not be considered

62-142 0 71 16
236

liberated, in the Chinese viewpoint, until each and every one has a Communist

government.

MUDD. The Pentagon has a team of Colonels touring the country to lecture on

foreign policy. We found them in Peoria, Illinois, where they were invited to

speak to a mixed audience of civilians and military reservists. The invitation

was arranged by Peoria's Caterpillar Tractor Company, which did $39 million

of business last year with the Defense Department. The Army has a regulation

stating: "Personnel should not speak on the foreign policy implications of U.S. involvement in Vietnam."

Colonel MACNEILL. Well, now we're coming to the heart of the problem—Vietnam. Now the Chinese have clearly and repeatedly stated that Thailand is next

on their list after Vietnam. If South Vietnam becomes Communist it will be difficult for Laos to exist. The same goes for Cambodia, and the other countries of

Southeast Asia. I think if the Communists were to win in South Vietnam, the

record in the North—what happened in Tet of '68—makes it clear there would

be a bloodbath in store for a lot of the population of the South. The United

States is still going to remain an Asian power.

MUDD. Over the years, the Colonels have travelled—at taxpayers' expense—to

163 cities and spoken to 180,000 people. In a question and answer period, they

promote American presence in Southeast Asia.

• Colonel SERRELL. . . . the bloodbath, the indications at Hue during the Tet offen- sive as to what might be in store for people who would otherwise have some semblance of freedom or individuality, if we did stay and protect their interests

as well, admittedly, as our own.

Colonel BIRD. I personally believe by and large the college students are very sincere in their belief. I think a lot of them haven't attempted to study, to some degree, the history of other things like this....

Colonel MACNEILL. Some say there are no interests at stake today, some say

we had none in the beginning. I feel when we put half a million men in there, at least we placed national interest at stake when we did that.

CHILD. . . . I want Danny do one.

CHILD. . . . I want to play this one.

CHILD. Now it's my turn.

CHILD. Bob, let's see if you can do this.

FATHER. How many mistakes you gonna make?

MUDD. At a St. Paul, Minnesota shopping mall, an Army display emphasizes

power, a recurrent theme in Defense Department public relations programs. (MUSIC) The Army Exhibit Unit has been to 239 cities in 46 states and has been

seen by over 20 million people. The cost to taxpayers: $906,000 a year.

NARRATOR FOR ARMY FILM. The four M's—Mission, Motivation, Modernization

and Management—summarize Army Chief of Staff General William C. West- moreland's program for the future of the Army.

MUDD. The Army says it won't send these exhibits out unless requested by local civilians. The manager of this shopping mall told us how the Army's exhibit happened to be there.

MR. PETERS. We were approached by Sergeant Kerr, who is the local recruiting

sergeant in this area, a matter of three weeks ago, and he simply asked us would

we care to have the exhibit here on our mall. We said yes. So, it's here. ANNOUNCER FOR Ant FORCE. Approaching next will be Major Mike Kirby and his next maneuver, the exciting Wing Walk and Roll.

MUDD. The Air Force Thunderbirds flew 108 exhibitions last year in front of six million people. We were told that the Thunderbirds are supposed to attract volunteers, but what we found was a very elaborate commercial for air power.

ANNOUNCER FOR AIft FORCE. The Air Force has proved again and again its superiority against the enemy in the air war over North Vietnam. In an environment where the majority of our fighter pilots were flying tactical bombing mis- sions and not primarily hunting for enemy aircraft, the enemy still lost three aircraft for every one of ours in air-to-air combat.

General LEWIS WALT. We fought them up on the DMZ, we fought them across the Lao border, we fought them down south across the Cambodian border. But they're trying to keep the war going on—why? Because they think that we're going to give up and pull out before the job is done. That's what they've been told, that's what they read in our newspapers and our magazines.

MUDD. Tonight, like any other evening, there are between six and ten Pentagon speakers appearing in public. With military transportation at their disposal,
237

they traverse the country shaping the views of their audiences. For years,

General Lewis Walt has been the Marine speaker most in demand.

General WALT. This is what's kept the war going on. If we could have had the

entire American nation in back of us, all of our Americans in back of our Armed

Forces in South Vietnam, this war would have been over a year and a half ago.

GREEN BERET ANNOUNCER. Please pay particular attention to the hands, the

elbows, the knees, and the toe of the boot, which are used to deliver killing blows

to the vulnerable portions of the body.

Munn. When it comes to sheer muscle, the legendary Green Berets are the

Army's glamor exhibit. In 21 states last year, the Berets showed how people

kill people sometimes. On one occasion, they showed about a thousand kids in

New Jersey.

CHILD. C'mon . . . no! Damn you . . . ow! (crying)

MUDD. Each year, the Pentagon runs special guided tours for over 3,000 influential civilians. The Joint Civilian Orientation Conference is the aristocrat of these

tours, indeed of all Defense Department contacts with the public. For eight days

64 prominent citizens visit key military installations all over the country. To

give the community leaders more sense of participation, the Defense Department

outfits them in different colors that represent each of the Armed Services.

Included in this exclusive party are industrialists, bankers, college administrators, newspaper publishers and broad,casting executives. High ranking generals

accompanied the civilians. These two, three and four-star chaperons were available for briefing, picture-taking, and just mingling.

CBS News followed the distinguished visitors on a weekend war game in

North Carolina. The purpose of these tours, according to the Pentagon, is to

teach military realities. The guests are referred to as "major taxpayers." As

their education proceeded, we recorded some of the military realities and part of

their impact on the civilians.

The Army gave a demonstration of a massive troop airlift. An air and land

assault on enemy territory was simulated for the visitors. The idea here was to

show that thousands of troops can be transported thousands of miles in just a

few hours. What's more, when they get where they're going, they are ready to

fight.

JITTERBUG ANNOUNCER. Notice the jitterbugging action as the Cayuse make a

thorough search of suspected enemy locations. Such tactics were battle-tested in

Vietnam.

KENNEDY WAGON ANNOUNCER. To achieve success in combat, an infantry battalion depends upon the fighting strength of its rifle companies. The company is

composed of three rifle platoons and a weapons platoon.

MUDD. The 64 civilians themselves paid part of their own costs and the official

total price of this tour is only $12,000. Twelve thousand dollars, however, does

not include the amount spent on elaborate briefings, the war game itself, nor the

expenses of several thousand servicemen who performed for the civilians along

the way.

KENNEDY WAGON ANNOUNCER. . . . 711 tons of ammunition and 308 tons of

fuel.

DR. RICHARD CHAMBERLAIN. I for one am very grateful for this privilege of

seeing how the defense of the country is being organized.

DAVID CONNOR. I found it enjoyable to talk to the enlisted ranks who are

handling the weapons as we got in the tanks. I think there's been a subtle, necessary and important emphasis on talking to the manpower.

OFFICER. Of course it could carry rockets, it could substitute a rocket part

for a bomb. It has tremendous flexibility.

CIVILIAN. A lot of killpower though.

OFFICER. Oh, yes, yes.

MUDD. Civilians were shown some of the more advanced equipment and training methods. Among the ordnance the Marines displayed were their planes, their

weapons, their tanks, and, of course, their Commandant, General Leonard

Chapman.

OFFICER. Excuse me, General Chapman, this is Mr. Hoover.

General CHAPMAN. How are you sir, nice to see you.

CIVILIANS IN BOAT. Oh, we can use a kyack . . . That's right . . . Bob, you're

getting a little too enthusiastic . . . Oh, boy, we're really making time now.

ROBERT GREENHILL. I think the message I would take back is that we have a

first-class military organization led by first-class leaders and the people who
238

carry the load on the enlisted men are some of the finest people that I've been

privileged to see. I'm in the investment banking business and I travel all over the

United States and I know that for a fact.

WILLARD DOVER. I think the message is that you can be proud of your boys

in service.

MUDD. The Defense Department did not permit CBS News to film what many

regarded as the highlight of the tour. But the civilians were not shy in talking

about it.

Mr. CONNOR. At Fort Hood we all were seated in the gunner's seat of the M-60

tanks, and we fired the rifles, and we were told what excellent shots we were

and we were taken over to the recoilless rifles and fired rounds at armored personnel carriers and again told how good shots we were, and we fired grenade

launchers and drove tanks and so on . . .

Dr. CHAMBERLAIN. We fired tank cannon and recoilless rifles, machine guns . . .

Mr. CONNOR. My gun jammed while I was shooting it and I thought, Oh my

God, what a great situation to be in were someone moving on me.

Dr. CHAMBERLAIN. It was fun to actually get your finger on the trigger of

some of the things like the recoilless weapons that most of us have heard about

but hadn't actually. seen.

Mr. GREENHILL. There is no substitute for hands-on experience.

MUDD. The Defense Department says these demonstrations are merely training exercises for war. War, however, is not fought in front of a grandstand.

MARINE ANNOUNCER. Let me remind you that the speed and flexibility which

YOU have seen today and the maneuverability and coordination of the supporting

forces is not a demonstration. It Is the stock in trade of the United States Marine

Corps.

Mr. GREENHILL. One of the things I can personally see from this tour is that

a lot of the statements that for example Mr. Fulbright and Mr. Proxmire make

are absolutely baseless.

Dr. CHAMBERLAIN. I just wish that all the American people could see what

we've seen. I think we'd find much less of this carping at the military and we'd

find a lot more understanding.

Mr. DOVER. I think that one part of this tour is that you won't find a George

Romney statement about being brainwashed.

Dr. OLAV SOLA. As we proceeded through numerous phases where we were

personally involved, my opinion has changed 180 degrees.

ANNOUNCER. CBS REPORTS: "The Selling of the Pentagon" will continue in

a moment.

(Announcement)

ANNOUNCER. "The Selling of the Pentagon" continues.

JACK WEBB. (Film: "A Day in Vietnam"). It seems ironic, that while our

finest young men are fighting half-way across the world, other young men and

women safe at home, openly advocate abandonment of Vietnam to communism.

Perhaps they really don't know what this war is all about.

MUDD. With scenes of war protesters tinted red for emphasis, the Defense

Department introduces a film on Vietnam narrated by television star Jack Webb.

Over 300 films a year are made by the Pentagon. Most of them are meant originally for troop information, but a large number is released for public showing.

It is widely known that the Defense Department often helps sympathetic Hollywood producers who need troop support for their war movies. What has received

far less attention is that the Pentagon itself spends over $12 million a year on its

own pictures.

The annual cost of a single Army series, "The Big Picture," is $900,000 and

the overall Army film budget is more than $61/2 million a year. During the 1960's,

at least 52 million Americans saw Pentagon motion pictures, 45,000 public gatherings viewed them and at least 356 commercial and educational television stations

have presented them as part of their public service broadcast time. Facts and information—not opinions and attitudes—are supposed to be the ingredients of

Defense Department films. An official Pentagon directive states: "Propaganda

has no place in Defense Department Public Information programs." In preparing

this broadcast we looked only at products of the last decade—all made after the

thaw in cold war politics. Well-known journalists and movie stars often serve

as narrators for the films as these excerpts show.

ROBERT STACK. Hi, I'm Bob Stack. As you may know, one of my hobbies is

collecting guns. I've hunted on and off all my life from California to Mexico to
239

safaris in Africa. Speaking of guns and faraway places, I've just come back from

a trip to Vietnam where guns are used for an entirely different purpose.

JOHN WAYNE. The Defense Department has asked me . . .

MUDD. The Pentagon helped John Wayne make "The Green Berets." John

Wayne helped the Pentagon make this film in Vietnam. Over a thousand prints

are in circulation.

SOLDIER TALKING TO WAYNE. In Vietnam, revolution is a double-edged word.

The enemy uses it—it's what they call the "aggressive war" they're using against

people over here.

WAYNE. That's the story and there's nothing mysterious about the kind of

revolution the enemy has in mind. It's the same thing we've seen in many parts

of the world ever since the Communist revolution fifty years ago. Murder, assassination, terror, and over here they've killed over 20 thousand civilian leaders.

And it's these same brave people, who have had the will and the guts to conduct

their own revolution, a real revolution for the betterment of their people.

MUDD. Not only movie stars have aided Pentagon propaganda. For patriotic

reasons, newsmen such as Edward R. Murrow, Lowell Thomas and John Daly

often volunteered their talents during World War II and the cold war. The

Pentagon has used many journalists to carry its message including, some years

ago, two of the best-known broadcasters.

CHET HUNTLEY (Film: "The American Navy in Vietnam"). I'm Chet Huntley.

To most of us, this is the United States Navy—the aircraft carrier, the cruiser

and destroyer. The modern deepwater navy, extending American strength across

the oceans of the world.

This is the American Navy in Vietnam, moving quickly where and when needed,

displaying the flexibility of modern sea power, controlling the seas, extending its

influence on land, and holding superiority in the air—a three-way force for peace,

here to meet aggression at any spot on the globe.

MUDD. "The Eagle's Talon," made in 1962, narrated by Walter Cronkite deals

with America's response to Communism.

WALTER CRONKITE. Starting in World War II, the aggressive Communist tide

has spread in Europe and Asia to engulf its neighbors. Communist China even

now has plans to dominate Asia by mass murder, destroying ancient civilizations.

Right next door is the nation we freed in 1898—Cuba. A Communist tyranny

holds sway and whiskers do not hide the naked face of dictatorship. Our army

is face to face with Communism around the world. To meet immediate threats

on any front we must build up our land forces at home and overseas.

This soldier, guarding one of Asia's gateways against Soviet aggression, symbolizes the determination of free men everywhere to resist Communist expansion

by force of arms.

MUDD. On a policy level, the Pentagon says it has discarded the rhetoric of

confrontation. But city by city, public showing by public showing, the language

and symbols of the early '60's are still being widely distributed in the '70's. Here

in Elmendorf, Texas this month, a Bantist congregation attends a Pentagon

film on Communism made in 1962. Even though the expressed policy of the United

States is negotiation and not confrontation, even though Walter Cronkite and

Chet Huntley may now disagree with the intent of the films they narrated, even

though the roles of journalist and government spokesman are incompatible, the

films grind on and on.

A Pentagon film often contains a map that seems to, be bleeding. The blood

turns out to be the spread of international Communism. Interpretations of communism and assessments of Communist intent are significant themes in Defense

Department films. In "Red Chinese Battle Plan," an anonymous Pentagon narrator describes a foreign policy bent on world conquest.

PENTAGON FILM NARRATOR. It is a blueprint for world revolution. Red China's

battle plan—divide and encircle; conquer and enslave.

MUDD. In an excerpt from a film called "Road to the Wall," the Pentagon has

James Cagney tell of a Communist plan that encompasses even more than the

world.

CAGNEY. The Wall is a solid fact. It stands--and will stand—wherever the

road of world Communism leads. Someday, according, to its builders, it will surround not merely the world, but the moon, the stars, outer space, the universe!

1VIunn. In what is perhaps the Pentagon's most ambitious film, "Red Nightmare," Jack Webb presents a Russian scheme to crush American freedom.
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FIRST RUSSIAN SOLDIER. Americans! They have too many freedoms.

SECOND RUSSIAN SOLDIER. That is another thing you must remember, Comrade. One day it will be your mission to destroy those bourgeois capitalist

freedoms!

WEBB. Frightening, isn't it?

MUDD. The hero of Webb's film, a latheworker named Jerry Donovan, dreams

that his town is invaded by Communists. With remarkable ease, they quickly

subvert everyone except Donovan himself, who, listens with shock to a Commissar's speech.

. COMMISSAR. When the moral fibre of the United States weakens, and the economy collapses under the pressures of competitive coexistence, it will be your re

sponsibility, Comrades, to purge the minds of the reactionary Americans, so

that they will welcome the enlightened Soviet system and conform without resistance to the dictatorship of the proletariat.

DONOVAN (To Soldier). Hey! What do you think you're doing?

MUDD. When Donovan returns home, he finds his own daughter about to leave

for a commune.

DAUGHTER. It's true, Daddy. I did volunteer for farm work.

DONOVAN. Linda, why?

DAUGHTER. The party convinced me that I should free myself of the lingering

bourgeois influence of family life. I am ready. Do not interfere. It is for my own

good.

RUSSIAN SOLDIER. And Comrade Donovan, do not think that your deviationist

remarks will be overlooked. They will be reported to the proper authorities.

JUDGE. Comrade Donovan, you are accused of the following crimes against the

state: subversion, deviationism and treason.

MUDD. Nine hundred prints of "Red Nightmare" are currently in circulation.

It was first released in 1962, reissued in 1965. The film was made for the Armed

Forces Directorate on Information.

JUDGE. As an ugly remnant of the diseased bourgeois class, you must be eradicated before the contagion can spread.

DONOVAN. Believe me, you Communists can't keep fooling the entire world.

You can't even keep fooling your own people. Because the news about Communism is getting around—that it's only another word for slavery! (SOLDIER

FIRES THE GUN . . .)

WEBB. Don't worry, Jerry. That bullet will never reach you, because it's time

to bring you back from your red nightmare.

MUDD. The Defense Department believes that one of the best ways to save

Americans from a red nightmare that comes true is with films like these. Although the Pentagon labels them informational, these films contain a high proportion of propaganda, as well as an obsession with monolithic Communism.

Tax money financed all of them, and they have been distributed during the

Kennedy, Johnson and Nixon Administrations. It has been more than a decade

since the national policy of peaceful coexistence replaced the harsher rhetoric

of early cold war years. But to the filmmakers at the Pentagon, with at least

$12 million a year to spend, 1946 seems to have lasted a whole generation.

(Announcement)

ANNOUNCER. "The Selling of the Pentagon" continues.

MUDD. The Pentagon in Washington is the command post of a military establishment with a multitude of ways to get its message across to the public. Many

millions of Americans are reached by Defense Department displays, tours and

motion pictures. But the widest, most penetrating of all contacts the Pentagon

has with the public is through the media—newspapers, magazines, radio and

television. Once each day, the press and the Pentagon have a formal confrontation.

JERRY FRIEDHEIM. Dr. Foster has discussed the three different kinds of 55-11S.

REPORTER. These are MRVs, not MIRVs?

FRIEDHEIM. That's correct, these are MRV, not MIRV. We're not able to

discuss 

MUDD. Every morning at 11 :00 o'clock, in pursuit of Defense Department

news, Pentagon reporters get a crack at a careful and respected adversary,

Deputy Assistant Secretary of Defense Jerry Friedheim. He does not, of course,

tell all he knows; he wouldn't have his job long if he did.

FRIEDHEIM. I can't discuss that at all.

NEWSMAN. What about the size of the warhead?

4
241

FRIEDHEIM. I just don't have anything I can give you on that. We'll pursue that

question.

ROBERT GORALSKI, NBC NEWS. When did you last have three carriers on

station in the Med ?

FRIEDHEIM. We'll have to check back and find that date for you.

NEWSMAN. Has the Guam chopped to the Sixth Fleet?

FRIEDHEIM. Negative. It has not.

BOB SCHIEFFER, CBS NEWS. Would she normally just be going to replace one

of them; is that it?

FRIEDHEIM. That has been the normal operations in the past. We've observed

some nineteen Soviet combatant vessels there in recent days. The Sixth Fleet

strength is roughly comparable, slightly larger.

NEWSMAN. Slightly larger?

FRIEDHEIM. Correa.

JACK TOLBERT. It's extremely difficult for a Pentagon reporter, even a regular

to establish sources outside the public affairs arm.

MUDD. Former Public Information Officer Jack Tolbert was an Air Force Major

who worked with the press at many military bases for 12 years. He believes that

the Defense Department confronts reporters with numerous obstacles.

TOLBERT. The Department of Defense has so many avenues of getting its story

across, around, and through and over and under the media, that I'm not in fact

sure that even if every reporter that covered the Pentagon was a hard-nosed

reporter, that we still wouldn't get the story through.

MUDD. The vastness of the Defense establishment confronts a reporter with an

almost impossibly complex task. Pentagon stories develop in many other ways

besides formal briefings, but the sheer size of the building itself remains bewildering. Often it is impossible to get to a news story, even when the story does

not involve national security, until the Pentagon chooses to announce it.

Going into and out of the 30,000 Pentagon offices each day are 200,000 phone

calls and 129,000 pieces of mail. But very little of this communicating is done

with the press. Although the Department of Defense is the biggest business in

America, over 95 percent of the news bureaus in Washington do not even assign

a reporter regularly to the Pentagon. More newsmen cover the pennant race than

the arms race.

We asked the man in charge of all Pentagon public relations, Assistant Secretary of Defense Daniel Henkin, if he thought the press did a good job covering

the Defense Department.

HENKIN. I believe that it does. From time to time of course it gives me some

headaches and I give the press some headaches. We understand that—We act

professionally, as a professional relationship, not only with the Pentagon press

and other members of the Washington news corps, but with newsmen who cover

military activities around the world.

MUDD. What about your public displays of military equipment at state fairs

and shopping centers—what purpose does that serve?

HENKIN. Well, I think it serves the purpose of informing the public about their

Armed Forces. I believe that the American public has a right to request information about the Armed Forces, to have speakers come before them, to ask questions, and to understand the need for our Armed Forces, why we ask for the funds

that we do ask for, how we spend these funds, what are we doing about such

problems as drugs—and we do have a drug problem in the Armed Forces. What

are we doing about the racial problem in the Armed Forces, and we do have a

racial problem. I think the public has a valid right to ask us these questions.

MUDD. Well, is that sort of information about the drug problem you have and

the racial problem you have and the budget problems you have, is that the sort

of information that gets passed out at state fairs, by sergeants who are standing

next to rockets?

HENKIN. No, I wouldn't limit that to sergeants standing next to any kind of

exhibit. Now there are those who contend that this is propaganda. I don't—do not

agree with this.

MUDD. What the press wants to reveal, the Defense Department often wants

to conceal. We asked the Washington Past's military specialist, George Wilson,

who should be prouder of Pentagon press coverage, the press or the Pentagon.

WILSON. The Pentagon, by virtue of its overwhelming troops in this area, has

done better in propagandizing as a whole than the press has done on exposing,

I don't fault the digging reporters and there are several. What I fault is the lack

of demand from the editors, both of TV and of newspapers generally.
242

MUDD. How hard is it, Mr. Wilson, for a single reporter at the Pentagon to discover the truth when the Pentagon doesn't want the truth to be known?

WILSON. It's difficult. They can always pull out the secrecy stamp and say it's against the national interest to give you the full explanation for what we

did, but you'll just have to trust Big Daddy.

MUDD. Can't a case be made, Mr. Wilson, from the standpoint of national

security, to prohibit you from printing in your paper information that the enemy

wants to know?

WILSON. It certainly can. A case can be made, but my counter to that is that

if it's going to be—if the weapon is going to be described in public as it was in

1969 and 1970, along with the sales job to get the anti-ballistic missile defense

approved, it should be described accurately. The point here is that becatpe the

technology is reachable, that there will always be the pressure to build it. Weapons are inexorable and they're imperious, and only public challenges and public

resistance can keep technology from running us right onto the road of Armageddon, and I think that points up why more coverage of the Pentagon is desirable.

Editors should have a larger appetite for these weapons because they're not

just nuts and bolts; they often dictate the largest policy decisions in the world

today.

RADIO VOICE (hometown news center). This is Army Specialist Gene Canfield

reporting from Pleiku, Republic of Vietnam . . .

MUDD. The Armed Forces do not have to wait for radio, television and newspapers to come to them. They have their own way of reaching the media. At the

Army's Hometown News Center in Kansas City, a blizzard of press releases

is turned out in all seasons. Each year, 12,000 radio and television tapes are

mailed to 2700 radio stations and 546 television stations. Over two million printed

releases are sent to 6,500 daily and weekly newspapers. In these releases, medals,

promotions and re-assignments are emphasized. While transmitting legitimate

information about servicemen, the News Center also functions as a publicity

agency for American forces abroad. The only news from the Center is good news.

The Center is commanded by Colonel Richard Stewart, who feels the operation

is helpful to the Army.

Colonel STEWART. This is another way of seeing your Army in action and it's

even more meaningful because the people can relate to this particular soldier.

This is not just an exercise or combat operation or something of that nature

but this here is Sergeant Willy Tones.

TOLBERT. There are hundreds and thousands of weeklies and small dailies in

this country that live on what we call the hometown release, where the Army,

Navy and Air Force maintain hometown news release centers, and are just

spewing this stuff into these newspapers who accept it willingly and who print it.

STEWART. They have said time and time again when I've talked to them they've

said "Keep it coming," in effect, words like that, "keep it coming."

TOLBERT. What the press—and this is the whole press, the community press

which is extremely important to this country, is giving a free ride to a military

story.

Representative EDWARD HEBERT. I'm one of those who believes that the most

vicious instrument in America today is network television.

MUDD. Using sympathetic Congressmen, the Pentagon tries to counter what

it regards as the anti-military tilt of network reporting. War heroes are made

available for the taped home district TV reports from pro-Pentagon politicians.

Here Representative F. Edward Hebert of Louisiana asks Major James Rowe,

a Green Beret and former POW, who keeps the Viet Cong.fighting.

Major ROWE. The support that the VC receives from the United States is the

only thing that keeps them fighting.

MUDD. Later, Congressman Hebert, who is the new chairman of the House

Armed Services Committee, asks MaJor Rowe for his reaction to a peace rally.

ROWE. I walked up and I heard one of the speakers yelling, "Down with imperialism, down with capitalism, down with the oppressive leadership in Washington. Power to the people." I heard the same thing from the Viet Cong, except

there it was in Vietnamese and here it was In English. I looked around the

crowd—I walked through the crowd, and I saw some VC flags flying from the

flagpole of the Washington monument. I saw American flags with VC flags flying

over the top of them. I saw American flags with the stars removed and a peace

symbol superimposed. I saw the red flag with a black peace symbol on it and then
243

I heard one of my Senators say that "We are here because we cherish our flag."

And the only thing I could think of in answer is what flag does he cherish?

HE.BERT. Let me congratulate you, please, sir. It's an honor to have had you

on this program with me, and I only wish to God we could have more people

wearing the uniform privileged to speak as you've spoken, because the silent

majority will and must be heard.

MUDD. The war is covered extensively not only by the civilian press but also

by the Defense Department's own camera crews in Vietnam. Their product is distributed to American TV stations and networks. This is a soccer match played by

North Vietnamese prisoners of war and filmed by the Defense Department. It is

intended to supplement regular network news coverage. But the Defense Department can hardly be said to be a disinterested observer in Vietnam. Recently,

there have been charges that some of the Pentagon's footage was staged. In fact,

the cameraman who filmed this soccer game told CBS News that the prisoners

had never been permitted to play soccer before but were trotted out for this

match when his crew arrived. The cameraman, former Air Force Sergeant

Thomas Demitor, spoke about his filming experience shortly before leaving the

service after 16 years.

DEMITOR. In many stories that were filmed in Vietnam, with my team, we

staged a number of stories of the Vietnamese. We were propagandizing the war

and an example of it was a story titled "U.S. and South Vietnamese forces patrol enemy infiltration routes." We went out with the Vietnamese in the Riverine

patrol, went down the river until we found an area that was suitable for our

landing. Because I knew it wasn't an actual combat situation I had no fear—I

was off the boat on the land before the Vietnamese infantry came up, so that we

could get a shot as the boats came onto the shore. They proceeded inland about

three quarters of a mile or half a mile while we were getting shots of them

running through the rice paddies. They didn't fire any shots. There were no traces

of Viet Cong.

We were told, when we thought we had a sufficient amount of footage exposed,

to tell the Vietnamese and they would turn around. When someone turns around

and asks you "Well, do you have enough film?" and you say, "Yes," then it is

definitely staging.

MUDD. Later, while filming the same story, Sergeant Demitor shot real combat

footage involving American troops.

DEmrroR. In the final release, we see none of the actual combat footage of the

Americans. We see all of the staged footage of the Vietnamese, and it would lead

someone to believe that the Vietnamese were doing the majority of the work. The

staged action got in. The actual action did not get in.

HENKIN. We are trying our best to provide information. There undoubtedly

have been times when certain actions have been staged. I think this is true of

all TV news coverage; after all this interview here is being staged.

MUDD. How so?

HENKIN. Well, props were set up, arrangements were made. You and I did not

just walk into this room cold. Arrangements were made for it.

Mum). Well, we wanted to film it in your office but your people said, "Let's go

into the studio," so—We didn't stage it.

ARMY BRIEFER. We are conducting limited-duration protective reaction air

strikes . . .

MUDD. Defense Department information machinery is well established in Vietnam, where a special language has developed that takes some time to learn.

"Protective reaction" means the United States resumed the bombing of North

Vietnam. "Selective ordnance" means napalm. "Defoliation" means nothing will

grow there any more. A "civilian irregular defense group volunteer" is a mercenary. "Population resettlement" means getting villagers out of their villages,

and "Military Assistance Command Daily Press Briefing" means this scene

right here, which is popularly known among newsmen in Saigon as the Five

O'clock Follies. The most popular phrase at these sessions, however, needs no

explanation.

ARMY BRIEFER. No comment. Nothing further to say.

FIRST REPORTER. Maybe you can answer my question.

ARMY BRIEFER. I have nothing further to add to the statement that has been

read. I repeat I have no comment.

SECOND REPORTER. Why can't you comment?
244

MUDD. Often the press is an unwitting partner in its own deception. Former Information Officer Tolbert once took great pride in utilizing the media. He's not

so proud of the record anymore.

TOLBERT. A network was coming over to cover and do a documentary on the air

war over North Vietnam. They were going to film it out of Danang, where I was

the information officer. So in preparing for them we tried to pick out the most

articulate, the best-looking pilots that we could, to be able to describe through

their eyes what the air war was all about. We briefed the pilots so that they

would understand that we were trying to present our views in a one-voice concept;

we didn't want divergent views coming from a variety of the different pilots that

might raise questions concerning whether they understood, or whether they were

satisfied with the way the air war in the North was being fought.

MUDD. And the cast of characters that you made available to those network men

was such that they never heard any dissension or criticism about the bombing

mission?

TOLBERT. No, no, never. You know, being an insider, knowing fully what was

going on, if I was absolutely candid with them, and opened all of our closets to

them, yes, they would have come out with a lot more balanced report. I could

have helped them do that.

MUDD. What was the result of that network team's journalistic efforts?

TOLBERT. Frankly, it was just great. It represented the pilots, it represented the

way we conceived that the air war in the North was being fought by very professional people, and it was as good as if we had done it ourselves.

MUDD. Well, I'm duty-bound to ask, I've got to ask you, of course, which network

it was. Will you tell me?

TOLBERT. Yes, yes, I will.

MUDD. Which one was it?

TOLBERT. It was CBS.

MUDD. Well, taking that incident you had with CBS and applying it, Mr. Tolbert,

to your 12 years as a public information officer, what effect do you think incidents

like that have on a democratic society which is supposed to enjoy a free press?

TOLBERT. I feel that the military information arm is so vast, has been able to

become so pervasive by the variety and the amounts and the way and the sheer

numbers it's able to present its viewpoint to the American people, I think this

attitude it was able to develop allowed Vietnam to happen. Had we not been able

to convince the American people prior to Vietnam that a military solution was a

correct solution, without a doubt and not to be questioned, we couldn't have had

a Vietnam. I feel that if we allow this pervasiveness to continue, that frankly it

Could lead us to another Vietnam.

MUDD. We have reported tonight only a fraction of the total public relations

apparatus belonging to the Pentagon and supported by taxpayers. Indeed, the

news restrictions on the current invasion of Laos raise the question whether the

public's right to know is being served or thwarted.

On this broadcast we have seen violence made glamorous, expensive weapons

advertised as if they were automobiles, biased opinions presented as straight

facts. Defending the country not just with arms but also with ideology, Pentagon propaganda insists on America's role as the cop on every beat in the world.

Not only the public but the press as well has been beguiled, including at times,

ourselves at CBS News. This propaganda barrage is the creation of a runaway

bureaucracy that frustrates attempts to control it.

Last November 6, President Nixon sent this memorandum to executive agencies, criticizing what he called self-serving and wasteful public relations efforts.

He directed an end to what he described as "inappropriate promotional activities." The President specifically ordered, in his words, a curtailment of "broadcasting, advertising, exhibits and films."

Just since the memo was written the Army's Golden Knights, a parachute

team, have performed for the public in Nevada, California and North Carolina.

Other Army exhibits have travelled to 59 different locations. Air Force displays,

like this Hound Dog-Quail missile, have appeared in at least 36 shopping malls

and municipal centers since the memo was written.

We went back to the Pentagon and asked what effect the Presidential directive would have. We were told there will be cuts in personnel, not activities.

There may be some disagreement, of course, over just what constitutes an "inappropriate promotional activity," but to date not a single activity shown on
245

this broadcast has been eliminated. Tomorrow morning, according to Defense

Department schedules, there will be an Army show pushing the ABM in Mountain View, California; an Air Force missile will turn up in Houston on Friday;

the Pentagon's travelling colonels will be in Hampton, Virginia, March 8; and

next week fifth graders at the Hill Elementary School in Davidson, Michigan,

will get to see the Navy's propaganda film on Vietnam.

This is Roger Mudd for CBS REPORTS.

THE SELLING OF THE PENTAGON—A POSTSCRIPT AS BROADCAST OVER THE CBS

TELEVISION NETWORK, TUESDAY, MARCH 23, 1971, 11 :00-11 :15 PM, EST

(Produced by CBS News—Executive producer, Ernest Leiser)

ANNOUNCER. What follows is comment on "The Selling of the Pentagon." Here

again is Roger Mudd.

MUDD. The next twenty minutes are by way of postscript to the broadcast

you've just seen. The reaction to the original presentation of "The Selling of

the Pentagon" on CBS, February 23 was immediate and nationwide. Phone calls,

mail and telegram responses were unusually high, predominantly favorable.

Reactions of the professional television critics were even more so.

However, there was also a good deal of adverse criticism, much of it sharp

and angry, and some of it from high places.

Since we decided, in the public interest, th rebroadcast "The Selling of the

Pentagon," we have decided it would be appropriate, too, to broadcast and

rebroadcast the most notable official criticism and, briefly, the CBS response to it.

The most prominent critics have been Vice President Agnew, Secretary of

Defense Melvin Laird and F. Edward Hebert, Chairman of the House Armed

Services Committee. Bob Schleifer interviewed Mir. Hebert on the CBS Morning

News.

SCHIEFFER. Mr. Chairman, what did you think of the program, "The Selling

of the Pentagon"?

HEBERT. I haven't got the time to tell you. I think it was the most horrible

thing I've seen in years. The most—the greatest disservice to the military I've

ever seen on television, and I've seen some pretty bad stuff.

SCHIEFFER. Why do you think it was so bad?

HEBERT. Well, it's very easy to tell why it was so bad. It was, I think, one of

the most professional hatchet jobs, and a splendid professional hatchet job.

For instance—this in an old technique that you know as well as I know—this

is nothing new to us, but to the unsuspecting viewer it's something that they

accept as being fact.

SCHIEFFER. Well, now, it might be new to me, so you just go right ahead.

HEBERT. No, I'm sure—no, no, you're well-experienced. I didn't say you're

guilty, I said you're experienced. Now, what they did in the full basis of the

film, they took clips of certain things that happened, which were facts and did

happen. O.K. Now that, standing alone, is a factual thing. But the script that's

in the commentator's hands absolutely destroys what has just been seen, by the

use of nice little words.

For instance, there's a fire power demonstration, as I recall it, or something.

And it's a terrific looking fire power thing and it says, "That's the new way our

wars are being fought"—I'm recalling from memory—"That's the way our wars

are being fought but not in front of grandstands." Why, that little word, that's

a very cute word. The use of these little words and innuendoes are the things

that are the vicious, the devious things. And that's what I objected to.

For instance, they presented me—in the clip on me—that clip was obtained

under false representation from my office here, it was obtained under the representation it was to be used as a POW documentary. And it turns up here, in this

film, as though the Pentagon had used me as a patsy to take major role—As a

matter of fact, the Pentagon didn't even know this film was being made. The

film was part of a show—and I use the word "show" advisedly—for presentation

of a bimonthly program that I've had in New Orleans over WWL for years and

years and years—and WWL pays for it. The Pentagon don't pay for it. The

station pays for it, as a public service. And they extracted this to make it look—

and the words they use there, the commentator reading the script handed to him,

says, in effect—again, I can't quote verbatim because I don't have the script in

front of me, but he does say this: "Then in turn the Pentagon gets pro-Pentagon
246

politicians and makes war heroes available to them." Now, this is the damndest

lie and the damndest misrepresentation of a fact that I've ever seen. And it is

a misrepresentation. That's what I object to. And this is through—practically

through the whole film.

SCHIEFFER. Well, is there a propaganda machine over there these days, Mr.

Chairman? Is there a Pentagon propaganda machine? You said you found one

one time. Is it still operating?

THBERT. I think the Pentagon is trying to sell the best bill of goods it can.

And what do you want them to sell, communism? Do you want these people to go

over there and tell you that Hanoi's right?

SCHIEFFER. Mr. Chairman, you're not trying to tell me, are you, that this

documentary, the making of this documentary, was an un-American act that

was performed, this documentary, do you?

HgBERT. Wittingly or unwittingly, however done, consciously or unconsciously,

deliberately or not deliberately, it is one of the most un-American things I've

seen on a screen—on a tube. I'm not saying they did this deliberately. I can't

read a man's conscience. I can't know what's in a man's mind. I'm not saying

that. All I can do is judge the product. And the product was a non-American

activity. That's what I'm saying.

MUDD. Secretary of Defense Laird was also critical. He, too, was interviewed

on the CBS Morning News. The reporters were Pentagon Correspondent Schieffer

and Bernard Kalb.

KALB. The CBS News documentary, "The Selling of the Pentagon"—did you

see that, by the way?

LAIRD. Yes, I did.

KALB. Well, we know that Vice President Agnew has called it "disreputable"

and Congressman Hebert has called it "un-American." Do you share those reviews of the documentary, sir?

LAIRD. Well. I believe that there probably could have been a little more professionalism shown in putting the show together. I think the comments that have

been made by the Department of Defense in answering Congressional inquiries

are correct. And those comments are available to you and available to your listeners should they write us. They're very detailed and factual in answer to Congressional questions. And any viewer that would like to have these facts, all they

need do is address me at the Pentagon and I will see that the replies of Assistant

Secretary of Defense Dan Henkin are made available to you on the comments

in answer to Congressional inquiries about this particular show.

HART. "The Selling of the President—of the Pentagon" will be rebroadcast on

March 23rd. We have—

LAIRD. Well, we've had a tremendous response from it and we've had great

support. It's increased our support in the Congress many times. We don't look for

any close votes this year because this particular program has indeed helped us

because of the very unprofessional type of work that was done in quoting a

colonel out of context completely. He was using a quotation and the words were

put in his mouth.

HART. MT. Secretary

LAIRD. I believe I have to protect our military men, and I think it was a misuse of certain film clips to use him in that way.

MUDD. The most highly-placed critic has been the Vice President. He has levelled five different attacks on the broadcast, the most widely-reported in Boston

last Thursday night.

AGNEW. Little less than a month ago, on the evening of February 23, 1971 CBS

Television broadcast a one-hour documentary entitled, "The Selling of the Pentagon." The substance of this documentary was that the Department of Defense is

subjecting the American people to, and I quote: "A propaganda barrage. . . the

creation of a runaway bureaucracy that frustrates attempts to control it."

"Nothing is more essential to a democracy," read the CBS script, "than the

free flow of information. Misinformation, distortion and propaganda all interrupt

that flow."

No one can disagree with the latter statement, but just as he who enters a

court of equity should come with clean hands, the news organization that makes

such charges should itself be free of any taint of misinformation, distortion and

propaganda in its own operations. In this regard, it is the CBS Television Network, not the Department of Defense, that leaves much to be desired in terms of

"the free flow of information."
247

MUDD. In his speech last Thursday, the Vice President did not specify any

"misinformation, distortion and propaganda" he had found in "The Selling of

the Pentagon." He did, however, call it, quote, "a subtle but vicious broadside

against the nation's defense establishment." And he did say it, and an earlier

CBS News documentary, "Hunger in America," which he also criticized, were

written by the same person. And he noted that the executive producer of "The

Selling of the Pentagon" was also the executive producer of another CBS News

project, a documentary that was never completed or broadcast.

AGNEW. A second and even more startling case history of a documentary in the

making involves the participation of CBS personnel in an aborted effort to film

a 1966 invasion of Haiti. The network's role in this effort, called "Project Nassau," was investigated last year by the Special Subcommittee on Investigations

of the House of Representatives Commerce Committee. Here again, let the report

of the investigative body tell the story. And I quote from that report: "The activities preparatory to 'Project Nassau' involved more than the filming of sham

events, manipulation of sound tracks, and the like. Underlying the whole activity

was the earnest endeavor by a group of dangerous individuals to subvert the

laws of the United States. Had it been successful the conspiracy would have produced a crisis for American foreign policy in the sensitive Caribbean area. Six

men have now been convicted," said the House of Representatives Subcommittee,

"for their part in this conspiracy."

Continuing with the House Subcommittee report on CBS's participation in

"Project Nassau" I quote again from the House report: "CBS funds were provided for the leasing of a 67-foot schooner which was to be utilized for the

invasion force: expenses were reimbursed for the transportation of weapons

which were to be subsequently used by the conspirators; various payments were

made to . . . the leader of the invasion conspiracy, with full knowledge of his

identity and his criminal intentions. If these acts did not actually involve the

network in the conspiracy to violate the U.S. Neutrality Act, they came dangerously close to doing so."

Concerning such illegal activities, the House Subcommittee, in the course of

its investigation, made public a CBS policy memorandum which, to quote from

the views of a bi-partisan group of Subcommittee members "represents a level

of irresponsibility which should no longer be tolerated if the public interest is

to be served."

MUDD. Mr. Agnew was asked about his criticism of CBS at a news conference

in Boston the next morning, and he was more specific in his attacks on "The

Selling of the Pentagon."

AGNEW. With regard to "The Selling of the Pentagon," it's important to note

that there was quite a bit of cut-and-paste done in that documentary, where the

speech of the Colonel, for example, was—portions of that were extrapolated that

occurred during possibly a half an hour talk and run together as though they—

the sentences followed one another. It's also important to note that the Defense

Department asked a chance to come on and actively challenge the accuracy of

parts of that documentary. There's never been any allowance of that by the

network. (Interruption) Let me just finish this, 'cause I -want to make this very

clear. Intimidation? No. I have no thoughts of intimidation. I have no thoughts

of asking for stronger laws to see that any prosecutions would take place. My

purpose was simply to tell the American people and to show them through uncontroverted evidence based on substantial and complete investigation that they

cannot rely on CBS documentaries for facts.

Question. Doesn't this kind of attack tend to have a chilling effect on the enterprise of stations who—which are licensees?

AGNEW. This kind of documentary, showing alleged facts which are untrue,

tends to have a chilling effect on me when I consider how may Americans look

at these documentaries credulously, who believe implicitly and actively in what

they say. And the thing that really distresses me about the documentaries and

about CBS's action on this documentary, and about, yes, to some extent the other

news media's refusal to properly highlight the factual conclusions of the House

Subcommittee, and other people who commented adversely on these inaccuracies,

is that they're buried: nobody hears about them. There's a great reluctance to

criticize the media by another organ of the media which I assume is understandable. But there is no introspection on the part of CBS and Mr. Stanton

has yet, in any case, to get up and forthrightly admit that he was wrong.
248

Question. One man's cut-and-paste might be called another man's editing.

Can you cite to us any specific inaccuracy or attempt to mislead in the film

"Selling of the Pentagon"?

AGNEW. I could. I'm not going to for this reason. The Defense Department

has asked to have a chance to document these inaccuracies before the American

public, I think it's entitled to that chance. I've already given you one instance

of how the words of a Colonel were run together as though it were a continuous

thought . . . and that really wasn't so. I can give you one more off the top of

my head. There was a quote by one of the speakers for the Pentagon, a Colonel,

the words were something to this effect. I don't think this is the accurate

phrasing, but the words were to the effect that if Laos, that if South Vietnamese

went Communist, Laos would of necessity go Communist, too. The makers of

the documentary let those words come out as though they were uttered, conceived and in every respect the property of the Colonel who made the statement,

whereas actually he was quoting, at that point, Prime Minister Souvanna Phouma

of Laos, who made this statement himself.

Question. The intent of documentaries, sir, is a public service by national and

regional television and radio. Do you feel that by and large, sir, that they do

serve this purpose?

AGNEW. I think that there are good documentaries, yes. I can't come up with

the name of any particular one because the ones I've seen recently have been

these controversial ones that we've 'been talking about. But I do think that the

television media serve a very useful purpose in informing the public, and that's

why under no circumstances would I consider my revelations, if you want to

characterize them as that, as being for the purpose of suppressing the right of

the American people to know. But that right of the American people to know

includes the right to know when facts projected by the media are wrong.

MUDD. We have listened to rebuttal and criticism of our broadcast, and to

charges against the technique and ethics of CBS News from the Vice President,

the Secretary of Defense and the Chairman of the House Armed Services

Committee.

Here to reply is Richard Salant, President of CBS News.

SALANT. No one has refuted the essential accuracy of "The Selling of the

Pentagon." You have seen and you have heard Pentagon activities for yourselves:

the manipulation of news, the staging of events and the selling to the public of

the Pentagon's points of view. None of our critics has said that these things

didn't happen or weren't done—and so the validity of the broadcast stands

unS'eathed.

We have an answer for every one of the criticisms you've heard. Tonight,

because of time, I'll restrict myself to only a few charges.

Congressman Hebert says we got his film under false pretenses so we didn't

have permission to use it. I quote the first and last paragraph of a letter dated

July 6, 1970, from Mr. Hebert's press secretary: "I am sending to you under

separate cover the film of Congressman Hebert and Major Rowe . . . Please feel

free to use any portion of the film, as the Congressman has given his permission

to do so."

Representative Hebert says he gave us the film under the assumption that our

broadcast had to do with prisoners of war. He states it; we deny it. His own

document supports our denials.

In the course of preparing "The Selling of the Pentagon" we talked to dozens

of people on Capitol Hill and, as you've seen, in the Pentagon. They all knew

that we were doing a broadcast on military public relations because we told

them.

Another charge you heard was that we edited the statement of one of those

traveling colonels. We were supposed to have left out the fact that he quoted

Souvanna Phouma. I've examined the transcript of the Colonel's statement and it

is difficult to tell where Souvanna Phouma left off and the Colonel started. At

any rate, when we checked back to the original magazine source we found that

the Colonel was paraphrasing this statement from Souvanna Phouma in U.S.

News and World Report, November 6, 1967: "Should South Vietnam become

Communist—that is to say, should all of Vietnam become Communist—it would

be difficult for Laos to exist. The same goes for Cambodia, the same for other

countries."
249

The Colonel lifted that statement to make a Pentagon point; he embraced it

and simply used Souvanna Phouma as his authority. But the Prince said something else the Colonel omitted. In that same interview Souvanna Phouma gave a

warning about going into Laos which the Colonel did not quote: "We are all seeking a limit to the conflict. . . . therefore from a military point of view this barrier would not be effective. And from the political view, on the international

scene, the barrier would not only extend the conflict into Laos, but perhaps even

to Thailand."

In other words, the Colonel relied on the Prince when it suited him, and left

out that part which did not suit him.

To pass on to another point. Mr. Agnew cites us for financing a secret and

illegal invasion to overthrow Haiti. He alleges we came "dangerously close to

illegal activities." The answers are quite simple: We did not finance the planned

invasion. We did nothing illegal. No significant amount of money even inadvertently found its way to persons involved in the invasion plan. The Department

of Justice found no unlawful activities on the part of CBS News. And John

Davitt, Chief of the Criminal Division of the U.S. Department of Justice said,

quote: "CBS advised us of the facts, advised the Bureau of Customs that they

were there, and they were filming these episodes."

At one point the Treasury Department asked us not to withdraw from the project. But the short answer to the Vice President is that he is attacking a journalis- tic investigation that never became a broadcast about an invasion that never took

place.

The Vice President also referred to a broadcast of three years ago, "Hunger

in America." He has repeated the charge that a baby we said died of malnutri- tion did not die of this disease. We have checked and rechecked this fact. At the

time, we were told by a hospital official that the baby did die of hunger. Later,

after the broadcast, she changed her story somewhat, and new evidence came to light. There is no way, however, for the fact to be proven or disproven with cer- tainty at this point. But, in that area, at that time, and in that hospital, babies

were dying of malnutrition. And the irony of the Vice President's blast is that President Nixon said of "Hunger in America" that it "really aroused" Americans "for the first time . . . that in this rich land there is hunger."

Finally, let me sum up briefly our position regarding all these charges against

CBS News: We can refute every charge made by the gentlemen you saw a few minutes ago. We are proud of "The Selling of the Pentagon" and CBS News stands behind it. We are confident that when passions die down, it will be recog- nized as a vital contribution to the people's right to know.

ANNOUNCER. This has been a rebroadcast of "The Selling of the Pentagon,"

followed by criticisms of the broadcast and a statement from CBS News.

APPENDIX E

INTERVIEW BETWEEN DANIEL Z. HENKIN, ASSISTANT SECRETARY OF DEFENSE, AND

ROGER MUDD, COLUMBIA BROADCASTING SYSTEM

Mr. MUDD. Mr. Henkin, in a recent speech you gave here in Washington you

said that you were one of those who took unequivocal positions on the need for

a strong defense posture and the need for a strong and free press.

Could you tell me what you mean? Are the two antithetical? Do they work

at cross purposes? What is your definition? When one definition collides with

the other?

Mr. HENKIN. Quite the opposite. I don't believe they work at cross purposes.

I believe they are interrelated. I believe a strong defense in our country requires

an informed public. And the American public has the right to know about what

our armed forces are doing. I don't see any antithetical position.

Mr. MUDD. But there have been times when the national security and the free

press collide, have there not?

Mr. HENKIN. Oh, yes, there . . . in our society there are inevitable times when

the working of newsmen collecting news and the needs of the government at that

moment may be in opposition, but over the long period of time, there is, I think,

an interrelationship that is very, very vital to our society.

Mr. MUDD. But when they do collide, as you say they do on occasions, what

do you do, what is your position?

Mr. HENKIN. Well, first of all I—my responsibility is for the security of the

United States and the safety of our men and women in uniform. That is my first

responsibility. With that is my responsibility to make available to the public

through the press as much information as possible. And one must make judgments on a day-to-day basis with those criteria. Those are spelled out for us in

a statement of principles issued by Secretary Laird shortly after he assumed

office.

But it is a matter of judgment.

Mr. MUDD. Well, now, I can remember the famous quotation from one of your

predecessors, Arthur Sylvester, that the press is part of the nation's weaponry,

and when threatened by war, the government has the right to lie. Everybody

remembers that.

Phil Goulding, who was your immediate predecessor, said he regarded his job

as that of a game keeper and the press as that of a poacher. How do you view

your relationship between the press and the Pentagon?

Mr. HENKIN. Well, without regard to what any of my predecessors may or

may not have said. I feel strongly that no government official ever has the right

to lie, but I believe that every government official always has the responsibility

to protect the country. That is my view.

Mr. MUDD. Well, you mean you don't call it lying? But what do you call it?

If you are withholding or giving out--

Mr. HENKIN. Well, there are certainly a number of occasions when either

I or one of my two deputies, Mr. Friedham or Brig. Gen. Chappie James, must

respond with a "no comment", or "I can't give you that information", or "I am

sorry, I can't discuss that" in order to protect the security of the country or

the safety of our men and women. That we do. You may interpret that as withholding information. I don't. But that, again, is a matter of judgment.

The information is not made available to you at that time, but, oh, no one, at

least I would hope no one who is responsible to me, would ever tell a lie.

Mr. MUDD. But, what is your view, Mr. Henkin, of the press, and how it functions? Do you—does the press do a good job covering your department?

Mr. HENKIN. I believe that it does. From time to time, of course, it gives me

some headaches, and I give the press some headaches. We understand that.

We act professionally, there is a professional relationship, not only with the

Pentagon press but with other members of the Washington news corps, but with

newsmen who cover military activities around the world.

(251)

62-142 0-71-17
252

I—It is for them to assess not for me to assess, but my evaluation of this is

that we have a working relationship, an understanding that we make mistakes

and we do make mistakes, the press makes mistakes, but I do not believe that

there is a feeling of distrust. I think there is an understanding of the fact that

we do make mistakes and the press makes mistakes. And I think it would be a

tragic situation for our country, particularly for our national strength, if there

developed a feeling of distrust, and not a recognition that as humans we do

make mistakes.

Mr. MUDD. You don't think distrust exists?

Mr. HENKIN. It does not exist on my part. As for the press, it must make its

own assessment.

Mr. MUDD. What about, uh—what are your views of television coverage of

DOD and the war in Vietnam?

Mr. HENKIN. Well, television coverage has presented additional problems,

there's some technical problems. It takes a bit of equipment to move a television

team to a scene of action. There television news presentation requires condensation. That is just a reality. But it has brought—in my view, television has

brought to the American public more information about defense activities than

ever before. It has problems, which I think the television news industry recognizes and certainly which we recognize. With a mutual trust, I think we are

able to provide increased assistance to television people in access to the story

and I think the television news industry has an increased understanding of the

complexities of covering national defense news.

Mr. MUDD. Do you think the American TV viewer has got a good picture of the

war in Vietnam, having watched television?

Mr. HENKIN. I believe over the long run—a month, two months, six months,

a year—that the American public has received a fine understanding of the war.

And I don't include from this just the daily or hourly or evening news shows, but

when one views the total picture including some of the documentaries which

have been run, some of which have been outstanding. I believe that the public has

received an insight into the war that would not be possible through any other

medium.

Mr. MUDD. And you include in that the local stations? In their coverage?

Mr. HENKIN. Well, as to the local stations, I am not in a position to give a really

perceptive evaluation of that. I met with a number of local TV news directors

and I feel that they have not devoted as much attention to defense news on a

broad scale beyond the local story as is true comparably with newspapers. We

have discussed this. There are a number of local television station throughout

the country which have done some very fine work in covering defense news, but

not yet to the extent that newspapers throughout the country have covered defense news.

Mr. MUDD. The reason I asked, was because of a recent speech by Senator Fulbright criticizing the existence in Vietnam of four or five—I don't know the number—Defense Department film crews which turn out a—maybe seven stories a

week that are brought back here and you distribute to the local stations, or at

least offer them to everybody 

Mr. HENKIN. That is right. We offer them to everybody on an equal basis.

Mr. MUDD. Why do you do that?

Mr. HENKIN. Well, these teams were established after some discussion with

the television network people and with others. First, we felt that we had to

develop a technological capability to see if we could do it in the Armed Forces

with military people. I think we have established that we have that capability.

Secondly, there are some stories that do not lend themselves to coverage on a

spot news basis which we felt the American public had a right to be informed

about and we covered those. I think now that we have gained this knowledge,

learned a lot of technical details with regard to our own needs and those of

national and local TV that we can reduce these teams in Vietnam, particularly

as we reduce our strength there and as these reductions will be made.

But I think it is essential that the Department of Defense have the capability

to document our actions. There could be times when it might be possible only to

get a military TV team, news team, into a particular scene of action initially.

And I think it is very important that we have that capability.

And in this I have the agreement of the TV news executives with whom I spoke

about.
253

Mr. MUDD. As far as I know, uh, networks do not use DOD film do they?

Mr. HENKIN. I have seen some networks use some of our TV on film.

Mr. MUDD. But generally the DOD film production is used on local stations, is

that right?

Mr. HENKIN. Well, I am pleased that local stations do use a considerable

amount of our footage, but again I say there are a number of instances where

this footage has been used by the networks, where it so happens that one of our

teams was on the scene of a particular action that was not covered in any other

way.

Mr. MUDD. Well, now, Senator Fulbright has said and I am sure you are familiar with his comments since this is in your province, he said that there

have been instances of "staging", that almost 50 per cent of the output during a

given period of '69 was designed to make the South Vietnamese Army look more

proficient than it was and that the real purpose of—I think you called it the V

Series, Victory Series—was to propagandize the American people into thinking

the South Vietnamese were better than they really were. What is your answer

to that?

Mr. HENKIN. First, let me say that we here have studied and, of course, will

continue to study very closely any comments made by Chairman Fulbright. I

have been in communication with him and his office over a number of months

on his views with regard to these, this TV coverage. I do not believe that we

have—in fact, as we are forbidden by Secretary Laird's directive from participating in a propaganda effort. We are trying our best to provide information.

There undoubtedly have been times when certain actions have been staged. I

think this is true of all TV news coverage. After all, this interview here is being

staged, as one might say.

Mr. MUDD. HOW SO?

Mr. HENKIN. Well, props were set up, arrangements were made—I did not

just walk into this room cold; arrangements were made for it.

Mr. MUDD. Well, we wanted to film in your offices, but your people said let's

go to the studios. So, we didn't stage it.

Mr. HENKIN. No, I am not accusing you of staging it. I made no accusations

at all.

Mr. MUDD. But back to the point that Senator Fulbright made about the

propagandizing, he said that the bulk of the subjects chosen by the film crews,

and the audio-visual team over there, was to elevate the image of the South

Vietnamese.

Mr. HENKIN. Well, I think that one would have to go through all of the releases that were made and I do not believe that that contention would be proven

correct.

Mr. MUDD. Ah, 

Mr. HENKIN. Let me say that we do make mistakes and there have been times

when actions were misrepresented, but if that is true, it was a mistake, and

should not have been done.

Mr. MUDD. Did I understand you, Mr. Secretary, to say that the—that you were

reducing the number and the amount of activity on your crews?

Mr. HENKIN. In Vietnam, yes.

Mr. MUDD. And why?

Mr. HENKIN. Well, first of all, we have established—we gained the technological

knowledge of what it takes in the armed forces to staff these teams. We have

learned how to handle the copy. The material is brought back here and processed

commercially and made available on a pool basis to the TV networks and to local

stations. Secondly, we are reducing our strength in Vietnam and, as we reduce

our strength I think it is possible now to reduce significantly the number and

activity of these teams.

Mr. Mum. But the whole question of a government having film crews in the

field on any kind of story raises the question of—of putting the government in

the position of deciding which stories ought to be covered.

MT. HENKIN. I don't believe—

Mr. MUDD. Is that valid?

Mr. HENKIN. —I don't believe it is any more valid than our putting out news

releases to what we in our trade call the hard print side of the picture. I don't

think there is any great difference between putting out a printed news release

for use in newspapers than making film available for TV networks. Now if the

TV networks disagree with that they have yet to communicate with me that

disagreement.
254

Mr. MUDD. But in the case of a press release, the AP man or the Cincinnnati

Inquirer man can take your press release and dump it or rewrite it or add to it.

But in the case of a film clip it is there to use or not to use. And isn't there a

difference?

Mr. HENKIN. I don't see a difference. Perhaps you on the TV side of the

news coverage do. I don't. I think your—TV news directors have the same option,

to use it or don't use it, to come in and ask us questions about it, to amplify

it. I don't see any fundamental difference. Perhaps you on the TV news side

view it differently than other newsmen. If so, that has not been communicated

to me.

Mr. MUDD. Ah—to go on to another subject, Mr. Henkin. It has been pointed

out to me that—I've taken the last ten years—the overall budget for the Defense

Department has approximately doubled. I think—would you accept that? I think

that is about right. About double. And the budget for the Public Affairs department of the Defense Department has increased approximately tenfold. If that

is accurate, and I can't swear that it is, but if that is accurate, how do you

explain that?

Mr. HENKIN. Well, I can't attest to its accuracy either. The only thing I can

attest to are the figures in my own office. There has been an increase in public

information activities. I think there has been better accounting for what is

public information activities. I think there has also been an increase in troop

information activities, which, in the services, I am not at all responsible for

troop information. My only responsibility is for public information.

But in the services an information officer may be, and usually is, responsible

for both troop information and public information. So it is very difficult to, in

my view, obtain precise figures on what is public information and what is troop

information.

Mr. MUDD. Well, how much has your budget increased? In the last ten years?

Mr. HENKIN. Very little in my office, in the ten-year period, except as regards

pay increases which have increased substantially—pay increases, per diem increases over the years.

Mr. MUDD. But by your office, do you include audiovisual and community service and speakers bureau and all those related agencies?

Mr. HENKIN. That's right.

Mr. MUDD. That is your whole Henkin domain, if I can use that.

Mr. HENKIN. That's right.

Mr. MUDD. And it has not increased much at all?

Mr. HENKIN. The fact is it is going down; it has been going down for the last

several years. It continues to go down. This also includes—this as you call it, the

Henkin domain—also includes approximately 40 people, more than 20 per cent,

who are in the of—in the Directorate of Security Review, who review congressional testimony, who review the speeches [unintelligible] to see how much information we can make available. This office was expanded some years ago after

a—before my time here, when the Senate Armed Services Committee concluded

an investigation of certain Defense information activities and decided that the

Office of Security Review should be expanded and it was expanded, after that

action by the Senate Armed Services Committee.

Mr. MUDD. What about the community relations service, if that is the correct

title?

Mr. HENKIN. Directorate of Community Relations is the correct title.

Mr. MUDD. What is the purpose of that Mr. Henkin?

Mr. HENKIN. It is to establish and maintain liaison with national organizations throughout the country whether they be veterans organizations, labor

organizations, student organizations, to respond to their requests for information

about the Department of Defense. Thus—it is that that directive would for example maintain a liaison relationship with the organizations such as, well, let's

just say, the Air Force Association and also arrange for meetings here at the

Pentagon which we held not too long ago with the group called the "Concerned

Mothers of Massachusetts". We spent several hours with them here. That meeting was arranged by the directorate of community relations.

It also recently has focused strong attention on arranging meetings in responding to requests from student groups throughout the country. We are very much

interested in increasing our communications with students and this—these past

months, we have met here in this building and elsewhere in the country with. I
255

would say, thousands of students, in what have been very informative and rewarding sessions.

Mr. MUDD. But aside from your meetings in which you disseminate information, what about your public displays of military equipment at State Fairs

and shopping centers? What purpose does that serve?

Mr. HENKIN. Well, I think it serves the purpose of informing the public about

their armed forces. It also has the ancillary benefit, I would hope, of stimulating

interest in recruiting as we move or try to move to zero draft calls and increased

reliance on volunteers for our armed forces, I think it is very important that

the American youth have an opportunity to learn about the armed forces.

Mr. MUDD. Is a rocket or missile display on a flatbed, is that put at a state

fair by request of the State Fair people or do your various officers apply for

space?

Mr. HENKIN. No, these are—all of these are requests, made by State

Fair people and others under our directive which imposes certain restrictions.

These must be—for example, there must be no admission charge. They must be

non-profit. There must be adequate insurance provisions. There are a number

of other listed. They must be nonpolitical. We have a number of restrictions

which apply as we assess these requests.

Mr. MUDD. But there is no pressure on these field offices to place their displays at various public functions?

Mr. HENKIN. There is no pressure from my office. I cannot speak for the

entire Defense establishment. I can say there is no pressure from my office.

Mr. MUDD. I 

Mr. HENKIN. We have more requests than we can fulfill.

Mr. MUDD. You do.

Mr. HENKIN. Both for exhibits, for speakers—we just can't fulfill all the

requests we have.

Mr. MITDD. Do you regard the display of military equipment in the country

and the instant availability of military speakers at Kiwanis and Rotary and

so forth as excessively militaristic?

Mr. HENKIN. Of course I don't. If I believed that we would not have approved

these requests. I believe it is our obligation insofar as our resources permit to

respond to a request from Kiwanis or a Rotary group in a Midwestern city as

well—or any city, as well as New York or Chicago or San Francisco. I think

the people in any part of our country have a right to come to us and ask us if

we can provide a speaker, and when we can, I would hope we will.

Mr. MUDD. But criticism has been raised, Mr. Henkin, that the result, unconscious though it may be. does create in the minds of the citizen a dependence,

or an accentance of the military and what it represents, as a way to solve problems. You have heard that criticism.

Mr. HENKIN. Yes, but I—

Mr. MUDD. What do you say 

Mr. HENKIN.—I would—I would only amend your question there, Mr. Mudd.

to say in the minds of some citizens, it presents this, if I may use the word

"image." But I believe that the American public has the right to request information about the armed forces, to have speakers come before them, to ask questions, and to understand the need for our armed forces, why we ask for the

funds that we do ask for, how we spend these funds, what are we doing about

such problems as drugs—and we do have a drug problem in the armed forces—

what are we doing about the racial problem in the armed forces—and we do

have a racial problem. I think the public has a valid right to ask us these questions. Not only in the big cities but throughout the country and to the extent that

our resources permit, I believe we should respond to these requests. And also

I believe that we have an obligation to inform, discuss with the American

public the problems that we confront, problems such as the increasing Soviet

threat. Now there are those that contend that this is propaganda. I don't—do not

agree with this. There are those who contend that we do this to influence the

budget. I submit to you that, in my view at least, this is not a valid argument.

The budget for the current fiscal year was sent to Congress in February. It

has not yet passed. It probably will not pass, as you well know, covering the

Hill, until late this year, possibly early next year.

If I permitted that to be my criteria, I would be forced to suppress news, and

I am not in this job to suppress news.
256

Mr. MUDD. Well, is that sort of information about the drug problem you have

and the racial problem you have and the budget problems you have, is that the

sort of information that gets passed out at State Fairs by sergeants who are

standing next to rockets?

Mr. HENKIN. No, I didn't—wouldn't limit that to sergeants standing next to

any kind of exhibits. I knew—I thought we were discussing speeches and all.

Mr. MUDD. What I mean—what—what possible—what sort of information—

Mr. HENKIN. But I am sure that if someone at a State Fair were to ask an

officer in charge or a sergeant. We have some outstanding sergeants who can

speak to all of these subjects and we are proud of them—who would respond

and tell the public, the youth there, what we are trying to do in the armed forces

to increase equality of opportunity, as an example.

Mr. MUDD. You mentioned.

Mr. HENKIN. One might be concerned about sending our sergeants to meet

with the American public. I am not.

Mr. MUDD. I didn't mean to say that I was, I was just thinking that the display of a rocket was seen more for display than for the actual dissemination of

information.

Mr. HENKIN. Well, we find that a number of citizen groups who sponsor State

Fairs, to use that as an example, requests from time to time displays of military

hardware. Where we can provide this within our resources, we do try to do

that.

Mr. Munn. What purpose does it serve, Mr. Henkin, for the so-called VIP trips

where a base is opened up, for a display of a new weapon and you bring on a

group of businessmen and important people in a community, is that a—is that a

necessary function within a—in a democratic—

Mr. HENKIN. Well, I believe it has been an important and valuable function

since these were started in 1948 to bring together our military people and the

VIP's, as you describe them, these VIP's include college presidents, professors,

labor leaders, church leaders, business leaders, academicians, scientists, the

whole variety, the whole spectrum of American society. I think it contributes to

public understanding of our armed forces that these visits are made, and that

these people have an Opportunity to meet with our men and women in uniform.

I go back to my basic conviction and it is one that I held since I first began covering this building in the early days of—just before World War II that our national strength depends upon an informed public to a large extent. And that

which contributes to informing the public about our progress and our problems,

our successes and our failures, I think, contributes in the long run, contributes

greatly, to the strength of our country. And, I am interested in this job, in my

professional career in two things.

One is to strengthen the country, and, two, free access to what our armed

forces are doing.

Mr. MUDD. I will have to stick a knife in you right now—I'm sure it won't

hurt—

Mr. HENKIN. Make sure it won't hurt.

Mr. MUDD. I am sure it won't hurt—but you just mentioned that you were an

ex-reporter and I am prompted to ask because of that background I was curious

to know why you or your office asked me to submit a list of questions to you

ahead of time.

Mr. HENKIN. I don't know. As I recall, before we came in here, I asked you,

I believe I am quoting myself correctly, "Do you want to do this cold turkey or

do you want to discuss some of the questions you may wish to address to me—

just to save you time?" Well, I don't know what your next question is going

to be--

Mr. Munn. I know—I know you don't, but a week ago we were asked to submit

a list of questions that I was—knowing your background, I was curious—

Mr. HENKIN. In the interest of saving time, I sometimes ask newsmen who

interview others around here what they are interested in so the person can be

prepared.

Mr. Munn. It was just as simple as that?

Mr. HENKIN. Yes.

Mr. Munn. You mentioned a minute ago, Mr. Henkin, that included in your

area was the Security Review, I think you call it.

Mr. HENKIN. Yes, sir.
257

Mr. MUDD. There has been a lot of attention given to a case up on the Hill, I

think maybe six weeks ago, in which a transcript before the Foreign Relations Committee was released, made public, about our relations with the Government of South Korea, and in it there was an article published in the New York Times deleted from the hearing. In other words 

[Break in production—physical break—new start below.]

Mr. MUDD. You mentioned a moment ago, Mr. Henkin, that one of your agencies that you control, that you run, Security Review, there was a well-publicized case

a few weeks ago in which a transcript before the Senate Foreign Relations Com- mittee was made public, and deleted for reasons of security was an article or part of an article from the New York Times which circulates all over the country and abroad. And how possibly could the interests of security be served by with- holding a paragraph from a newspaper?

Mr. HENKIN. I said earlier in this interview, Mr. Mudd, that we make mistakes here. Mistakes were made. Incidentally, that transcript was shown to the staff of the Foreign Relations Committee before it was published and they raised no objection to the error that had been made, and it was put out. Obviously an article of the New York Times is not classified or in any other place.

Mr. Munn. It—it was just simply a slip there.

Mr. HENKIN. Yes, it was a slip.

Mr. MUDD. What is the general philosophy that you have as regards classifying documents? What is the criterion for classifying a document?

Mr. HENKIN. I don't classify any information. Information that is classified

comes to me, as, the person who originates it classifies it. To the best of our ability

we try to see if we can get information de-classified to be made public, and we

go through the various agencies, offices, the Office of the Secretary himself, at times, to try and get information de-classified, so that it can be made available. But I do not classify any information myself.

Mr. MUDD. Your purpose is in de-classifying it? •

Mr. HENKIN. That is correct.

Mr. MUDD. By your estimate, how much, of classified material could be de- classified right now, today, without hurting the national interests?

Mr. HENKIN. I believe a considerable amount. Secretary Laird and Deputy

Secretary Packard agree, more importantly than I, with this. We have been

trying here, of recent months, to develop a system to de-classify much more

information, and we have been able in the last—we have in the last 18 months

declassified a considerable amount of information, particularly academic research.

We are moving now to greatly expand that project, that effort, and hopefully we

will be able to announce something on this in the near future.

Mr. MUDD. Well, who are these people who keep classifying?

Mr. HENKIN. Well, you must 

Mr. MUDD. They work for Mr. Laird, don't they?

Mr. HENKIN. Well, you must remember that much information is classified

over the years there's much information, for example, about World War II that

is still classified, and we—going back 6, 8, 12 years and we believe first, that

much—a good bit of that information needs to be looked at and made available

to the newsmen, to students, to educators—to the public.

Also, there is a tendency on the part of some to overelassify today, and we are

trying to, as best we can, to make more information available. And, that is why, in recent months, we are discussing publicly certain activities of the Department

of Defense, which were not discussed publicly before. For example, our air activities in Laos. Or, another example, is the story of our prisoners of war and missing

in action. We have made much more information available about that subject

than was the ease several years ago. Yet, another is the informtion related to

chemical warfare and biological research. We are discussing this much more

openly than it was the case before, and these are just some examples.

Mr. Munn. It just occurs to me to ask you, Mr. Henkin, do you think the press

did a good job on the My Lai massacre?

Mr. HENKIN. I would not want to comment on that at all. The—this is a matter

that is still pending in the judicial process and for that reason I would decline

any comment on that.

Mr. MUDD. Well, I didn't mean to pass on the innocence. I just 

Mr. HENKIN. I know you didn't.

Mr. MUDD. —the alertness of the press 

Mr. HENKIN. I know that.
258

Mr. MUDD.—in picking up the story.

Mr. HENKIN. Well, in order to protect the interests of all individuals and the

interest of government, I feel that I should refrain from any comment on that.

Mr. MUDD. Okay.

Mr. HENKIN. And, this is a problem. Mr. Mudd, that I think that our country

needs—needs to think about, is the problem of protecting the rights of individuals,

protecting the rights of the federal, state, local government in its judicial process.

It is a very complex problem.

Mr. MUDD. Well you are as aware of the word as anyone, and that was the

phrase "credibility gap." You, I am sure, have to live with it all the time. Have

you succeeded 

Mr. HENKIN. Well fortunately, I'm hearing that word less. I am—I don't know

about others.

Mr. MUDD. Are you, are you? Well, that was my question which you anticipated.

Have you, and your people here, succeeded in closing the gap, if it ever did exist?

Mr. HENKIN. Well, again, this is an assessment that I think newsmen need to

make. We feel that we have. We feel that there is a better understanding, or I

feel I shall take the responsibility for that statement. I feel that there is a better

understanding of mutual professional responsibilities of newsmen and military

and civilian information people who work for the Department of Defense.

Mr. MUDD. Well, it occurs to me to mention this instance. If you recall, Secretary Laird has repeatedly, and you and your subordinates refer repeatedly to,

our air cover, our air support in Cambodia, as being for the purpose of

interdiction.

Mr. HENKIN. Interdiction, or harassing or in any other way interfering with the

possible flow of men and material that could jeopardize the lives of our men in

Vietnam.

Mr. MUDD. But the evidence from the free press over there is that it is much

more than just interdiction; it is in fact supplying air cover and close support for Cambodian ground troops.

Mr. HENKIN. If our air activities have the ancillary effect of assisting Cambodian ground troops, so be it. But the primary mission, the primary objective of

our air operations in Cambodia, is to interdict, thwart, harass—you choose the

word—the flow of men and material that could possibly jeopardize American

lives in South Vietnam. And this is particularly important as we continue to

withdraw additional thousands of men from Vietnam.

Mr. MUDD. Well, the word that the Department uses is this interdiction; which

doesn't quite include ground sup—air support.

Mr. HENKIN. Secretary Laird has used a number of other words to describe

our activities—to assay, interdict, harass, thwart, delay, prevent the flow of men

and material in South Vietnam. And we have said—and I repeat here—that this

--these operations may well have the effect of assisting the Cambodian forces.

If it does, it does. But the objective is to save American and Allied lives in

South Vietnam.

Mr. MUDD. The famous example was the fighting around Skun ( ?), I think,

back in August when the word most used was interdiction of air supplies to

protect South Vietnam and particularly to seaport when the actual action was

about 115 miles from the seaport. Immediately, the press and the TV picked up

that this is another example of Pentagon credibility.

Mr. HENKIN. Well, it is a two-edge sword. It is—I am particularly pleased that

we were able to make the story of our operations along the Cambodian sanctuary so available, that we made access so easy, relatively easy for newsmen.

With our—when our first troops went in, newsmen, American newsmen, newsmen from other nations, went with them. In fact, General Abrams made his own

personal plane available around midnight one evening to move some newsmen

from Saigon to the front. That is important to me, that there is this access by

some 400 newsmen give or take, which there were at any time, in Vietnam, to

the story.

I think that credibility will be judged on their report.

Mr. MUDD. What comment would you make on the presence of the military band

over there at the Cambodian border when the first withdrawals occurred of U.S.

troops from Cambodia, back into South Vietnam. That was laughed at considerably as a propaganda hoopla showboat.

Mr. HENKIN. I would make no comment on that because I just have nothing to

do—or no real, first-hand knowledge of that. But if some commanders thought it
259

might raise—up the morale of his men to be greeted by a band, I am in favor of

bands.

Mr. MUDD. Especially when they are meeting the presidential deadline to get out.

Mr. HENKIN. Well, I am in favor of bands at any time. I think it lifts our

spirits; we like to have our spirits lifted.

Mr. MUDD. I have a final question.

Thank you for your patience.

I have a final question. Why do you think, Mr. Henkin, that the military has

become fair game for every critic whether serious, well-motivated, whether carping, whether unreasoned? Why is that way now?

It does represent a change in our whole way of thinking, does it not? As a

nation?

Mr. HENKIN. I don't believe that it represents a total change. I recall, and I

am sure you do too, Mr. Mudd, times in our history where the military—particularly after a conflict—have been under attack—I think it is a healthy sign that

the American public is interested enough to care about the military. And, if this

means criticism from time to time, that is all right, too, as long as the criticism is

constructive. I think the, because of our size and mostly because of our importance

and the safety and security of our country—the survival of our country—it is essential that the press, the public, the Congress keep a close watch on the Department of Defense. I also note, that when the chips go down, and the chips go down mostly in my view, when Congress votes, what I perceive is a recognition

on the part of the Congress of a need for a strong defense establishment and this support has been forthcoming and I would hope and pray that it will continue to be that way. And this support will be forthcoming because the public has access to what we are doing, right and wrong, and is keenly involved in our activities. I happen to believe this.

Mr. MUDD. Okay.

APPENDIX F

ASSISTANT SECRETARY OF DEFENSE,

Washington, D.C., May 19, 1971.

Hon. HARLEY 0. STAGGERS,

Chairman, Interstate and Foreign Commerce Committee,

House of Representatives, Washington, D.C.

DEAR Mn. CHAIRMAN: This letter is in response to a request from your Committee following my testimony on May 12. I want first to express my appreciation

for the courtesies extended to me by you and Members of your Committee during this appearance, and I want to reiterate my desire to be of all appropriate

assistance to you and your associates.

As you recall, a considerable point was made during the questioning relating

to the refusal by CBS to provide certain material, including the approximate 40

ininute interview which Mr. Roger Mudd conducted with me. At your request, I

drovided a tape of that interview, the transcript of which had previously been

supplied to the Chairman of the Senate Foreign Relations Committee and which

also had been published in the Congressional Record.

Your Committee asked me for my comments regarding my assertion that those

responsible for "The Selling of the Pentagon" had "doctored" and "misrepresented" my responses to Mr. Mudd's questions. There is no question that this

interview was doctored in such a manner as to misrepresent my views.

To set the background, the interview included approximately 45 questions and

took about 40 minutes on camera. This was condensed into 2.04 minutes in the

television program. I would have no objection if the editing had been limited to

condensation for requirements of time. But that was not the case at all.

The material selected for the telecast reflected in no manner the thrust of the

overall interview.

I believe it might be helpful to the Committee for me to run through the entire

question and answer dialogue, as it was shown to the public and as it actually

occurred. But first I would like to reiterate that I have at no time questioned

the integrity of CBS News, and in fact have stated that on numerous occasions

for obvious reasons, it has been necessary for CBS to edit responses to questions which I have made or which the Secretary of Defense has made in various

interviews. I have felt that I could count on the professionalism and integrity of

CBS people to edit such material fairly and in a manner which does not mislead

the American public. I still do.

But the obvious fact is that these standards were abandoned in this particular

show, and it is noteworthy that CBS has asked the Department of Defense to

ban the showing of this film to our troops overseas because of what its officials

have described as legal considerations.

The first question in the interview between me and Mr. Mudd used in the program was not taken from the interview itself, but was paraphrased in Mr.

Mudd's narration without substantially changing the thrust of the question. My

complete answer was edited to about half its length, as noted below:

"We asked the man in charge of all Pentagon public relations, Assistant Secretary of Defense Daniel Henkin, if he thought the press did a good job covering

the Defense Department."

"Henkin : I believe that it does . . . From time to time of course it gives me

some headaches and I give the press some headaches. We understand that. We

act professionally, as a professional relationship not only with the Pentagon press

and other members of the Washington news corps but with newsmen who cover

military activities around the world."

That completes the answer actually telecast. However, in the original interview,

I continued as follows:

"I—It is for them to assess not for me to assess, but my evaluation of this is

that we have a working relationship, an understanding that we make mistakes

and we do make mistakes, the press makes mistakes, but I do not believe that

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262

there is a feeling of distrust. I think there is an understanding of the fact that

we do make mistakes and the press makes mistakes. And I think it would be a

tragic situation for our country, particularly for our national strength, if there

developed a feeling of distrust, and not a recognition that as humans we do

make mistakes."

The material removed is not considered to be vital to the meaning and understanding of my answer, nor is the editing considered to be an objectionable instance of condensation.

A second question was asked and answered on the program as follows:

"Mudd: What about your public displays of military equipment at state fairs

and shopping centers—what purpose does that serve?"

"Henkin: Well, I think it serves the purpose of informing the public about

their Armed Forces. I believe that the American public has a right to request

information about the Armed Forces, to have speakers come before them, to

ask questions, and to understand the need for our Armed Forces, why we ask

for the funds that we do ask for, how we spend these funds, what we are doing

about such problems as drugs—and we do have a drug problem in the Armed

Forces. What are we doing about the racial problem in the Armed Forces, and

we do have a racial problem. I think the public has a valid right to ask us these

questions."

Note now how that specific question was answered in the original interview,

and also how the question itself was edited:

"Mr. Mudd: But aside from your meetings in which you disseminate information, what about your public displays of military equipment at State Fairs and

shopping centers? What purpose does that server"

"Mr. Henkin: Well, I think it serves the purpose of informing the public about

their armed forces. It also has the ancillary benefit, I would hope, of stimulating

interest in recruiting as we move or try to move to zero draft calls and increased reliance on volunteers for our armed forces. I think it is very important

that the American youth have an opportunity to learn about the armed forces."

Only the first sentence of my answer to the question was used. Thus, ray comments about ancillary benefits to recruiting, and my references to Service efforts

to achieve zero draft calls, and toward increased reliance on volunteers wer0

edited from the material. I believe this was a significant omission.

Note also that the rest of the answer as telecast, which was taken from

the response to an entirely different question, leaves an implication that I feel

shopping mall displays make a significant contribution to informing the public

about a broad range of subjects—needs of the Armed Forces and justification

of military expenditures, the drug problem, racial problems, etc. I did not make

such claims. This misleading impression was created by using a portion from

the answer to a different question. That statement, the one used completely out

of context, can be found in the sequence of questions following:

"Mir. Henkin. We have more requests than we can fulfill."

"Mr. Mudd. You do."

"Mr. Henkin. Both for exhibits, for spgakers—we just can't fulfill all the

requests we have."

"Mr. Mudd. Do you regard the display of military equipment in the country

and the instant availability of military speakers at Kiwanis and Rotary and

so forth as excessively militaristic?"

"Mr. Henkin. Of course I don't. If I believed that we would not have approved

these requests. I believe it is our obligation insofar as our resources permit to

respond to a request from Kiwanis or a Rotary group in a Midwestern city

as well—or any city, as well as New York or Chicago or San Francisco. I think

the people in any part of our country have a right to come to us and ask us if

we can provide a speaker, and when we can, I would hope we will."

"Mr. Mudd. But criticism has been raised, Mr. Henkin, that the result, unconscious though it may be, does create in the minds of the citizen a dependence,

or an acceptance of the military and what it represents, as a way to solve the

problems. You have heard that criticism."

"Mr. Henkin. Yes, but I—"

"Mr. Mudd. What do you say 

"Mr. Henkin.—I would—I would only amend your question there, Mr. Mudd,

to say in the minds of some citizens, it presents this, if I may use the word

"image." But I believe that the American public has the right to request information about the armed forces, to have speakers come before them, to ask questions,
263

and to understand the need for our armed forces, why we ask for the funds that

we do ask for, how we spend these funds, what are we doing about such problems

as drugs and we do have a drug problem in the armed forces—what are we doing

about the racial problem in the armed forces—and we do have a racial problem.

I think the public has a valid right to ask us these questions. Not only in the

big cities but throughout the country and to the extent that our resources permit,

I believe we should respond to these requests. And also I believe that we have an

obligation to inform, discuss with the American public the problems that we

confront, problems such as the increasing Soviet threat.

"Now there are those that contend that this is propaganda. I don't—do not agree

with this. There are those who contend that we do this to influence the budget.

I submit to you that, in my view at least, this is not a valid argument. The budget

for the current fiscal year was sent to Congress in February. It has not yet passed.

It probably will not pass, as you well know, covering the Hill, until late this

year, possibly early next year.

"If I permitted that to be my criteria, I would be forced to suppress news, and

I am not in this job to suppress news."

The original interview reflects my opinion that speakers, as well as other similar activities, contribute to a wide range of public affairs objectives. It seems

clear too that I do not attribute such a broad scope to mall displays, though I

do speak highly of officers and sergeants who man these displays and their ability

to address a wide range of subjects.

The next question and "answer" as portrayed in the telecast are as follows:

"Munn. Well is that sort of information about the drug problem you have and

the racial problem you have and the budget problems you have, is that the Fort

of information that gets passed out at state fairs, by sergeants who are standing

next to rockets?"

"HENKIN. No, I wouldn't limit that to sergeants standing next to any kind

of exhibit. Now there are those who contend that this a propaganda. I don't—

do not agree with this."

That same question in the original interview was actually answered as indicated below:

"Mr. MUDD. Well, is that sort of information about the drug program you have

and the racial problem you have and the budget problems you have, is that the

sort of information that gets passed out at State Fairs by sergeants who are

standing next to rockets?"

"Mr. HENKIN. No, I didn't—wouldn't limit that to sergeants standing next to

any kind of exhibits, I knew—I thought we were discussing speeches and all."

Mr. MUDD. What I mean—what—what possible—what sort of information

"Mr. HENKIN. But I am sure that if some—"

Note that my words, "I knew—I thought we were discussing speeches and all",

were removed from my answer for the telecast. Thus, the producer removed any

acknowledgment that speeches had been the topic of discussion, not merely shopping mall displays.

Next, the remainder of the answer was created by inserting two sentences

from an answer to a completely different question, out of context and out of sequence. The two sentences may be found in the questions and answers included

in the fifth quoted sequence. This clearly indicates that my reference to propaganda was made in explaining our obligation to meet with and discuss with

the public through the speakers program, a broad scope of military matters, including ". . . the increasing Soviet threat". This activity was what I said might

be called propaganda and I disagreed that it was. The insertion of that portion

of the answer into that for another question made it appear my reference pertained to shopping mall displays, a completely misleading impression.

There is, in short, a considerable difference between an answer to a question

about State fairs and comments on Soviet weapons developments.

The last segment of the actual interview appeared later in the telecast, and

concerned "staging," to which I have previously referred. The segment followed

comments by an ex-military cameraman claiming that staged "combat" shots

were released as realities, while actual combat mission photography was not released by the Department of Defense. The following sequence was inserted into

the film so as to abut the cameraman's charges, without introduction.

"Mr. Henkin. We're trying our best to provide information. There undoubtedly

have been times when certain actions have been staged. I think this is true of all

TV news coverage. After all, this interview is being staged."
264

"Mudd. How so?"

"Mr. Henkin. Well, props were set up; arrangements were made. You and I

just did not walk into this room cold. Arrangements were made for it." "Mudd. Well, we wanted to film in your office. But your people said let's go in the studio. So we didn't stage it."

Here is a transcript of the actual interview from which the material came: "Mr. Mudd. Well, now, Senator Fulbright has said and I am sure you are familiar with his comments since this is in your province, he said that there have been instances of "staging." that almost 50 per cent of the output during a given period of '69 was designed to make the South Vietnamese Army look more pro- ficient than it was and that the real purpose of—I think you called it the V

Series, Victory Series—was to propagandize the American people into thinking the South Vietnamese were better than they really were. What is your answer to that?"

"Mr. Henkin. First, let me say that we here have studied and, of course, will continue to study very closely any comments made by Chairman Fulbright. I

have been in communication with him and his office over a number of months on his views with regard to these, this TV coverage. I do not believe that we have— in fact, as we are forbidden by Secretary Laird's directive from participating in

a propaganda effort. We are trying our best to provide information. There un- doubtedly have been times when certain actions have been staged. I think this is true of all TV news coverage. After all, this Pnterview here is being staged, as

one might say."

"Mr. Mudd. How so?"

"Mr. Henkin. Well, props were set up, arrangements were made—I did not just walk into this room cold; arrangements were made for it."

"Mr. Mudd. Well, we wanted to film in your offices, but your people said let's

go to the studios. So, we didn't stage it."

Mr. Henkin. No, I am not accusing you of staging it. I made no accusations at all."

A comparison of the two excerpts shows that four important words were de- liberately removed from one of my answers: "as one might say." By removing these four words, what had been a comment indicating staging could be inter- preted in a manner of speaking, became a direct accusation that the interview

was being staged. Thus, the "accusation" was nonexistent in the original inter- view; it was created by the producer, and was misleading. Further, when the segment ended with Mr. Mudd's comment, "So, we didn't stage it", my emphatic

assurance that I had made no such accusation was deleted from the telecast.

At no time did I accuse or intend to accuse CBS of conducting a staged inter- view. What appeared on the program as such was the product of the editing and distortion of the original material. That fact is I stated precisely the opposite in

my interview and said: "No, I am not accusing you of staging it, I made no accusation at all."

If I was deeply concerned by this action in turning a "no" answer into a sug- gested "yes" answer on the show, thereby misrepresenting my views to the public, I was no less concerned when the producer, Mr. Davis, in a later tele- vision broadcast flatly charged me with having ,stated that I had accused CBS of staging the interview. It was he, not I, who projected such an accusation in connection with the doctoring of my words.

Subsequent to my appearance before your Committee. I was most interested to learn that there is at least one person at CBS, namely the producer of "The Sell- ing of the Pentagon," who apparently does not believe that information should be withheld from your Committee.

In an article published in The Nation Magazine of May 10, 1971, a memorandum reportedly from Peter Davis to Mr. Richard Salant, President of CBS News, includes the following sentence:

"Frankly, I would welcome any decision by Chairman Staggers and his Special

Subcommittee on Investigations to examine the circumstances under which "The

Selling of the Pentagon" was made and broadcast."

Incidentally, this memorandum, as printed in The Nation, attributed to Mr.

Davis the following erroneous allegation:

"There was the Army captain, a member of Mr. Henkin's own staff, who tried

to proposition one of the girls on our staff in order (he later said) to find out

what we were doing."
265

I referred in my testimony before your Committee to the fact that the show,

"The Selling of the Pentagon" contained misrepresentations, and so does the

foregoing allegation. For the fact is that during the time Mr. Davis was working

on this program, there was no Army captain assigned to my staff, nor is there one

now. As an example of how such misrepresentations grow, the New York Time.

Magazine of Sunday, May 16, 1971, contains an article by a Mr. Robert Sherrill,

identified as the Washington Correspondent of The Nation. Mr. Sherrill says that

in "The Selling of the Pentagon," no mention was made "of the Army officer who

tried to seduce one of the CBS researchers to find out what the investigation was

all about . . ." It is not my business, of course, to comment on assertions which

are made relating to a member of the CBS staff, but it is very much my business

to refute erroneous allegations concerning, in this case, nonexisting members of

my staff.

I hope that the information which has been provided will be of use to you and

your Committee.

Sincerely,

DANIEL Z. HENKIN.

APPENDIX G

SPECIAL SUBCOMMITTEE ON INVESTIGATIONS

OF THE

HOUSE COMMITTEE OR INTERSTATE AND FOREIGN COMMERCE

STAFF MEMORANDUM

LEGAL ISSUES RAISED BY SUBCOMMITTEE SUBPOENAS

regarding

CBS DOCUMENTARY "THE SELLING OF THE PENTAGON"

JUNE 8, 1971

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62-142 0 - 71 - 18
268

TABLE OF CONTENTS

Page,

INTRODUCTION 1

I. General Background 1

A. Congressional Investigatory Power 2

B. The Power of Congress to Regulate Broadcasting 17

C. The Free Press Guarantees Embodied in the

First Amendment ... 42

1. The First Amendment right of freedom of

the press is derived from and conditioned

upon the public interest and necessity for

preserving the right of free speech 42

2. Techniques of electronic manipulatiOn have

been developed which facilitate the presentation of artificially created scenes

as objectively observed facts 50

3. Because a free electorate forms its decisions

on matters which it determines to be factual,

the artificial transmutation of fact into

non-fact without disclosure presents a clear

and present danger to that electorate 53

II. Specific Arguments Advanced by CBS Brief 56

A. Legislative Purpose and Scope of the Subpoena 56

B. First Amendment Applicability to Broadcasting 59

C. Right of the Press to Criticize the Government 62

D. Alleged "Chilling Effect" of Subcommittee Subpoena "00 63

E. Asserted Equivalence of Outtakes to "Reporters Notes" 67

F. CBS Reliance on Caldwell Case 68

G. Absence of Allegations of Illegal Conduct 72

III. Summary and Conclusions 73

Conclusions 79
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INTRODUCTION 

The purpose of this memorandum is to review the legal issues

raised by the refusal of Frank Stanton, President of CBS, to comply

with the Subcommittee subpoena served upon him on April 8, 1971,

and his anticipated refusal to comply with the subpoena served on

May 27, 1971.

Certain legal precedents have been cited to the Subcommittee

by CBS as justification for this refusal to comply. These are

contained in a letter to the Chairman from Robert V. Evans, Esq.,

Vice President and General Counsel of CBS, dated April 20, 1971,

and a letter to CBS from its Washington attorneys, dated April .27.

This latter document was transmitted to the Chairman by Mr. Evan's

letter dated April 30, 1971.

The legal arguments advanced by CBS have been considered

carefully, and have been found to be without merit.

I. GENERAL BACKGROUND 

The position taken by Dr. Stanton and CBS in this matter

necessarily requires a consideration of three bodies of legal

precedent: (a) Congressional investigatory power; (b) the power

of Congress to regulate broadcasting; and (c) the free press

guarantees embodied in the First Amendment.
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A. Congressional Investigatory Power.

CBS seemingly concedes the importance of the Congressional

power to investigate (Evans, letter of April 20). The effect of

its argument, however, would be a drastic erosion of this power

with respect to broadcasting. Proceeding from what appears to

be a threshold misconception, CBS has failed to address itself

to certain basic considerations of Constitutional law concerning

the investigative prerogatives of the legislature.

In view of this omission, it will be necessary to begin this

analysis with a brief discussion of relevant case law pertaining

to Congressional investigations.

The investigating power of the House of Representatives is

one which has its antecedents in centuries of Anglo-American history.

The roots of the House's power lie deep in the British Parliament

and may be said to be derived from that of the British Lower House:

The Commons are, in the words of Lord Coke,

the general inquisitors of the realm ...

they may inquire into everything which it

concerns the public weal for them to know.

Howard V. Gosset, 10 Q.B. 359, 379(1845).

It is interesting to note that in language strikingly similar

to Lord Coke, Mr. Justice Wilson, a member of the first Supreme

Court, spoke in 1791 of the investigatory power of the House of

Representatives in the following manner:

The House of Representatives ... form the

grand inquest of the state. They will

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diligently inquire into grievances arising

both from men and things. Works of 

James Wilson (1896) 29.

In the same vein, when the House called upon President George

Washington to produce records relating to the expedition of

General St. Clair, his Cabinet unanimously determined:

•

First that the House was an inquest and

therefOre might institute inquiries.

Second, that they might call for papers

generally. See Taylor, Grand Inquest 

(1955) 23.

The Supreme Court commented on the nature of this congressional power in the leading case of McGrain v. Daughtery, 273

U. S. 135, 161 (1927):

In actual legislative practice power to

secure needed information by such means has

long been treated as an attribute of the

power to legislate. It was so regarded in

the British Parliament and in the Colonial

legislatures before the American Revolution;

and a like view has prevailed and been

carried into effect in both Houses of Congress

and in most of the State legislatures.

And, it was in McGrain that the Court, noting no provision expressly investing either House of Congress with the power to

investigate and exact testimony, found that investigatory power

flows, of necessity, from the power to legislate:

We are of opinion that the power of inquiry--

with process to enforce it--is an essential

and appropriate auxiliary to the legislative

function. (p. 174.)
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A legislative body cannot legislate wisely

or effectively in the absence of information

respecting the conditions which the legislation is intended to affect or change; and

where the legislative body does not itself

possess the requisite information--which not

infrequently is true--recourse must be had

to others who possess it. Experience has

taught that mere requests for information

often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion

are essential to obtain what is needed... .

Thus there is ample warrant for thinking, as

we do, that the constitutional provisions

which commit the legislative function to the

two houses are intended to include this

attribute to the end that the functions may

be effectively exercised. (p. 175.)

An earlier State case appears to have anticipated McGrain:

It is a well-established principle ... that

either House may institute any investigation

having reference to ... any matter affecting

the public interest upon which it may be important that it should exact information, and

in respect to which it would be competent for

it to legislate. People ex rel McDonald v.

Keeler, 99 N.Y. 463 (1885).

Moreover, the scope of a congressional inquiry may be as broad

as the valid legislative purpose. In Townsend v. U.S., 95 F.2d

352 (D.C. Cir. 1938), the court said:

A legislative inquiry may be as broad, as

searching, and as exhaustive as is necessary

to make effective the constitutional powers

of Congress ... . A judicial inquiry relates

to a case, and the evidence to be admissible

must be measured by the narrow limits of the

pleadings. A legislative inquiry anticipates

all possible cases which may arise thereunder,

and the evidence admissible must be responsive

to the scope of the inquiry, which generally

is very broad. (p. 361.)
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See also Barsky v. U.S., 167 F.2d 241 (D.C. Cir. 1948), cert. den.

334 U.S. 843 (1948); Eisler v. U.S., 170 F.2d 273, writ of cert.

dismissed, 338 U.S. 883 (1949), and Josephson v. U.S., 165 F.2d

82, cert. den., 333 U.S. 838 (1948). And in U.S. v. Morton Salt 

Co., 338 U.S. 362 (1950) the Court commented on the broad investigatory power of administrative agencies, creatures of Congress,

as follows:

It [administrative agency] has a power of

inquisition ... which is not derived from

the judicial function. It is more analogous

to the grand jury, which does not depend on

a case or controversy for power to get evidence but can investigate merely on suspicion

that the law is being violated, or even just

because it wants assurance that it is not.

Certainly, the investigatory powers of an administrative

agency, admittedly broad, cannot exceed those of the Congress

from whence it derived its authority. In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the Court expressly

stated that congressional investigatory power is at least as

extensive as that of an administrative agency.

In this regard, court decisions regarding the legitimate

scope of FCC investigations are informative. In F.C.C. v. Cohn,

154 F. Supp. 899 (S.D.N.Y. 1957) the court stated:

Congress has not been niggardly in providing

the Federal Communications Commission with

ample authority to conduct investigatory proceedings necessary for the execution of its

multiple functions. (p. 908.)
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That case arose as a result of the FCC's network investigation. It was contended that the agency could not subpoena

information from independent producers inasmuch as it had no

regulatory authority over them. The court held that the Commission's investigatory andesubpoena power was sufficient; that

the "comprehensive powers" conferred on the Commission include

broad investigatory authority. This is not limited to its licensing or rule-making proceedings, but also encompasses the purpose

of "making specific recommendations to Congress as to additional

legislation which the Commission deems necessary or desirable,"

(154 F. Supp. at 905).

To the same effect is Stahlman v. F.C.C., 126 F.2d 124

(D.C. Cir., 1942) wherein it was stated that the Commission's

investigatory authority "includes authority to obtain the information necessary to discharge its proper functions, which would

embrace an investigation aimed at the prevention or disclosure

of practices contrary to public interest." (p. 127.)

The suggestion that there must be an actual, or suspected,

breach of law in order to justify a subpoena (CBS brief, pp. 12(note),

26), has been overwhelmingly repudiated by the courts:

In both federal and state courts until recent

decades, subpoenas were unenforceable unless

either they related to adjudication or they

were based upon probable cause to believe

that the law had been violated. But the earlier

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7

law is now completely superseded in the

federal courts and almost completely superseded in the state courts. Agencies now

may enforce subpoenas issued in the course

of investigations, whether or not adjudication is involved, and whether or not probable cause is shown. [Davis, Administrative 

Law, sec. 3.04, page 171 (1958).]

But, even under the previously existing law, the power of

the Congress was not subject to the same restrictions placed on

agency investigative subpoenas. [See Langeluttig, Constitutional 

Limitations on Administrative Power of Investigation, 28 Ill. L.

Rev. 508 (1933).] In Oklahoma Press Publishin Co. v. Wallin

supra, the Supreme Court stated:

It is not necessary, as in the case of a

warrant, that a specific charge or complaint of violation of law be pending or

that the order be made pursuant to one.

It is enough that the investigation be for

a lawfully authorized purpose, within the

power of Congress to command. (pp. 208-09

It is noteworthy that legislative investigatory power has

been upheld in cases involving First Amendment issues. In

Barenblatt v. United States, 360 U.S. 109 (1959), the Court upheld

a conviction for refusing to answer questions concerning membership in the Communist Party before a House committee. The Court

rejected the argument that the individual's First Amendment rights

were violated by his being compelled to disclose his associational

memberships. Similar arguments regarding alleged violation of

the right of free speech were rejected in Uphaus v. Wyman, 360
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U.S. 72 (1959) (State legislative committee). To the same

effect is Wilkinson v. U.S., 365 U.S. 399 (1961).

The Barenblatt, Uphaus, and Wilkinson cases are of particular

relevancy in View of the rationale advanced by CBS counsel that

compliance with the Subcommittee's subpoena would "chill" the

exercise of First Amendment rights. But the Court has, in these

three cases, sustained the legislative investigatory power, even

in the face of challenges raised by natural persons, as opposed

to a corporate entity, alleging direct, as opposed to derivative,

infringement of their First Amendment rights..

In Watkins v. U.S., 354 U.S. 178 (1957), the Supreme Court

reversed a conviction for contempt of Congress where it appeared

that the witness was not provided with a sufficient statement of

the legislative purpose of the investigation by which he might

evaluate the pertinency of questions propounded to him. In reversing this conviction, however, the Supreme Court stated the

general rule as follows:

We start with several basic premises on

which there is general agreement. The

power of the Congress to conduct investigations is inherent in the legislative

process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It

includes surveys of defects in our social,

economic or political system for the purpose of enabling the Congress to remedy

them. It comprehends probes into departments of the Federal Government to expose

corruption, inefficiency or waste. (p. 187.)
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Obviously, the investigatory function must be addressed to

a valid legislative purpose. In the McGrain case, the Court

found this purpose to exist:

Plainly the subject was one on which legislation could be had and would be'materially

aided by the information the investigation

was calculated to elicit. (p. 177.)

Thus, the essential elements of a Congressional investigation

are: (1) valid legislative purpose, and (2) relevancy of questions

asked or evidence required.

In view of the settled legal authority holding that the

Congressional power to investigate is corollary to its power to

legislate, a necessary element in the CBS argument was a showing

that the subject matter involved in the Subcommittee's inquiry.is

one concerning which no valid legislation could be enacted and/or

that the information subpoenaed was not relevant to the matter

under investigation. This seems to have been initially recognized

by CBS; the April 20 letter of the CBS Vice President and General

Counsel stated as follows:

With all respect for the rights and duties

of the Congress, and with full recognition of

the importance of the Congressional power to

investigate, we cannot conceive of any legitimate legislative purpose to which the materials

requested would be relevant. The First Amendment is sweeping and explicit; it says that

"Congress shall make no law ... abridging the

freedom of speech, or of the press."

(Emphasis supplied.)
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But neither that letter nor the subsequent brief prepared by

CBS attorneys attempts such a demonstration.

To take but one example from the legislative purposes set

forth in the Chairman's statement of April 20th:

The Subcommittee must consider, among other

things, whether t public has a right to

be advised when edited sequences are presented

to them under conditions. which might suggest

that they have not been edited. (p. 5.)

This particular passage from the Chairman's statement clearly

envisions the possibility that a new section might be desirably

incorporated into the Communications Act of 1934 which would

provide for appropriate disclosure to the viewing audience when

(a) an edited sequence is televised which (b) would give the

appearance, absent such disclosure, of being unedited.

Jr. justification for its refusal to provide the material

called for in the subpoena, it was necessary for CBS to demonstrate one of the following propositions:

1. Such a new section could not be constitutional, regardless of how it might be

drafted; and/or

2. The materials called for in the subpoena

would not be relevant to a consideration

of such a measure.

Obviously, CBS could not be successful in sustaining either of

these propositions. Specifically, it is difficult to see on what

basis such a disclosure requirement, which obviously adds to the

information placed in the hands of the public, could be held
279

offensive to the First Amendment (Cf. 47 C.F.R. 73.653,

disclosure requirement for "mechanical reproduction" of televised

material).

Likewise, it is equally difficult to see how the materials

described in the Subcommitti,e subpoena could be held not to be

relevant to a consideration of the, public interest in such a new

section of the Communications Act. Certainly, a direct comparison

of the final, edited, version with the original uncut version of

the same event would afford the most direct and valid means of

examining whether the public interest would require such disclosures. This particular example is but one of the several legislative concerns involved in the present matter.

This, of course, is not to suggest that each item called

for in the subpoena would be pertinent to the particular section

just quoted from the Chairman's statement. But, in order to

justify withholding material called for in the subpoena, it was

necessary for CBS to show that the material withheld was (a) not

relevant to any of the various legislative concerns enumerated

in the Chairman's statement, or, in the alternative, (b) that the

stated legislative concerns themselves could not be embodied in

Constitutional legislation. CBS has not attempted to offer such

argument. As a result, the legitimacy of the legislative concerns

involved in this Subcommittee inquiry have not been challenged,
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nor has the relevancy of the subpoenaed materials to those

concerns been questioned. On this basis alone, it appears that

the Subcommittee's action is a valid exercise of its legislative

powers and would be sustained as such by the courts. As the

court stated in Fischler v. McCarthy, 117 F. Supp. 643 (S.D.N.Y.),

aff'd 218 F.2d 164 (2d Cir. 1954) (per curiam):

It is entirely clear ... that neither this

nor any other court may prescribe the subjects of Congressional investigation. Were

a court empowered to limit in advance the

subjects of Congressional investigations,

violence would be done to the principle of

separation of powers upon which our entire

political system is based. (at 648.)

[T]he legislature cannot be compelled to

submit to the prior approval and censorship

of the judiciary before it may ask questions

or inspect documents through its investigating subcommittees, or even before it enacts

legislation ... any more than the judiciary

can be compelled by the legislature to submit

its rulings or decisions for legislative

approval. (at 650.)

Presumably recognizing that the Subcommittee's inquiry could

not be successfully attacked on the basis of legislative purpose

and relevancy, the CBS argument avoided these issues and proceeded

on another tack. It began by disregarding the Chairman's announced

statement of purposes which clearly excluded such matters as program bias or point of view. CBS stated:

Despite the disclaimers, it is clear from

the statement of purposes that the Subcommittee will necessarily be engaged in
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far-reaching surveillance of the specific

news judglipnts and editorial decisions made

by CBS in the preparation and broadcast of

"The Selling of the Pentagon." (Brief, p. 5)

(emphasis supplied.) *

But the CBS brief offers no substantiation for such an

assertion. Instead, the CBS brief proceeds to describe the

Subcommittee's legislative concerns in excessively broad generalities in an attempt to widen their apparent scope. .It does

so by the readily discernible technique of quoting out of context from the Chairman's statement of April 20.

It is stated, for example, that, included in the subjects

to be investigated, are the "production and editing techniques"

(Brief, p. 5). This phrase appears in point 7 of the Chairman's

statement wherein he listed generally the legislative subjects'

under inquiry and study by the Subcommittee (TR. 9). But in

that statement, those words are set forth in a context which

The Chairman's statement carefully delineated the scope

of the inquiry noting that program point of view is of

no interest. Yet, CBS insists that its criticism of an

aspect of government spurred the inquiry (Brief, p. 17).

In any event, in Watkins, supra, the Court said it would

not test the motives of the committee members. "Such is

not our function. Their motives alone would not vitiate

an investigation which had been instituted by a House of

Congress if that assembly's legislative purpose is being

served." (at p. 200.)
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clearly refers to such potentially deceptive practices as

manipulations of sound tracks, film and/or videotape, which

rearrange the sequence of events, mismatch responses, etc.

(TR. 12), and not to production and editing techniques in the

abstract.

The CBS brief also states that "filming and editing practices"

are also included in the subjects to be investigated by.the Subcommittee. But the Chairman's statement makes use of those terms in

a rather specialized sense which is not acknowledged in the CBS

paraphrase:

... filming and editing practices, consisting 

of rearranging, staging, or misrepresenting_

events, giving viewers an erroneous impression 

that what they are seeing has really happened,

or that it happened in the way and under the 

circumstances in which it is shown. (TR. 16;

emphasis added.)

The underlined language obviously has the effect of sharply modifying the scope of the Subcommittee's concern.

Such manipulative practices, which would not involve traditional editing and which would, in effect, manufacture news, are

a legitimate legislative concern because they would adversely

affect the people's right to know.

As a final example, in the Chairman's original statement, one

of the legislative subjects under study was described in the following words:
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The applicability, if any, of the fairness

doctrine to questions of factual accuracy.

The CBS brief seizes upon the words "factual accuracy" to produce

the following, result:

These [production, editing, and filming]

techniques and practices are to be judged

for "factual accuracy." (CBS brief, p. 5.)

The mere juxtaposition of the original language with the paraphrase

is sufficient to illustrate the technique employed.

The purpose of such expansive restatements of the Subcommittee's

legislative concerns is to inject as much plausibility as possible

into the CBS assertion that the Subcommittee will involve itself

in a reviewirg function designed "to apply a presumed objective

criterion of truth, both to the product of journalism and to the

very heart of the _journalistic process," (CBS brief, p. 6.). It

is on this ill-founded basis that CBS builds its First Amendment

argument, which upon examination must fail for other more fundamental

reasons (see below).

The Subcommittee's overall jurisdiction in the area of broadcasting has not been challenged in the CBS brief, and will be briefly

restated here for the sake of completeness.

Clause 12 of Rule XI of the House of Representatives charges

the Committee on Interstate and Foreign Commerce with responsibility

for legislation having to do with the regulation of interstate and

foreign communications. Clause 28 of Rule XI of the House of

62-142 0 - 71 - 19
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Representatives, recently enacted as part of the Legislative

Reorganization Act of 1970, provides with respect to this jurisdictional area over the laws governing broadcasting:

(a) In order to assist the House in

(1) Its analysis appraisal, and evaluation

of the application, administration, and

execution of the laws enacted by the

Congress, and

(2) Its formulation, consideration, and

enactment of such modifications of or

changes in those laws, and of such

additional legislation, as may be

necessary or appropriate.

Each standing committee shall review and study,

on a continuing basis, the application, administration, and execution of those laws, or parts

of laws, the subject matter of which is within

the jurisdiction of that committee.

And finally, House Resolution 170 of the 92nd Congress authorizes

this Committee, acting as a whole or as a subcommittee, to conduct

full and complete studies and investigations and to make inquiries

within its jurisdiction as set forth in clause 12 of Rule XI.

. These sections are the Subcommittee's charter, clearly establishing legislative responsibility in the area of broadcasting.

In view of the presence of legitimate legislative concerns

and the relevancy of the material subpoenaed to those concerns,

it is concluded that the Subcommittee is within its rights to

require the production of the materials called for. The subject

is one upon which legislation may be had; this legislation would
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be materially aided by the information the subpoena is designed

to elicit. McGrain v. Dougherty, supra.

B. The Power of Congress to Regulate Broadcastta.

As the previous sectiou has shown, the present Subcommittee

inquiry falls well within the recognized legal standards applied

to legislative investigations. The presence of valid legislative

purpose and relevancy have not been seriously challenged by the

CBS brief. As to relevancy, the.CBS document does not attempt a

demonstration that the materials called for by the Subcommittee's

subpoena are irrelevant to the enunciated legislative concerns

contained in the Chairman's statement of April 20, 1971. And the

relevancy of the subpoenaed materials is clear, in any event.

A. this section will further demonstrate, the legislative

concerns enunciated by the Chairman are well within the traditional

boundaries set for the regulation of broadcasting.

The underlying rationale of the Communications Act of 1934

is contained in the following language from section 301:

It is the purpose of this Act, among other

things, to maintain the control of the

United States over all the channels of

interstate and foreign radio transmissions;

and to provide for the use of such channels,

but not the ownership thereof, by persons

for limited periods of time, under licenses

granted by Federal authority, and no such

license shall be construed to create any

right beyond the terms, conditions, and

period of the license.
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Section 301 prohibits broadcasting without a license.

Unlicensed transmission is a criminal offense (Sec. 501). The

Commission may issue a license only if it finds that the "public

convenience, interest, or necessity will be served thereby"

(Sec. 307(a)).

Section 319(a) provides that no license shall be issued

under the Act, with limited exceptions, for the operation of any

station unless a permit for its construction shall first have been

granted by the Commission. On filing with the Commission for such

a permit, the applicant must give notice of such filing in the

principal area which is to be served by the station (Sec. 311(a)

(1)). The construction permit granted by the FCC states specifically the time period during which the applicant is expected

to be prepared to commence operations; if the station is not

ready for operation within the specified period, or within such

further time as the Commission may allow, the construction permit

is automatically forfeited (Sec. 319(b)). Upon completion of the

station pursuant to a construction permit, the Commission will

issue a license for the operation of the station provided it

appears that the operation of such station would be in the public

interest (Sec. 319(c)). Broadcast licenses are limited to three

years in duration, at the expiration of which the licensee must

apply for a renewal (Sec. 307(d)). Broadcast licenses may be
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assigned or transferred only upon application to the Commission, and a finding by it "that the public interest, convenience, and necessity will be served thereby," (Sec. 310(b)).

The very existence of such a regulatory framework -- which

•

is justified and necessitated by the nature of broadcasting

-- stands as a bar to facile attempts to equate a radio transmitter with a printing press.

Senator Wallace White, the Chairman of the Senate Interstate and Foreign Commerce Committee, emphasized the distinguishing features between broadcasting and print journalism

when that Committee in 1947 considered amending the Communications Act to give radio the same degree of freedom from governmental regulation of content as newspapers. Referring to the

"vast difference in principle between the absolute right of

anyone who wants to go into the newspaper business, and the

necessarily limited right to operate a broadcasting station,"

Senator White pointed out:

I do not accept in any degree that there

is no difference between the power of

Government with respect to newspapers

and the power of Government with respect

to radio communications ... If you

[radio people] are placing your feet on

that foundation, [you] are just indulging

in dreams. Because Congress will not

•
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stand, in the long run, for any such

interpretation. (Hearings on S. 1333

Before the Senate Committee on Interstate and Foreign Commerce Committee,

80th Cong., 1st Sess., at 126 (1947).

Inherent in the above tenets of broadcast regulation is

a recognition of the technical limitations on the use of the

airwaves. These limitations, of necessity, require that not

all who desire to use the powerful instruments of broadcasting can be permitted to do so.

This familiar fact, and the regulatory consequences which

flow from it, were recognized by the Supreme Court almost thirty

years ago in the landmark decision, National Broadcasting Company'

v. U.S., 319 U.S. 190 (1942):

Freedom of utterance is abridged to

many who wish to use the limited .

facilities of radio. Unlike other

modes of expression, radio inherently is not available to all. That

is its unique characteristic, and

that is why, unlike other modes of

expression, it is subject to government regulation. (p. 226)

In the NBC case, the Supreme Court recognized that the

authority conferred upon the FCC by Congress was not limited to

technical and engineering matters:

The Act itself establishes that the

Commission's powers are not limited

to the engineering and technical aspects of regulation of radio communication. Yet we are asked to regard
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the Commission as a kind of traffic officer,

policing the wave lengths to prevent stations

from interfering with each other. But the 

Act does not restrict the Commission merely 

to supervision of the traffic. It puts upon

the Commission the burden of determining the

composition of that traffic. (pp. 215-16;

emphasis supplied.)

The avowed aim of the Communications Act of 1934

was to secure the maximum benefits of radio to

all the people of the United States. To that

end Congress endowed the Communications Commission

with comprehensive powers to promote and realize

the vast potentialities of radio. ... [T]hese

provisions, individually and in the aggregate,

preclude the notion that the Commission is empowered to deal only with technical and engineering impediments to the "larger and more effective

use of radio in the public interest." We cannot

find in the Act any such restriction of the Commission's authority. (p. 217.)

This interpretation of the Act was unanimously upheld 27 years

later in the case of Red Lion Broadcasting Company v. F.C.C. 395

U.S. 267 (1969), wherein the Supreme Court recalled that previous

decision in these words:

The Court upheld the regulation, unequivocally

recognizing that the Commission was more than

a traffic policeman concerned with the technical aspects of broadcasting and that it

neither exceeded its powers under the statute 

nor transgressed the First Amendment in interesting itself in general program format and the 

kinds of program broadcast by licensees.

(p. 395; emphasis supplied.)

Obviously the statements regarding the authority of the FCC

apply with even greater emphasis to the Congress of the United States.
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For the Commission exists only by virtue of an Act of Congress,

and it has no authority or power at all save only that which the

Congress has delegated to it.

In the Red Lion case, the broadcasters challenged the Fairness

Doctrine (see below), and its specific application in the so-called

"personal attack" and political editorial rules. Their contention

was that the imposition of such regulatory controls--controls which

are not imposed on the print media--was offensive to the First

Amendment:

No man may be prevented from saying or publishing what he thinks, or from refusing in his

speech or other utterances to give equal weight

to the views of his opponents. This right,

they say, applies equally to broadcasters.

(Red Lion at p. 386.)

The Supreme Court laid this argument to rest in the following words:

Although broadcasting is clearly a medium

affected by a First Amendment' interest,

United States v. Paramount Pictures, Inc.,

334 U.S. 131, 166 (1948), differences in the 

characteristics of new media justify differences in the First Amendment standards 

applied to them. (p. 386; emphasis supplied.

Where there are substantially more individuals

who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast 

comparable to the right of every individual to 

speak, write, or publish. (p. 388; emphasis

supplied.)
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[A]s far as the First Amendment is concerned

those who are licensed stand no better than

those to whom licenses are refused. A license

permits broadcasting, but the licensee has no

constitutional right to be the one who holds

the license or to monopolize a radio frequency

to the exclusion of his fellow citizens. There

is nothing in the First Amendment which prevents

the Government from requiring a licensee to

share his frequency with others and to conduct

himself as a proxy or fiduciary with obligations

to present those views and voices which are

representative of his community and which would

otherwise, by necessity, be barred from the airwaves.

This is not to say that the First Amendment is

irrelevant to public broadcasting. On the

contrary, it has a major role to play as the

Congress itself recognized in Section 326, which

forbids FCC interference with "the right of free

speech by means of radio communication." Because of the scarcity of radio frequencies, the

Government is permitted to put restraints on

licensees in favor of others whose views should

be expressed on this unique medium. But the 

people as a whole retain their interest in free 

speech by radio and their collective right to 

have the medium function consistently with the 

ends and purposes of the First Amendment. It 

is the right of the viewers and listeners, not 

the right of the broadcasters, which is paramount. ... (pp. 389-90; emphasis supplied.)

The Red Lion and NBC cases, supra, are easily the most significant Supreme Court decisions concerning broadcasting. Their philosophy has been echoed in other major decided cases as well. See

Johnston Broadcasting Co. V. FCC, 175 F. 2d 351 (D. C. Cir. 1949)
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(FCC consideration of proposed programs of competing applicants

does not violate First Amendment); Banzhaf v. FCC, 405 F. 2d

1082 (D.C. Cir. 1968) cert. den. 396 U.S. 842 (1969) (Fairness

Doctrine applied to cigarette commercials).

CBS' reliance upon the case of Rosenbloom v. Metromedia,

415 F. 2d 892 (3rd Cir. 1969), aff'd U.S. (1971) (No. 66,

decided June 7, 1971), is misplaced; moreover, the case appears

quite damaging to the CBS position. This much is clear both from

the Circuit Court decision and the affirming opinion of the

Supreme Court. The CBS brief quotes the following language from

the Court of Appeals decision in Rosenbloom:

[N]o rational distinction can be made between

radio and television on the one hand and the

press on the other in affording the Constitutional protection contemplated by the First

Amendment. (p. 895.)

Taken in a literal sense, this language might appear to place

the lower court in direct conflict with the clearly stated position

of the Supreme Court in the Red Lion case, supra, that "differences

in the characteristics of new media [i.e. broadcasting] justify

differences in the First Amendment standards applied to them."

(Red Lion, p. 386) But the Rosenbloom case involved a libel action

against a radio station, and the language of the court must be read

in the light of that fact situation. It may be, as the lower court

has indicated, that radio and television stand on the same footing
293

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as the press with respect to First Amendment protection against

libel actions. But the Third Circuit Court of Appeals cannot

logically be interpreted as enunciating a broad principle going

beyond the fact situation before it.

Furthermore, and unfortunately for the CBS position, the

Court of Appeals in the Rosenbloom case based its decision on

the fact that the alleged defamatory statements occurred during

the broadcast of late-breaking news items:

Not only did the broadcasts under

attack concern subject matter of public interest, but of equal significance they involved broadcasts of

"hot news" items, i.e., summaries of

the latest news given on the hour

and the half hour in reports ranging

from 90 seconds to 10 minutes. ...

The primary value of these items to

the public is in conveying the latest

news as promptly as possible so that

it has the opportunity to be informed

of news items of possible immediate

public concern. It is not realistic

to require thorough research or verification of each individual item under

these conditions. The need for Constitutional protection in the circumstances is much more apparent than in

the cases of the so-called documentaries or feature stories where time

is available to attempt to verify

questionable material. (pp. 895-96.)

In view of the above quoted language, it is clear that the

Third Circuit Court of Appeals recognized a significant distinction
294

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between the so-called "hard news" report and the news documentary. This distinguishing factor was noted with approval by the

Supreme Court in its affirming decision (page 10, slipsheet

opinion). It is clear from this that the holdings in the

Rosenbloom case are not applicable to news documentaries such as

the CBS program in question in these proceedings.

It is also clear that both the Third Circuit and the Supreme

Court decisions in this case turn on the question of what burden

of proof is to be imposed upon plaintiffs in libel actions.

The case, therefore, does not assert any blanket equality

between broadcasting and newspapers, although it does recognize

an important distinction between "hot news" items and news documentaries. One further statement from the Supreme Court's holding in Rosenbloom is worthy of note in view of some of the allegations raised in this matter:

Calculated falsehood, of course, falls

outside 'the fruitful exercise of the

right of free speech.' (slipsheet

opinion, at 23).

The judicial language, from both the Red Lion and the NBC 

cases, has been quoted at length in view of the position taken

in the CBS brief which seeks to narrowly limit the scope of

broadcast regulation. Thus, CBS' counsel describe their version

of permissible broadcast regulation in the following language:
295

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[S]ome government regulation is required

to deal with the scarcity of frequencies

available ... [citing FCC regulation of

spectrum use regarding aircraft, police,

and amateur operations, etc.]. Courts

have also upheld the Commission's power

to place some limits on the types of

programs that may be employed by new

forms of broadcast service (such as

Pay-TV) ... . In sum, these cases have

established that the First Amendment does

not bar the Federal Government from regulating access to the spectrum, in order

to maximize efficient utilization and

augment the diversity of communications

services. (CBS brief, pp. 10-11.)

But this is just the type of "traffic policeman" theory of

broadcast regulation which the Supreme Court rejected in the

NBC case (1943), and again in the Red Lion case (1969). It

ignores the very large body of case law (see below) which

upholds the right of the FCC (and, by necessary inference, the

right of Congress) to treat the broadcaster as a trustee for

the public and to insist that his programming be in the public

interest. CBS, therefore, is urging the Subcommittee to accept

a theory of broadcast regulation which has already been twice

rejected by the Supreme Court and has been untenable for thirty

years.

In rejecting the broadcasters' First Amendment arguments

in the Red Lion case, the Supreme Court upheld the FCC's tradi-
296

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tional Fairness Doctrine as enunciated in its 1949 Report on 

Editorializing by Broadcast Licensees, 13 FCC 1246; 25 RR 1901

(1949).

The Supreme Court described the Fairness Doctrine as imposing

two types of responsibility upon broadcasters:

There is a two-fold duty laid down by the

FCC's decisions and described by the 1949

Report on Editorializing by Broadcast

Licensees ... . The broadcaster must 

give adequate coverage to public issues 

[citation omitted] and coverage must be 

fair in that it accurately reflects the 

oppging views [citation omittedj .

The Federal Radio Commission had imposed

these two basic duties on broadcasters

since the outset [citations omitted] ...

(pp. 377-78; emphasis supplied).

In its brief (p. 12), CBS asserts that in the Red Lion case,

the Supreme Court was facing only the narrow question of whether

"the Commission could in certain limited circumstances create a

right to reply ..." (CBS brief, p. 12). The above quoted

passages from the Supreme Court decision, render completely

untenable the limited interpretation which CBS now wishes to

place on that case. Accepting such an interpretation would

require the Subcommittee to ignore, as CBS has ignored, the following plain language from the Supreme Court's decision:

The Fairness Doctrine finds specific recognition in statutory form, is in part modeled

on explicit statutory provisions relating to
297

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political candidates, and is approvingly

reflected in legislative history. In 1959

the Congress amended the statutory requirements of Section 315 that equal time be

accorded each political candidate to accept

cerain appearances on news programs, but

added that this constituted no exception

"from the obligation imposed upon them under 

this Act to operate in the public interest and

to afford reasonable qpportunity for the discussion of conflictin9 views on issues of 

public importance." ... This language makes it

very plain that Congress in 1959, announced

that the phrase "public interest" which had

been in the Act since 1927, imposed a duty

on broadcasters to discuss both sides of

controversial public issues. In other words,

the Amendment vindicated the FCC's general

view that the Fairness Doctrine inhered in the

public interest standard. (p. 380; emphasis

in original.)

Such passages make it clear that the Supreme Court recognized

the statutory validity of the Fairness Doctrine itself.

The FCC's 1949 Editorializing Report, supra, is the Commission's definitive statement on the Fairness Doctrine. That

report recognized the inherent power granted to the broadcaster

to influence and, if he so desired, propagandize the electorate.

This great power arises, not by virtue of any rhetorical talents

possessed by the broadcaster, or the righteousness of his causes,

but by virtue of the extremely powerful means of mass communications which is entrusted to him and necessarily withheld from

others. As a result of this government-enforced monopoly, the

broadcasters have been aptly described as "those who sit astride

the channels of communication with the general public." (Red Lion,

supra, at p. 401, note 28.)
298

- 30 -

The EditorializinR_Report also recognized that with such

great power comes great responsibility:

It is clear that the licensee's authority

to determine the specific programs to be

broadcast over his station gives him an

opportunity, not available to other persons,

to insure that his personal viewpoint on

any particular issue is presented in his

station's broadcasts, whether or not these

views are expressly identified with the

licensee. And, in the absence of governmental restraint, he would, if he so chose,

be able to utilize his position as a broadcast licensee to weight the scales in line

with his personal views, or even directly

or indirectly to propagandize in behalf of

his particular philosophy or views on the

various public issues to the exclusion of

any contrary opinions. (25 RR 1908.)

It must be recognized, however, that the

licensee's opportunity to express his own

views as part of a general presentation of

varying opinions on particular controversial

issues, does not justify or empower any

licensee to exercise his authority over the

selection of program material to distort or 

suppress the basic factual information upon 

which any truly fair and free discussion of 

public issues must necessarily depend. ...

A licensee would be abusing his position as

a public trustee of these important means of

mass communication were he to withhold from

expression over his facilities relevant news

or facts concerning a controversy or to slant 

or distort the presentation of such news. No

discussion of the issues involved in any controversy can be fair or in the public interest

where such discussion must take place in a

climate of false or misleading information

concerning the basic facts of the controversy.

(20 RR 1910; emphasis supplied.)
299

-31 -

As will be seen below, this concern with distortion and

resultant deception of the public, has already given rise to a

number of statutory and regulatory provisions of unquestioned

constitutionality.

The above-quoted language from the Editorializing Report 

points up another important aspect of broadcast regulation. The

broadcaster--unlike the newspaper publisher--is held to be a fiduciary or trustee to the public.

Interpreting the NBC case, in McIntire v. Penn Broadcastina

Co., 151 F.2d 597 (3d Cir., 1945), the Court of Appeals for the

Third Circuit stated:

It is plain ... that a radio broadcasting

station must operate in the public interest

and must be considered a "trustee" for the

public. (p. 599.)

Similarly, in the Red Lion case, supra, the Supreme Court

stated that "it does not violate the First Amendment to treat

licensees given the privilege of using scarce radio frequencies

as proxies for the entire community ... ." (395 U.S. 367, at

394.)

The case of Office of Communication of United Church of 

Christ v. FCC has twice been before the U. S. Court of Appeals

for the District of Columbia Circuit. On both occasions, the

opinion of Judge Burger, since elevated to be Chief Justice of the

Supreme Court, has strongly affirmed the above concept of the

62-142 0 - 71 - 20
300

- 32 -

broadcaster's status as fiduciary to the public. In the first

proceeding (359 F.2d 994 (1966)), Justice Burger stated:

The argument that a broadcaster is not a

public utility is beside the point. True

it is not a public utility in the same sense

as strictly regulated common carriers or purveyors of power, tut neither is it a purely

private enterprise like a newspaper or an

automobile agency. A broadcaster has much

in common with a newspaper publisher, but he

is not in the same category in terms of

public obligations imposed by law. A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part

of the public domain; when he accepts that

franchise it is burdened by enforceable

public obligations. A newspaper can be

operated at the whim or caprice of its owners;

a broadcast station cannot. After nearly

five decades of operation the broadcast

industry does not seem to have grasped the

simple fact that a broadcast license is a

public trust subject to termination for

breach of duty. (p. 1003.)

Again, in the second proceeding (425 F.2d 543 (1969)) similar

language appears:

The infinite potential of broadcasting to

influence American life renders somewhat

irrelevant the semantics of whether broadcasting is or is not to be described as a

public utility. By whatever name or classification, broadcasters are temporary permittees--fiduciaries--of a great public resource and they must meet the highest standards which are embraced in the public interest

concept. The Fairness Doctrine plays a very

large role in assuring that the public resource granted to licensees at no cost will

be used in the public interest. (p. 584.)
301

- 33 -

In his 1966 decision, Justice Burger quoted with approval

from a report of the House Committee on Interstate and Foreign

Commerce, FCC, Television Network Program Procurement (H. R.

Rep. No. 281, 88th Cong., 1st sess. (1963)):

Under our system, the interests of the public

are dominant. ... Hence, individual citizens

and the communities they compose owe a duty to

themselves and their peers to take an active

interest in the scope and quality of the television service which stations and networks provide and which, undoubtedly, has a vast impact

on their lives and the lives of their children.

Nor need the public feel that in taking a hand

in broadcasting they are unduly interfering in

the private business affairs of others. On the

contrary, their interest in television programming is direct and their responsibilities

important. They are the owners of the channels

of television -- indeed, of all broadcasting.

(p. 20.)

In this connection, it is relevant to note the 1963

statement of Mr. Robert Sarnoff of NBC that the total investment in

television by American viewers was then 40 billion dollars, a figure

perhaps twenty times as large as the totl investment of broadcasters.

(FCC, Television Network Program Procurement, H.R. Rep. No. 281,

88th Cong., 1st sess., at page 57. Cited in Office of Communication

of United Church of Christ v. FCC, 359 F. 2d 994, 1002 (note 17).)

Thus far, this section has reviewed the general outlines of

broadcast regulation as it has been defined by the courts. From this

review, it is clear that:
302

- 34 -

1. The First Amendment right to broadcast is not comparable

to "the right of every individual to speak, write, or publish."

(Red Lion; NBC; supra.) A broadcaster is not a "purely private

enterprise, like a newspaper;" he is "not in the same category" as

a newspaper publisher in terms of public obligations imposed by law.

(Church of Christ, supra.)

2. The First Amendment does not prohibit broadcast regulation

concerning the content of programming. Such permissible regulation

includes the Fairness Doctrine which is specifically concerned with

the coverage of controversial issues of public importance and

requires that "coverage must be fair in that it accurately reflects

the opposing views." (Red Lion; FCC Editorializing Report, supra.)

3. Broadcasters are "proxies" or "fiduciaries" for the public

(Red Lin, Church of Christ, McIntire, supra.)

The matter presently Under inquiry by the Subcommittee has to

do with deception -- which may or may not involve actual fraud -- of

the public. As the following additional discussion will demonstrate,

the prevention of deception and fraud has always been held to be a

proper concern in the regulation of broadcasting. This concern is

expressed in statute and in FCC regulations and.rulings. Legislative concern with respect to possible deception being practiced

upon the listening and viewing public is entirely consistent with

the fiduciary duty which the broadcaster is held to owe to the

public. The following features of present law and regulation are

illustrative of various aspects of possible deception.

•
303

- 35 -

With respect to deceptive advertising, broadcasters are, of

course, bound by the provisions of the Federal Trade Commission

Act (15 U.S.C. sec. 45, 52) which prohibit deceptive trade practices,

including the dissemination of false and misleading advertising in

commerce. But the FCC has enunciated a special standard of care as

applying to broadcasters (Liaison Between FCC and FTC Relating to

False and Misleading Radio and TV Advertising, 22 FCC 1572 (1957)).

The FCC noted that the continued broadcast of advertising found to be

deceptive by the FTC would raise "serious questions" as to whether a

station was operating in the public interest. But the FCC also indicated that the licensee should exercise his own initiative to make

sure that his listeners and viewers are not subjected to such deceptive messages:

Micensees should nd',rely solely on the action

or inaction of the Federal Trade Commission, nor

should they suspend their own continuing efforts

in determining the suitability of advertising

material to be broadcast over their facilities.

Thus, advertising similar to that found to have

been deceptive should raise questions on the

part of the broadcast stations as to the propriety of such material.

During the late 50s, the public was subjected to programming

which purported to present bona fide contests of intellectual skill,

the so-called "quiz shows." The public's interest in these programs

was engendered by the high stakes involved and the representation

that the contests were authentic. When it appeared that these programs were not as they were being represented to the public, the

Legislative Oversight Subcommittee of the House Commerce Committee,
304

- 36. -

investigated the matter. This investigation resulted in the enactment of Section 509 of the Communications Act prohibiting fraud and

deception in the presentation of such programs.

This same concern with possible deception to the public is

reflected in the FCC's regul'ution governing mechanical reproductions

(47 C.F.R. 73.118, 73.288, 73.653):

(a) No mechanically reproduced program, whether

visual or aural, consisting of a speech, news

event, news commentator, forum, panel discussion,

or special event in which the element of time is

of special significance, or any other program in

which the element of time is of special significance and presentation of which would create,

either intentionally or otherwise, the impressignor belief on the part of the listening

audience that the event or program being broadcast is in fact occurring simultaneously with

the broadcast, shall be broadcast without an

appropriate announcement being made ...

In enacting Sections 317 and 508 of the Communications Act,

the Congress required that the public be informed whenever a

licensee or his employee receives anything of value in connection

with the broadcast of any matter. Section 317(a)(1) reads in part:

All matter broadcast by any radio station for

which all money, service or other valuable consideration is directly or indirectly paid, or

promised to or charged or accepted by, the

station so broadcasting, from any person, shall,

at the time the same is so broadcast, be

announced as paid for or furnished, as the case

may be, by such person ... .

The underlying rationale behind this enactment is that the

public has a legitimate interest in knowing the relevant circum-
305

- 37 -

stances under which material is broadcast. The FCC described this

legislative concern in the following language ("Applicability of

Sponsorship Identification Rules," Public Notice dated May 6, 1963).

With the development of broadcast service along

private commercial lines meaningful government

regulation of the various broadcast media has

from an early date embraced the principle that

listeners are entitled to know by whom they are

being persuaded. Thus, as far back as the Radio

Act of 1927 and continuing with section 317 of

the Communications Act of 1934 there has been an

unvarying requirement that all matter broadcast

by any station for a valuable consideration is

to be announced as paid for or furnished, and by

whom.

The FCC also requires that an announcement be made if any outside assistance is afforded in connection with either a political

program or one involving the discussion of controversial issues of

public importance. . (47 C.F.R. 73.119; 73.289; 73.654.)

In its present inquiry, the Subcommittee is concerned, among

other things, with allegations regarding deceptive editingtechniques

which effectually result in material misrepresentations being made

to the public by the broadcaster. In the Metromedia case

(14 FCC 2d 194 (1968)), the Commission found that a broadcast had

incorporated a distorted tape of an interview between former White

House Press Secretary Pierre Salinger and John P. Roche, special

assistant to President Johnson. The distortion consisted of inserting a question out of its original sequence, thus creating a deceptive impression. Specifically, a question from the studio audience

(
•

306

- 38 -

which was actually asked after Mr. Roche had left the studio was

inserted into the portion during which Mr. Roche was present.

This editing technique created the impression that Mr. Roche could

find no answer to the question. The Commission reprimanded the

broadcaster despite his assertion that the ,editing manipulation was

done without his knowledge by the program producer. The FCC stated:

In circumstances such as these, the licensee has

responsibility for exercising reasonable diligence

to prevent the broadcast of false or misleading

material. In the present case, Canaan Productions

[the actual producer of the program] concedes that

it was concerned with establishing "the identity

and personality" of Mr. Salinger rather than with

presenting a true picture to the public of what

actually took place during the discussion ofan

important public issue. ...[Y]ou seem to have

made no effort either to give your employees

responsibility for passing upon the content of

the program during its production or to acquaint

yourself with the manner in which the video tape

was later edited. The result was that an independent producer was able to engage in deliberate

distortion, for private reasons, of what purported

to be an uninterrupted discussion ... of important

public issues.

The Commission does not regard your actions here

as measuring up to the standard of responsibility

it expects of its licensees. This matter will be

considered further in connection with the next

application for renewal of license of Station

WTTG-TV.

It is not clear what significance the Commission was placing

on the factor of "deliberate distortion." It is clear that the

injury to the public would be the same regardless of the motivation

which resulted in the distortion to which the FCC objected.

•
307

- 39 -

It must be pointed out that the underlying philosophy of

this decision does not seem to have been adhered to by the Commission in its treatment of the CBS "Pentagon" documentary. The

Metromedia case, however, with its condemnation of the practice

of deceptive editing techniques to distort "what purported to be

an uninterrupted discussion ... of important public issues," is in

accord with the judicial decisions passing on the public interest

standard imposed on programming. Insofar as the Commission may

have departed from the principle of the Metromedia case in the

'Pentaton" matter, it is believed to be in error. Further discussion

of the FCC's possibly changing philosophy in this regard would be

beyond the scope of this memorandum.

Further discussion on the legal authority of the FCC and the

FTC, under then existing law, to prohibit deceptive broadcasting

practices will be found in the Report to the President by the

Attorney General on Deceptive Practices in Broadcasting Media, dated

December 30, 1959 (19 R.R. 1901). That report concluded that the

FCC had adequate authority to regulate in the area of deceptive programming practices:

It is true that the statutory provisions relating

to censorship and the First Amendment delineate

the outer limits of the Commission's powers. Yet,

within those limits considerable scope is left for

effective regulatory action. This would certainly

be so with respect to deceptive practices as opposed

to problems of taste.
308

40

Although the issue has never been squarely passed

upon by the Supreme Court, in every case in which

the question has been presented, the courts have

upheld the Commission's authority to concern itself

with a. licensee's program policies and practices.

No action by the Commission has ever been held by

the court to constitute censorship.or to violate

constitutional protections of freedom of speech or

of the press. (pp. 30-31)

The Attorney General's "Deceptive Practices" report also

affirmed the status of the broadcaster as a fiduciary of the public:

Broadcast licensees have had conferred upon them

a highly valuable privilege. In return, each

such licensee is expected to operate as a

"trustee for the public." (p. 43).

See also the memorandum to the FCC dated September 2, 1969,

by Henry Geller, Esq., General Counsel (reprinted at 20 RR 2d. at

p. 381.) The memorandum concluded that the Red Lion case, supra,'

constitutes a landmark decision, setting at rest the long-continuing

controversy as to the Commission's authority to 'interest' itself in

general program format and the kinds of programs broadcast by

licensees."

As already pointed out in this memorandum, all authority pertaining to the prerogatives and powers of the FCC apply with equal

or greater force to the Congress.

This section hasreviewed a number of judicial decisions, legislative enactments, agency regulations and rulings, and official reports.

They overwhelmingly demonstrate that the legislative concerns enumerated

by the Chairman in his April 20 statement fall well within the proper

scope of a Congressional inquiry.
309

- 41 -

The CBS assertion to the effect that its operations are the

equivalent of those of a newspaper is clearly erroneous in view of

the express language of the Supreme Court (Red Lion and NBC cases,

supra) to the contrary. Accepting the CBS contention that its

broadcasting practices must"cemain immune from Congressional inquiry

would clearly violate the "public trustee" status which the courts

have uniformly enunciated as pertaining to broadcasting. If the

public, acting through its elected representatives, cannot inquire

into the manner in which the broadcasting industry is fulfilling its

public trust, then licensees are in the legally anomalous position

of being trustees who are responsible to no one. Having been given

"a highly valuable privilege" ("Deceptive Practices" report, supra)

the broadcaster cannot be heard to insist that his affairs must

thereafter be screened from public scrutiny (or, as the CBS brief

would have it, "legislative surveillance").

This is not to say that theremay not be :instances wherein a

Congressional subpoena addressed to a broadcaster would be improper.

In the present case, however, the clear legislative concern is with

practices which rearrange and manipulate events which are then presented to the public as genuine. This, as the above authority demonstrates, is a legitimate matter for public, and therefore, Congressional, concern.

In this proceeding it is "the nature of the programs" and not

"the nature of the views of a broadcaster" which is under considera-

(
310

42

tion. (See Johnston Broadcasting Co. v. F.C.C., 175 F. 2d 351, 359

(D. C. Cir. 1949); Allen B. Dumont Laboratories •v. Carroll, 184 F. 2d

153, 156 (3d Cir. 1950), cert. den. 340 U.S. 929 (1951); while recognizing that section 326 of the Communications Act prohibits FCC censorship, the Court stated: "The Act itself demonstrates that Congress

was vitally concerned with the nature of the programs broadcast as

affecting the public good.")

For all of the above reasons, it is concluded that the legislative concerns enunciated by the Chairman in his April 20 statement

are valid and legitimate matters for Congressional inquiry, and would

be so held in a court of law.

C. The Free Press Guarantees Embodied in The First Amendment.

For purposes of this argument it will be conceded that televised news broadcasts are included within the First Amendment protections guaranteed to the "Press." It will also be conceded that

the Subcommittee's subpoena is included within the lawmaking process.

1. The First Amendment Right of Freedom of the Press is 

derived from and conditioned upon the Public Interest and Necessity 

for Preserving the Right of Free Speech. 

The First Amendment, which is the first of the Bill of Rights,

provides in part:

"Congress shall make no law ... abriding the

freedom of speech, or of the press ..."

Insofar as the press is an institution apart from individual

members of the reporting profession it is simply a business enter-
311

- 43 -

prise (Cf. Associated Press v. U.S. 326 U.S. 1 (1945)). The Bill

of Rights derives its justification and vitality out of the inherent and natural rights of the people, not out of the rights of

any business enterprise. The restriction upon governmental interference through the lawmaking process with the ability of the

press to seek out information and to publish that information is

intended to insure the right of freedom of speech. Freedom of

speech demands the ability not only to speak but also the ability

to hear and to be heard. This was pointed out by. Judge Learned

Hand in National Broadcasting Company v. U.S., 47 F. Supp. 940

(S.D.N.Y. 1942). In sanctioning the regulations of the FCC pertaining to Chain Broadcasting as necessary to preserve the freedom of speech of the listener, Judge Hand observed:

The interests whieh the regulations seek to

protect are the very interests which the

First Amendment itself protects, i.e., the

interests, first, of the "listeners," next

of any licensees who may prefer to be freer

of the "networks" than they are, and last,

of any future competing "networks." Whether

or not the conflict between these interests

and those of the "networks" and their

"affiliates" has been properly composed, no

question of free speech can arise. (At 946)

Thereafter, the Supreme Court, in affirming the decision of Judge

Hand, pointed out:

Freedom of utterance is abridged to many

who wish to use the limited facilities of

radio. Unlike other modes of expression,
312

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radio inherently is not available to all.

That is its unique characteristic, and

that is why, unlike other modes of expression, it is subject to governmental regulation. Because it cannot be used by all,

some who wish to use it must be denied ...

The right of free speech does not include,

however, the right to use the facilities

of radio without a license. The licensing

system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The

standard provided for the licensing of

stations was the "public interest, convenience, or necessity." Denial of a

station license on that ground, if valid

under the Act, is not a denial of free

speech. (319 U.S. at 226-27).

Without the guarantee of a forum to transmit free speech

any attempt to exercise the right of free speech itself would

be futile. Thus, the right of the press, as an institution,

to be free from governmental interference is derived from the

right of a free people to free speech. The press is free so

that:

a. the people may find access to a

forum of the expression of ideas, political

and otherwise; and

b. the people may find access to the

unrestrained expressions of others.

deTocqueville echoed this idea when he observed "the sovereignty

of the people and the liberty of the press may therefore be

regarded as correlative." Democracy in America, Vol. 1, p. 190

(Vintage ed. 1945).
313

- 45 -

The right of Congress to legislate restraints upon the freedom of the press when the exercise of that freedom comes into conflict with other essential elements of the public interest is well

established. The antitrust laws have consistently been determined

to be a permissible restraint upon the press. Thus, in Associated 

Press v. United States, 326 U.S. 1 (1945), the Supreme Court, in

affirming that "trade in news carried on among the states is ...

interstate commerce," sustained the enjoinment of the Associated

Press from engaging in practices in restraint of trade. In rejecting the Association's argument of First Amendment protection, the

court concluded:

It would be strange indeed, ... if the grave

concern for freedom of the press which prompted

adoption of the First Amendment should be read

as a command that the government was without

power to protect that freedom. The First Amendment, far from providing an argument against

application of the Sherman Act, here provides

powerful reasons to the contrary. That Amendment rests on the assumption that the widest

possible dissemination of information from

diverse and antagonistic sources is essential

to the welfare of the public, that a free press

is a condition of a free society. Surely a command that the government itself shall not impede

the free flow of ideas does not afford nongovernmental combinations a refuge if they impose

restraints upon that constitutionally guaranteed

freedom. Freedom to publish means freedom for all

and not for some. ... Freedom of the press from

governmental interference under the First Amendment does not sanction repression of that freedom

by private interests. The First Amendment affords

not the slightest support for the contention that

a combination to restrain trade in news and views

has any constitutional immunity. (At 20)
314

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See also, United States v. Times-PicAyune Publishing Co.,

345 U.S. 594 (1953) in which the Supreme Court, although not finding

a violation of the Sherman Act, did apply the provisions of the Act

to reach its decision. In Lorain Journal Co. v. United States,

342 U.S. 143 (1951), a newspaper was prohibited under the Sherman

Act from refusing to publish the advertisements of any subscriber

advertising on a competing radio station.

Similarly, the application of the National Labor Relations

Act to a press association has been determined not to contravene

the First Amendment guarantee of freedom of the press. Associated 

Press v. N.L.R.B. 301 U.S. 103 (1937).

The Federal mail fraud statutes have been upheld as a Constitutional limitation on the Freedom of the Press. In Donaldson v. Read 

Magazin Inc., 333 U.S. 178 (1948) the Supreme Court sustained the

right of the Postmaster General to regulate advertising by restricting

the receipt and dissemination of fraudulent mail by a magazine publisher. In reaching its conclusion, the court pointed out that:

A contention cannot be seriously considered which

assumes that freedom of the press includes a right

to raise money to promote circulation by deception

of the public. (At 192)

Similarly, the obscenity cases, while they can probably only be considered as sui generis, have permitted restrictions on publication in

the face of the First Amendment. Ginzburg v. U.S. 383 U.S. 463 (1966).
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- 47. -

The Federal Trade Commission Act has been judicially sustained

as against a claimed privilege of First Amendment protections. For

example, it has been held that regulation of false advertising does

not as such constitute an unconstitutional restraint on the expressions of opinions by sellers"as to the market worth of their products and that whatever slight impairment of speech may be involved

is far outweighed in importance by the need to protect the public

from deception. Regina Corp. v. Federal Trade Commission, 322 F 2d

765, 770 (3d Cir. 1963); E. F. Drew and Co. v. Federal Trade 

Commission, 235 F. 2d 735 (2d Cir. 1956), cert. denied 352 U.S. 969

(1957). As the Second Circuit observed in Drew:

We think it sufficient to state that Congress

can prohibit or control misleading advertising

under the postal fraud statutes ... or under its

commerce power ... without deprivation of First

Amendment rights. There is no constitutional ,

right to disseminate false or misleading advertisements. (At 740)

In the Investment Advisers Act of 1940 Congress required registration of investment advisers and the full disclosure of certain

fraudulent and manipulative practices. The essential purpose of that

legislation "is to protectthe public from the frauds and misrepresentations of unscrupulous tipsters and touts and to safeguard the honest

investment adviser against the stigma of the activities of these individuals by making fraudulent practices by investment advisers unlawful."

(H.R. Rep. No. 2639, 76th Cong., 3d Sess. 28 (1940)). Bona fide newspapers were exempted from the Act but not books or other publications

62-142 0 - 71 - 21
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not "of general and regular circulation." The constitutionality of

this provision as against a claim of First Amendment protection was

established in SEC v. Capital Gains Bureau, 375 U.S. 180 (1963).

Thereafter, in SEC v. Wall Street Transcript Corporation, 422 F. 2d

1371 (1970), the defendant refused to comply with an investigative

subpoena issued by the Securities and Exchange Commission pursuant

to the Investment Advisers Act. In opposing the subpoena, the

Transcript contended that any investigation would chill its exercise

of constitutionally protected rights of expression and that any probe,

which might seek some of its most confidential operating information,

would both deter its own editorial criticism of the Commission and

intimidate its subscribers and sources of information. In rejecting

this argument, the Court observed that:

the Investment Advisers Act does not on its

face abridge freedom of the press simply

because it may be applied to publications

which are classified formally as part of the

'press' ... (At 1373.

Finally, the Supreme Court itself, in Curtis Publishing Co. v. 

Butts, 388 U.S. 130 (1967), was confronted with the problem of

balancing society's "pervasive and strong interest in preventing and

redressing attack upon reputation" against society's interest in a

free press which "would advance truth, science, morality, and arts

in general as well as responsible government." In concluding that

the First Amendment protection of the Press is not absolute, the

Court observed:
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The fact thatdissemination of information and

opinion on questions of public concern is ordinarily a legitimate protected and indeed

cherished activity does not mean, however, that

one may in all respects carry on that activity

exempt from sanctions designed to safeguard the

legitimate interests of others. A business is

not immune from regulation because it is an

agency of the press. The publiSher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of

others. ... Federal Securities regulation, mail

fraud statutes, and common-law actions for

deceit and misrepresentation are only some

examples of our understanding that the right to

communicate information of public interest is

not 'unconditional.' (At 150)

Finally andmost importantly, there can be no honest discussion

of the freedom of the press without relating the exercise of that

freedom to the exercise of free speech. Persons who are presented on

the television medium have the right to the publication of their

speech, if not in forma intacta, at least in a manner consonant with

their original expression. Those persons appearing on television

news programs have the right to the accurate publication of their

speech and the viewers have the right to rely upon the accuracy of

that publication. Those speakers whose comments and observations

are materially altered by technological device have been denied

their right of free speech. Ironically, a governmental refusal to

challenge such a denial of free speech in a regulated medium becomes

governmental action and this action is, therefore, a governmental

denial of the right of free speech.
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2. Techniques of Electronic Manipulation Have Been Developed

which Facilitate the Presentation of Artificially Created Scenes as 

Objectively Observed Facts. 

To the viewer, his observation of an event recorded by a camera

strongly implies that the event being viewed occurred as recorded.

Simply stated, "seeing is believing." The viewer's unfamiliarity

with the highly sophisticated techniques available to the televised

medium places him at a serious disadvantage when analyzing that

which he believes he is seeing. The visual capture of an event by

a camera implies the elimination of that editorial process so

obviously a part of the process of recording events in the printed

medium. The viewer reasonably expects that the visual recording of

an event is a means of preserving for History's sake that event as

it occurred. Thus, the viewer is reluctant to accord the same

critical analysis to the visual reenactment of an event that he

accords to the printed word.

Splicing of film to show, for example, in a question and

answer series an answer given to a question not asked is a form of

"newspeak." The words of the speaker, which he can scarcely deny

uttering, by a shift of context are made to express whatever the

film editor wishes the speaker to express. By this means, negatives

may become positive; agreements, disagreements; and responsiveness

can be made to appear evasive.

Other techniques of splicing out of sequence can also create

speech when none exists. For example, it is not difficult to imagine
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- 51 -

a debate between two persons, at the close of which the studio

audience would be permitted to ask questions, If, during the

course of the questioning, one of the debaters left while the other

remained, the film of the questions and answers could be so

rearranged that the absence of one debater would not be noticed.

From his apparent silence in not responding to the observations of

the other debater, the absentee would seem to give the impression

of agreement or inability to refute the answer. In at least one

instance, the rearrangement described in this hypothesis actually

occurred (see Metromedia case, supra. p. 37 ).

Frequently, television interviews are conducted with a single

camera facing the interviewee. Thereafter, the interviewee may or

may not depart and the camera is reversed in order to film the

interviewer who then reasks the questions originally posed. This

reverse process readily permits a change in the general emphasis

of the question, thewice inflection and, of course, the sequence.

The deceptive potential of these and similar techniques of

electronic manipulation is in no way mitigated because it is

practiced by a large communications network rather than a government.

Disclosure of these techniques is a legitimate concern of the Subcommittee.

A publisher of a political tract may disseminate his ideas to

passersby at a street corner without interfering with the free expression of those passersby or of another publisher. On the other hand,

a broadcaster is limited by distance from point of transmission,
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signal strength and width of his allocated spectrum, as well as

natural and man-made interference. These limitations are the

basis for the power of Congress to legislate to protect the broadcaster. See e.g., Hearings on S. 1333 Before the Senate Committee 

on Interstate and Foreign Commerce, 80th Cong., 1st Sess., at 120,

126 (1947). This legislation is designed to best insure his fulfillment of his responsibility to transmit information to the public.

Red Lion Broadcasting Company v. F.C.C., 395 U.S. 267, 395 (1969).

Additional legislation may also be required to best insure that

legislation protecting broadcasters does not impede the free flow

of ideas which the First Amendment is intended to guarantee.

Broadcast journalism, precisely because it enjoys the benefits of a limitation of access by others, is not identical to Print

journalism. Red Lion Broadcasting Company v. F.C.C., supra, at 386.

Public access to television is severely constrained by law. See

Section IB, The Power of Congress to Regulate Broadcasting, supra.

In recognition of this limitation, Congress has required licensees

to devote a reasonable percentage of their broadcast time to the

presentation of news and programs devoted to the consideration and

discussion of public issues of interest in the community served by

the particular station. The ability to impose this requirement

on licensees to assure protection of the public interest implies

the ability to assure adequacy of that protection. This is the

issue to be decided in evaluating the subpoena of CBS.
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3. Because a Free Electorate Forms its Decisions on Matters

Which it•DeterMines tO be . FaCtual, the Artificial Transmutation of

Fact into Mon-fact without Disclosure Presents a Clear and Present

Danger to that Electorate.

The public relies on its informational media the press in all

of its forms, for the reporting of information on the basis of which

it may reach its decisions. Any decision-making process absolutely

requires the free flow of information. The "means for evaluating"

received information is essential for the functioning of that process

whether an investor is being asked to risk his money in the stock

market or a consumer is being urged to buy a product. This "means

for evaluating" is infinitely more important when it may determine

a political decision running to the very structure of the society.

ki artificial "newspeak" which can persuade the public of the

factual accuracy of non-fact has been created through technological

advancements. This becomes the means for manipulation of thought

for a predetermined goal. Recognition of the danger is not new.

Over a century ago, Abraham Lincoln pointed out that:

He who molds public sentiment goes much deeper

than he who pronounces decisions. He makes

those decisions possibly or impossible.

The position enjoyed by the television screen in news reporting is not that of primus inter pares. Rather, the impact of televised news is dynamically more pervasive than that of any other newsreporting medium. The dependence of the public on televised news is.
322

- 54 -

great. CBS itself draws this to the Subcommittee's attention

(brief, pp. 7-8). The statistics cited by CBS, as they appeared in

the November 2, 1970 issue of Broadcasting, were the result of an

industry-supported survey into viewing trends. The questions asked

by the pollsters in September 1970 and the responses were as follows:

First, I'd like to ask where you usually get

most of your news about what's going on in the

world today -- from the newspapers or radio or

television or magazines or talking to people

of where?

Television 60%

Newspapers 44

Radio 23

Magazines 8

People 6

Don't know or no answer 1

If you got conflicting or different reports of

the same news story from radio, television, the

magazines and the newspapers, which of the four

versions would you be most inclined to believe

the one on radio or television or magazines or

newspapers?

Television 50%

Newspapers 21

Magazines 6

Radio 11

Don't know or no answer 12

Which of the four versions would you be least

inclined to believe -- the one on radio, television, magazines or newspapers?

Magazines 28%

Newspapers 33

Radio 11

Television 9

Don't know or no answer 19
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- 55 . -

Furthermore, according to industry surveys, the body of data

developed by the pollsters between 1959 and 1970 shows:

In the face of mounting criticism of television

journalism from some politicians and the

intellectual elite, the public at large is depending more heavily than ever on television as

its primary sourct of news and is placing far

more confidence in television than in any other

medium ... . Except for a couple of slight

wriggles, the curves of television acceptance

have been rising ever since.

This data clearly establishes the public's reliance on television news for obtaining information upon which to base its decisions.

The effect of unreliable data, unless its unreliability is known, is

especially pernicious because it frustrates the ascertainment of truth.

The public is lulled into a false sense of reliability where reliability

does not exist. At the very least, the public is entitled to know the

true author of the representation made; i.e., the apparent speaker or

the film editor who deliberately misplaces the words to create a

"newspeak." Oliver Wendell Holmes pointed this out in The Autocrat

of the Breakfast Table when he observed:

We all have to assume a standard of judgment

in our own minds,either of things or persons.

A man who is willing to take another's opinion

has to exercise his judgment in the choice of

whom to follow, which is often as nice a matter

as to judge of things for one's self. On the

whole, I had rather judge men's minds by comparing their thoughts with my own, than judge

of thoughts by knowing who utter them. I must

do one or the other.

The Subcommittee must be concerned with protecting the right to

"do one or the other." The untrammeled ability to influence the
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decision-making process without disclosure is a denial of that right.

The danger to the public from manipulation of its political decision

is much more real, serious and far reaching than any danger from

false advertising or stock market touting.

II. SPECIFIC ARGUENTS ADVANCED BY CBS BRIEF 

The major points asserted in the CBS brief have already been sufficiently addressed by the review of legal authorities contained in

Section I of this memorandum. The purpose of the present section is

to discuss briefly some of the specific arguments raised by CBS.

A. Legislative Purpose and Scope of the Subpoena.

The argument has been made that the purpose of the Subcommittee's

inquiry, and the breadth of its subpoena, are both improper. The manner in which CBS sought to broaden the apparent scope and motivation

of the Subcommittee's inquiry has already been discussed above (see

page 12, et. seq.). The thrust of the argument is that CBS does not

choose to take at face value the statement of legislative concerns

provided by the Chairman on April 20, 1971. (See p. 5, CBS brief:

"Despite these disclaimers ...") In view of the modern cases which

bear upon the question of permissible breadth of legislative investigations and subpoenas, the CBS effort to broaden the scope of the Subcommittee's inquiry would have been unavailing even had it been successful. See Brown v. United States, 276 U.S. 134 (1928): Oklahoma 

Press Co. v. Walling, 327 U.S. 186 (1946); United States v. Morton

Salt Co., 338 U.S. 632 (1950); and Davis, Administrative Law,

Sec. 306, p. 183 (1958).
325

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The Morton Salt case, supra, involved the investigatory

authority of the Federal Trade Commission. The Commission's

demand for corporate records had been condemned as a mere "fishing expedition." But the Supreme Court upheld the Commission,

stating:

Even if one were to regard the request for

information in this case as caused by nothing more than official curiosity, nevertheless,

law-enforcing agencies have a legitimate right

to satisfy themselves that corporate behavior

is consistent with the law and the public interest. (338 U.S. at p. 652.)

Again, and perhaps unnecessarily, it is pointed out that the

prerogatives of the Congress are at least equal to those of its

administrative agencies.

As to the breadth of the Subcommittee's subpoena , it is

noted, preliminarily, that the subpoena of April 7, 1971, was

much narrower than those issued by the Subcommittee during previous

investigations into the program "Pot Party at a University" and

CBS' "Project Nassau." The attempt of CBS to belatedly suggest

that its compliance on those previous occasions was prompted by

allegations of criminal conduct can be dismissed out of hand.

(See brief, p. 26.) No such suggestion was made by CBS at the

time of the previous investigations. Moreover, it was made clear

on those occasions, as it has been in the present matter, that the

Subcommittee's concern was with the adequacy of the Communications

Act. The presence of alleged, or proven, criminal violations was
326

58

incidental to those concerns. Had it not been--that is, had

the Subcommittee been seeking information from CBS which related

solely to the criminal conduct in those matters--those previous

subpoenas might have been successfully challenged as going beyond this Subcommittee's vaiiid legislative concerns.

It is, therefore, clear that the present subpoena stands on

the same legal ground as the two previous subpoenas just referred

to. For this reason especially the Subcommittee should note carefully the clear implication to be found on page 26 of the CBS

brief that CBS reserves the right to challenge similar subpoenas

in the future. Such challenge could be formulated, as indeed it

has in the present situation, by the simple expedient of asserting

that compliance would "chill" the exercise of CBS' First Amendment

rights. Since CBS is a corporation whose business is communication,

such rationalizations will not offer any great challenge to ingenuity.

In any event, most of the CBS argument as to the breadth of

the April 7 subpoena (see CBS brief, p. 24 and p. 27, note) has

been rendered moot by the Subcommittee's action of May 26, 1971.

In that action the Subcommittee noted the receipt of certain information and materials from CBS and determined that these satisfactorily met the requirements of all but one of the paragraphs of

the April 7 subpoena. It accordingly rescinded the April 7 subpoena

and issued a new one which called for only the material still not

provided. In doing so, it made clear that the so-called outtakes
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- 59 -

included only those related to events or interviews actually

incorporated into the broadcast. This, for example, renders

irrelevant the CBS statement (p. 24) that speaks of "key confidential sources" being silenced lest they "risk being identified."

As already set forth in Section I-A, supra, the legislative

purpose of the Subcommittee's inquiry is clear, and the breadth

of the April 7 subpoena, now rescinded, and the May 26 subpoena

was appropriate to that purpose.

B. First Amendment Applicability to Broadcasting.

CBS asserts that "for all relevant purposes" the media are

to be treated identical with respect to the applicability of the

First Amendment. The CBS brief does not define what it contemplates by the words "all relevant purposes.." Whatever interpretation is placed upon those words, however, the statement is

clearly erroneous. This much is clear from the authorities which

have been referred to in Section I-B of this memorandum. In malOng

statements of this kind, the CBS brief falls into the "mechanical

jurisprudence" and "sterile argumentation" condemned by Justice

Frankfurter in his concurring opinion in Kovacs v. Cogper, 336

U.S. 77 (1949):

Some of the arguments made in this case

strikingly illustrate how easy it is to

fall into the ways of mechanical jurisprudence through the use of oversimplified
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formulas. It is argued that the Constitution

protects freedom of speech: freedom of

speech means the right to communicate, whatever the physical means for so doing; sound

trucks are one form of communication; ergo 

that form is entitled to the same protection

as any other means of communication, whether

by tongue or pen. Such sterile argumentation

treats society as though it consisted of bloodless categories. The various forms of modern

so-called "mass wmmunications" raise issues

that were not implied in the means of communication known or contemplated by Franklin and

Jefferson and Madison. Movies have created

problems not presented by the circulation of

books, pamphlets, or newspapers, and so the

movies have been constitutionally regulated.

Broadcasting in turn has produced its brood

of complicatedproblems hardly to be solved

ly an easy formula about the preferred position of free speech. (Citations omitted.)--

(Emphasis supplied.)

Television broadcasting, with its pervasive power and its

potential for electronic manipulation, presents a problem unique

to all,media. This aspect alone distinguishes it from the printed

media sufficiently to justify the Subcommittee's inquiry (cf.

Banzhaf v. F.C.C., 405 F.2d 1082 (D.C. Cir. 1968), cert. den. 396

U.S. 842 (1969), especially pp. 1100-1101).

The very nature of the printed media is that it attempts to

tell a story, describing an event with words. It does not purport

to recreate the event itself. Generally, the essentials of the

story will be told in the lead paragraph; the reader not only

knows, but expects, the account to be rearranged and abbreviated

for rapid digestion. Punctuation and words disclose when editing

has occurred. The reader is a second-hand recipient of the news,

and he knows it.
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The nature of television, on the other hand, is that it

purports to preserve the actual event, recreating it for the eye

and ear, giving the viewer the impression that he is a first-hand

observer of the news. It is this characteristic which gives television its unique quality, and provides an opportunity, in the

•

absence of appropriate disclosure, for employment of manipulative

techniques which might rob the viewer of reality.

TIME, in its June 7, 1971 "Essay" at page 57, commented on

this aspect of television during a discussion of differences in

the media:

Both TV and print journalists edit. Because

the camera proclaims "I cannot lie, I only

show what is there," TV editing is less obvious, but for that very reason it can provoke

more resentment, more of a sense of beiq

fooled, when it is noticed. All these (and

more) are distinctions too readily ignored.

The same thought has been expressed, somewhat more bluntly,

in the following language attributed to Malcolm Muggeridge:

[The camera is] the most easily manipulated

and plausible instrument for deceiving our

fellows ever to be devised.

Abuses in editing, such as transposition of questions and

answers in filmed interview, to cite but one example, go far

beyond the sanctity of communication protected by the First Amendment. For what is being done in such instances is not slanting,

or selective quotation; it is nothing less than a deceptive manipulation of the public's senses of sight and hearing. Visual and

aural reality are left on the cutting-room floor.
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In support of its position that "for all relevant purposes"

broadcasting is entitled to identical First Amendment protection

of other media, CBS cites a libel case which is clearly not in

point. Rosenbloom v. Metromedia, supra; (brief, P. 9; the case

is discussed on page 24 of this memorandum.). Moreover, it cites

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952), both for the

proposition (1) that differing characteristics in the media justify

varying First Amendment application (brief, p. 10), and (2) that

"the basic principles of freedom of speech and press, like the

First Amendment's command, do not vary." (Brief, p. 15.) With

respect to the second proposition, and not discused by CBS, the

Court specifically commented that each mode of expression presents

its own peculiar problems which could justify a modification of

the First Amendment treatment accorded it.

Clearly, the problem area of editing-discloure, unique to

television broadcasting, involves one "relevant purpose" wherein

that medium is not entitled to identical First Amendment treatment

accorded the print media. Congress not only has the right but the

duty to inquire into this area.

C. Right of the Press to Criticize the Government.

CBS cites numerous cases generally upholding the right and responsibility of the press to criticize the government and thereupon concludes that the Subcommittee's action is unconstitutional.

(Brief, pp. 16-20.) It is agreed that the press has this basic
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and invaluable right under our system and is free to criticize

the government. But the cases cited are irrelevant to the matter

at hand.

The Subcommittee's inquiry is concerned with the possible

use of deceptive electronic editing and manipulative techniques

and the implications, if any, on the laws governing broadcasting.

Specifically stated in the legislative concerns is the possibility that disclosure to the public might be found desirable in

instances wherein such deceptive techniques are employed. The

CBS argument on this point states that its right to be critical

of the government will be violated should the Subcommittee proceed with such an inquiry. This, in turn, assumes sub silentio 

that criticism of the government cannot be carried out via television without recourse to deceptive electronic techniques and,

further, that the use of such techniques must be allowed to be

employed without disclosure to the public. The mere statement

of the argument is sufficient to refute 'it.

D. Alleged "Chilling Effect" of Subcommittee Subpoena.

The CBS argument on this point closely parallels the argument raised against the Fairness Doctrine and its personal attack

provisions. As is well known, the Supreme Court rejected those

arguments in the Red Lion case, supra. In that case, it was contended that the result of these provisions would be to lead to

62-142 0 - 71 - 22
332

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broadcast self-censorship respecting matters of importance to

the public. The Court laid such arguments to rest in the following language:

That this'will occur now seems unlikely,

however, since if present licensees should

suddenly prove timorous, the Commission is

not powerless to insist that they give adequate and fair attention to public issues.

It does not violate the First Amendment to

treat licensees given the privilege of using .

scarce radio frequencies as proxies for the

entire community, obligated to give suitable

time and attention to matters of great public

concern. To condition the granting or renewal of licenses on a willingness to present

representative community views on controversial

issues is consistent with the ends and purposes

of those constitutional provisions forbidding

the abridgment of freedom of speech and freedom

of the press. Congress need not stand idly by

and permit those with licenses to ignore the

problems which beset the people or to exclude

from the airways anything but their own views

on fundamental questions. The statute, long

administrative practice, and cases are to this

effect. (395 U.S. 367, at 393-94.)

In the Red Lion case, it was at least possible to argue

that the Fairness Doctrine, and its personal attack applications,

placed a burden on the free speech of broadcasters by virtue of

the fact that they asserted a continuing obligation which applied

to the discussion of controversial issues. The reasons for rejecting that argument are all the more clear in the case of the

Subcommittee's subpoena . Unlike the Fairness Doctrine, the subpoena imposes no continuing burden beyond the provision of the

specific information called for therein.
333

- 65 -

The CBS brief makes a number of gratuitous assertions that

the subpoena will have an effect "on the journalist's information-gathering techniques as well as on the accessibility of news

sources," (brief, p. 24). But these assertions are not selfevident and the CBS brief makes no attempt to demonstrate how this

"chilling effect" is to operate.

It is quite clear, for example, that the Subcommittee's

inquiry does not relate to the "information-gathering techniques"

of the broadcast media. Moreover, even if it did, such a purpose

would not be improper from a legislative standpoint (cf. "Project

Nassau" investigation). In the present matter, however, the

inquiry is centered on electronic manipulative techniques which

take place after the "information-gathering" function has been

performed. It cannot be seriously argued that journalists will

be inhibited in seeking out information and interviews by the

knowledge that subsequent electronic rearrangement of the material

they gather might be subject to public scrutiny.

Moreover, the CBS argument seems to proceed on the basis of

a rather fundamental misconception as to the material called for

in the subpoena. Neither the now rescinded April 7 subpoena, nor

the present subpoena issued on May 26, deal in disclosure of "confidential sources." Nor do they call for any journalist's "notes"

(CBS brief, p. 24).
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There is also reference made to "background scripts"

(CBS brief, p. 20). It is not clear from the context just what

this term is supposed to encompass. The scripts and/or transcripts referred to in the Subcommittee subpoena, however, encompass simply the verbatim transcription of material which is

included in the film and recordings described in the subpoena.

As such, such scripts and transcripts (terms which are redundant

for the sake of completeness in describing the material desired)

would offer the Subcommittee no additional information than already

contained in the film and tape recordings themselves; although

they would provide such information in a more convenient form.

While the "chilling effect" argument has a superficially

appealing rhetorical ring, it is a specious argument in this •

instance. As indicated above, the subpoena is not designed, nor

will its effect be, to produce such an effect. It is directed

toward a limited information area regarding film-editing techniques utilized in one program. External evidence already reveals

that a prima facie case of deceptive editing exists. Since the

outtakes are relevant to a valid legislative purpose, as well as

being indispensible to carrying out that purpose, and since the

chilling effect is illusory, CBS' First Amendment argument in this

regard must fail.

41,
335

- 67 -

E. Asserted Equivalence of Outtakes to "Reporter's Notes."

CBS hinges much of its argument to the proposition that

outtakes "are the broadcast journalist's equivalent of the newspaper reporter's notes" and, therefore, should not be subject to

subpoena. (Brief, p. 25.) CBS cites no legal authority, there

being none, in support of this contention. Apart from the question

of whether a reporter's notes may be subject to subpoena (this in

itself is an unsettled question; see Caldwell discussion below),

no court of law has ever held that outtakes are the equivalent

of a reporter's notebook.

The images and sounds appearing on outtake materials are

those pertaining to actual events recorded for possible presentation to the public. As such, they cannot be equated to the private

thoughts and impressions of a reporter committed to a notebook.

Apart from government film, the outtakes in the Pentagon

documentary consist of films of public events and of interviews

with individuals who provided them for public broadcast. To give

one example, the speech of Colonel MacNeil was filmed at a public

gathering in Peoria, Illinois. Only a portion of the speech was

shown in the documentary. It is impossible to conceive of any

plausible theory by which the unshown parts of this public speech,

the outtakes, could be privileged or be the equivalent of a

reporter's private notebook.
336

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Extrinsic information indicates that the portion of

Colonel MacNeil's speech, shown in the documentary, was manufactured by selecting disconnected sentences and then splicing

them insequentially; and, further, that through such film editing

techniques the words were made to appear as if they had been

delivered exactly as shown in the broadcast. When such material

is broadcast to the public as bona fide evidence concerning an

actual event, it is relevant to inquire whether the public should

have a right to be assured that such evidence is what it purports

to be, or be advised when it is not. CBS should not be permitted

to obstruct such a public inquiry by claiming a privilege with

respect to outtakes that is nonexistent.

F. CBS Reliance on Caldwell Case.

CBS relies most heavily upon Caldwell v. U.S., 434 F.2d

1081 (9th Cir. 1970), as supporting its contention that the subpoena is illegal for First Amendment reasons. (See citations,

brief, pp. 22, 24, 27.) But Caldwell is clearly distinguishable

from the standpoint of holding and facts, and instead of buttressing the CBS position, it tends to undermine it:

1. Caldwell is unsettled law. Indeed, in early May, 1971,

the Supreme Court announced it would hear argument during the Fall

Term on Caldwell and two related cases from the Supreme Courts of

Massachusetts and Kentucky. The two state courts, one case involving the subpoena of a television newsman-photographer, held
337

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contrary to Caldwell and did not recognize any journalistic

immunity from subpoena. See In the Matter of Paul Pappas,

Supreme Judicial Court of Massachusetts, No. 14,690, January 29,

1971, and Branzburg v. Pound, Court of Appeals of Kentucky,

No. F-213-69, November 25, 1969.

In the Pappas case, supra, the Supreme Judicial Court of

Massachusetts considered the Caldwell case and specifically

rejected it:

Were we to adopt the broad conclusions

[footnote omitted] of that decision, that

a newsman's privilege exists because of

the First Amendment, we would be engaging

in judicial amendment of the Constitution

or judicial legislation. Requiring a newsman to testify about facts of his knowledge

does not prevent their publication or the

circulation of information. ... We are of

the view also that the opinion unnecessarily expresses, in terms of newly discovered constitutional absolutes, interests

of the news media, which (so far as reasonably requiring protection) may be guarded

by sound judicial discretion and administration. ... We adhere to the view that

there exists no constitutional newsman's

privilege, either qualified or absolute, to

refuse to appear and testify before a court

or grand jury [footnote omitted]. The obligation of newsmen, we think, is that of

every citizen, viz, to appear when summoned,

with relevant written or other material when

required, and to answer relevant and reasonable inquiries. (Slip opinion, pp. 12-13.)

The Supreme Court of Kentucky (Branzbur9 case, supra) has

also refused to follow Caldwell.
338

- 70 -

2. In any event, the holding in Caldwell is a very narrow

one and recognizes only a "qualified privilege" which could have

been overcome by a showing of compelling need by the government

(Caldwell, p. 1089). The strict limitations of Caldwell are evident in the words of the court:

Finally we wish to emphasize what must already

be clear: the rule of this case is a narrow

one. It is not every news source that is as

sensitive as the Black Panther Party has been

shown to be respecting the performance of the

"establishment" press or the extent to which

that performance is open to view. It is not

every reporter who so uniquely enjoys the trust

and confidence of his sensitive news source.

Clearly, the court viewed its decision in Caldwell in a much

more restricted sense than does CBS.

3. The Caldwell decision turned largely upon the fact that

sensitive news sources would have been destroyed if Caldwell were

required to respond to the subpoena to appear before the Grand

Jury for testimony. No such sensitive or confidential sources

are present in the Pentagon documentary, In this regard, the

CBS narrator said in introducing the program:

We selected three areas for concentration:

direct contacts with the public, Defense

Department films, and the Pentagon's use of

the media--the press and television. We

sought no secret files, no politicians

pleading special causes, no classified documents. We looked only at what is being done 

for the public--in public. (Emphasis

supplied.)
339

- 71 -

4. Outtakes are not the equivalent of the reporter's notes

in Caldwell. (See E, above.)

5. In Caldwell, the court observed that further testimony

by Caldwell would result in no additional information than that

already developed -- "a barren performance." (Caldwell, p. 1089.)

By contrast, the outtakes are indispensable to a meaningful evaluation of the subjects under consideration. These would include, of

course, the doctoring techniques used in connection with the Henkin

interview and the MacNeil speech.

6. In Caldwell, the court said the newsman's "qualified

privilege" could have been overcome by a showing of a compelling

need (Caldwell, p. 1086). By contrast, there is no CBS privilege

to overcome and, moreover, there is a compelling need for the outtakes. These constitute the best evidence by which to address the

legislative concerns of the Subcommittee.

7. Another key factor in Caldwell, which does not exist

in the CBS case, is the court's concern that if a reporter were

required to make available information obtained in his capacity

as a news gatherer, it would have the effect of converting him,

after the fact, into an irtvestigating arm of government. By

comparison, the Subcommittee has no interest in the information

developed by CBS in connection with the documentary. It is only
340

- 72 -

interested in outtake film from the standpoint of evaluating

manipulative electronic techniques, e.g., the Henkin interview.

This same concern over making the newsman an unwilling

adjunct to the criminal investigation process is the basis for

the Attorney General's guidelines on subpoenaing newsmen. The

CBS reliance on these guidelines as being applicable to the Subcommittee's subpoena power is therefore misplaced.

8. Finally, the original subpoena in Caldwell calling

upon him to produce his notes, etc. was withdrawn. The issues

now involved in Caldwell do not include a subpoena duces tecum,

and do not involve calling for the production of notes.

For all the above reasons, the Caldwell case, so heavily

relied upon by CBS, is deemed irrelevant and non-persuasive with

respect to the issues involved in the Subcommittee's subpoena.

G. Absence of Allegations of Illegal Conduct.

CBS emphasizes that when it furnished the outtakes in

"Project Nassau" an additional factor was present, i.e., an

accusation involving violation of criminal laws. (Brief, p. 26.)

This is, of course, factually incorrect inasmuch as the Subcommittee made no charges of any kind in initiating its "Project

Nassau" investigation. Yet CBS suggests that this ingredient--

allegations of law violations--might be pivotal in whether it

would comply with a Congressional subpoena.
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- 73 -

Acceptance of this ill-founded position could lead to

dire consequences. Indeed, it could mean that CBS would not

furnish the outtakes to "Project Nassau" should it have occurred

today. This is so because (a) if a violation of criminal statute

is requisite for exercise of Congressional subpoena power on a

broadcaster and (b) since no alleged violation of a criminal

statute within the jurisdiction of the Commerce Committee was

present in "Project Nassau", then (c) CBS could assert that the

Commerce Committee is without jurisdiction in the matter.

The fact is that Congressional subpoena power, exercised

in connection with a valid legislative purpose--and relevant

thereto, is not dependent upon violations of criminal laws. (See

pp. 6-7, supra, this memorandum.)

III. SUMMARY AND CONCLUSIONS

To briefly summarize the contents of this memorandum, the

following points have been established (references are to pages

in this memorandum):

1. The right of Congress to investigate, and to compel the

production of information, is inherent in its authority to legislate. The central elements are (a) a valid legislative purpose;

that is, the inquiry must be addressed to matters concerning which

Congress could legislate, and (b) information or testimony sought

must be relevant to the legislative purpose (McGrain, see p. 3).
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- 74 -

2. The right of Congress to investigate does not depend

upon accusations of wrongdoing, or alleged violations of criminal

law (see Oklahoma Press, p. 5).

3. This. Subcommittee has been authorized by the Congress to

conduct investigations and studies on all matters within the jurisdiction of the House Commerce Committee; that jurisdiction includes

the regulation of broadcasting (see pp. 15-16).

4. With respect to the applicability of the First Amendment,

broadcasting is not identical to other means of communication (NBC

case, p. 20; Red Lion case, p. 21).

5. The legal status of a broadcaster cannot be equated to

that of a newspaper publisher (NBC, p. 20; Red Lion, p. 21;

Church of Christ, p. 33).

6. Regulation may validly concern itself with matters of

program content (NBC, p. 20; Red Lion, p. 21, Johnston Broadcasting, p. 23.)

7. Broadcasters are legally considered "proxies" or

"fiduciaries" for tha-public and, as such, must act "in the public

interest." (Red Lion, p. 21; Ch6rch of Christ, p. 33; McIntire,

p. 31).

8. Regulation of broadcasting so as to prohibit deception

to the public is a well-recognized exercise of the regulatory power

(FTC-FCC Liaison, p. 35; 47 C.F.R. 73.653 ("Mechanical Reproduction"

Disclosure), p. 36; Communications Act, Section 317, 508 and 509,

pp. 36-37; 47 C.F.R. 73.654 (Disclosure of Outside,Assistance in
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- 75 -

Connection with Political Programming), p. 37; Metromedia case,

p. 37; Attorney General's "Deceptive Practices in Broadcasting

Media" Report, p. 39).

9. The First Amendment is primarily concerned with the rights

of individuals as opposed to those of business enterprises. The

First Amendment rights of individual members of the public take

precedence over those of the broadcasters (Associated Press, p. 43;

Red Lion, p. 21; FCC Editorializing Report, pp. 27, 30; NBC case

(opinion of L. Hand, D. C. Court of Appeals), p. 43; NBC case

(Supreme Court), p. 20).

10. The right of Congress to legislate constraints upon those

who communicate information to the public when their activities

collide with the public interest is well-established '(Associated 

Press, p. 43; Regina Corporation, p. 47; E. F. Drew, p. 47; Wall 

Street Transcript case, p. 48; Curtis Publishing Co., p. 48).

11. Freedom of the press is a derivative right conditioned

upon the public interest in preserving freedom of speech (Associated 

Press, p. 43).

12. Techniques of electronic manipulation facilitate the presentation of artificially created scenes as objectively observed

facts (see Metromedia case, p. 37).

13. Because decisions bearing upon political and social issues

are founded upon what is believed to be factual information, the concealment of techniques which misrepresent such factual information

presents a clear and present danger (see e.g., statistical data, p. 54).
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- 76 -

This memorandum has explored the legal authorities relevant

to the specific issue at hand:

In the light of the First Amendment, has the

Congress the right to subpoena non-broadcast

materials related to a television documentary,

when those materials are relevant to a question of deceptive practices and do not involve

confidential or secret sources?

The issue has been resolved in the affirmative. As the cases

clearly demonstrate, the right of the Congress to investigate,

and to compel the production of information, is inherent in its

authority to legislate. This power may be exercised with respect

to subject matter at least as broad in scope as the laws which

Congress might consequently enact (see pages 2 - 17).

Existing broadcast law and regulations are replete with provisions similar to the measures presently under consideration by

the Subcommittee. In addition, the full Committee presently has

bills before it whose consideration would be materially aided by

the information sought from CBS. Acceptance of the CBS argument

in this matter would invariably call into question large areas of

existing broadcast law and regulations. It would also result in

the Commerce Committee being forced to attempt to evaluate and

pass upon pending legislation in a vacuum.

The CBS brief attempts no demonstration that the information

subpoenaed by the Subcommittee would be irrelevant to any valid

legislative purpose. Theabsence of this essential element in the

CBS response vitiates the force of its arguments.
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The material called for in the Subcommittee's subpoena is

relevant to the legislative purpose addressed in this inquiry.

It affords the best, and perhaps sole evidence on which to adequately determine the existence, extent, and nature of certain

deceptive manipulative techniques. While it is not necessary

to sustain a Congressional inquiry of this kind that actual legal

violations be alleged, or suspected, in the present case external

evidence indicates the existence of gEstionable broadcast practices

having severe implications on the public interest.

The arguments by which CBS has sought to dispute the power of

the Subcommittee to require the materials described in its subpoena

revolve around the failure of CBS to distinguish its operations from

those of a newspaper. This distinction, however, is firmly ftxed

in the law. A secondary thread of argument advanced by CBS depends

upon a restatement of the legislative purposes behind the Subcommittee inquiry in an attempt to broaden them beyond the permissible

scope of Congressional action. The attempt has been carried through

by a process of out-of-context quotation from the statement of

legislative purpose provided to CBS. In view of the case law which

accords very broad scope to Congr.essional inquiries, the attempt is

deemed to be of no legal consequence.

The acceptance of CBS' interpretation of the law would necessarily preclude any similar inquiry by the FCC. The FCC has

enunciated a limited goal in exercising its regulatory function in
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- 78 -

this area involving alleged deception of the viewing public.

The Commission has stated that it will not even investigate charges

of distorting or staging news except in those instances wherein

"there is substantial evidence that a station's management or news

management has deliberately engaged in such a practice." (FCC

36th Annual Report, page 34). By this, the Commission has reference to "extrinsic" evidence (FCC 36th Annual Report, page 2).

Analysis and criticism of the FCC's position in this respect would

be beyond the scope of this memorandum. It should be noted,

however, that this regulatory policy would be utterly defeated

by the acceptance of the position taken by CBS in this matter.

Since the FCC would presumably seek to make inquiries in the public

interest in a case wherein there was substantial extrinsic evidence

of staging of news which was (a) deliberate, and (b) by management,

it would be met by the same arguments from CBS as are advanced

against the Subcommittee's inquiry into the "Pentagon" documentary.

The result would be that the FCC could not make inquiries necessary

to uphold the public interest even in those instances which met its

prerequisite conditions.

The defiance of a duly authorized Congressional subpoena is

particularly unsupportable coming from a corporation which, by

virtue of its broadcast licenses, is impressed with the legal status

of a trustee and fiduciary for the public. If such a trustee can

defy the right of the Congress, the collective representative of

the people, to inquire into matters touching on the exercise of its
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- 79 -

fiduciary duty, the concept - upheld in many court decisions -

has been rendered illusory. A trustee who is answerable to no one

is a trustee in name only. It is idle, of course, to suppose that

complex and basic inquiries can be conducted by individual members

of the public. It is only through their elected representatives,

to whom they have entrusted the conduct of the public business,

that the people can effectively act.

Conclusions 

If, as CBS now maintains, a broadcast licensee cannot be

required to provide information as to how it is fulfilling its

public trust, the longstanding fiduciary status clearly enunciated

by the courts has been rendered illusory.

The prevention of deception of the public has been addressed

in a number of provisions already in the law. While the Subcommittee may determine not to recommend legislation addressed to the

area of deception via electronic transposition and manipulation, the

inquiry is valid inasmuch as it addresses an area in which the

Congress, if it chose, could legislate validly. The supposed

identity between broadcasters and newspaper publishers has been

repeatedly and emphatically rejected by thecourts.

In the present matter, the investigatory function is addressed

to a valid legislative purpose, and the information required of

CBS is relevant to that purpose. The Subcommittee has clearly

informed Dr. Stanton and CBS of this legislative purpose, and

explained the relevancy of the information required to be produced.

62-142 0 - 71 - 23
•

348

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For all of the facts and reasons stated above, it is concluded

that under existing law the Subcommittee is entitled to compel the

production of the materials described in its subpoena and that the

refusal by CBS to comply with the subpoena dated May 26, 1971 is

without legal justification.

r •
APPENDIX H

COLUMBIA BROADCASTING SYSTEM, INC.,

New York, N.Y., June 29, 1971.

HOD. HARLEY 0. STAGGERS,

House of Representatives,

Washington, D.C.

DEAR MR. CHAIRMAN: During my testimony before your Subcommittee on June

24 (transcript pages 160-161), I requested, and was given, permission to submit

for inclusion in the record a supplementary opinion from CBS counsel in support of their conclusion that filmed outtakes, scripts and transcripts, and other

non-broadcast materials are the broadcast journalist's equivalent to a reporter's

notes and, therefore, protected against compelled production by government to

the same extent as a reporter's notes. Accordingly, I enclose for that purpose

a copy of an opinion letter from Wilmer, Cutler & Pickering to Columbia Broadcasting System, Inc., dated June 29, 1971.

Sincerely,

FRANK STANTON.

WASHINGTON, D.C., June 29,1971.

COLUMBIA BROADCASTING SYSTEM, INC.,

New York, N.Y.

DEAR Sins: We are writing to supplement the conclusion reached in our

opinion letters of April 27 and June 15, 1971, that filmed outtakes, scripts and

transcripts, and other non-broadcast materials are the broadcast journalist's

equivalent to a reporter's notes, and therefore protected against compelled production by government to the same extent as a reporter's notes.

Supplementation is necessary in light of two facts: (1) a New York court

recently decided a case protecting filmed television outtakes from compulsory

process; and (2) counsel to the Special Subcommittee on Investigations of the

House Interstate and Foreign Commerce Committee, in a legal memorandum

to the Subcommittee recently made available to us, has concluded (p. 67) that

"no court of law has ever held that outtakes are the equivalent of a reporter's

notebook," and denies that there is any legal authority to support our conclusion.

Our opinion letter of June 15 explains why, as a matter of logic and fact,

there is no difference between reporters' notes and outtakes. We there said

(PA 5-6)

"A filmed account of actual events is the result of a series of individual journalistic judgments about what to film, when to film, what to emphasize and what to

ignore. Journalists almost always record more than they eventually report; the

process of selection and organization is what gives shape and point to the final

product. Outtakes are thus as individualistic as the 'private thoughts and impressions written by a reporter,' and if produced would be equally revealing as

to the editing process that creates the published report. And a filmed interview

is constitutionally indistinguishable from an interview in which a newspaper reporter makes his own notes or employs a recording device."

Moreover, there is legal authority to support this conclusion. While the law

on this point is sparse, there is at least one statute directly on point, and there

are at least three cases (including the New York case) which recognize the

equivalency between reporters' notes and a broadcaster's outtakes. Section 79—h

of the New York Civil Rights Law provides that

"no professional journalist or newscaster . . . shall be adjudged in contempt

by any court, the legislature or other body having contempt powers, for refusing

or failing to disclose any news or the source of any such news coming into his

possession in the course of gathering or obtaining news for publication or to be

published in a newspaper, magazine, or for broadcast by a radio or television

transmission station or network. . . ."

(349)
350

The law defines "news" as meaning "written, oral or pictorial information or

communication . . .," and "newscaster" is defined as a 'person who . . . is engaged in analyzing, commenting on or broadcasting, news by radio or television

transmission." (Emphasis supplied.)

Pursuant to this statute, which explicitly recognizes the equivalency between

"notes" and "outtakes," the New York State Supreme Court, sitting in Extra

and Special Trial Term, in Ontario County (per Justice Frederick Marshall) , on

June 23, 1971, quashed a subpoena directed to CBS and intended to force production of filmed outtakes relevant to the criminal prosecution in the case of People

v. Davis.

The second case involves a California Court's interpretation of Section 1070

of the California Evidence Code, which protects all journalists (including,

specifically, broadcasters) against contempt judgments for their refusal to disclose their sources, as preventing compelled production of television outtakes.

See People v. Rios, No. 75129 (criminal), Superior Court for State of California,

City and County of San Francisco, July 20, 1970. The Court also found that the

First Amendment prohibited such compulsion. In the third case, an Illinois trial

court has reached the same conclusion, on First Amendment grounds, without

statutory support. People V. Dohrn, Indictment No. 69-3808, Circuit Court of

Cook County—Criminal Division, May 20, 1970.*

COLUMBIA BROADCASTING SYSTEMS INC.,

New York, N.Y., July 7, 1971.

Hon. HARLEY 0. STAGGERS,

House of Representatives,

Washington, D.C.

DEAR Mn. CHAIRMAN: In addition to the supplementary opinion from CBS

counsel which I forwarded to you on June 29, I request that the enclosed additional material be made part of the record of the Subcommittee's hearings on

June 24, 1971.

Sincerely,

FRANK STANTON.

Transcript reference: page 38, lines 2-8 [p. 89, this record.]

The question concerning CBS's policy on requests by members of the public

to view outtakes was covered by succeeding testimony (page 39, lines 1-7), which

makes clear that as a general matter CBS does not provide outake material to

private individuals.

With respect to interviews appearing in documentary broadcasts, on request

of the interviewee a transcript of his entire interview will be made available to

him after the broadcast.

Transcript reference: page 53, Lines 2-16 [p. 99, this record.]

The inaccuracy of the statement, attributed by Time Magazine to David Buksbaum, is shown by Mr. Buksbaum's April 7 letter to Time and its May 25 reply

to him. Copies of these letters follow:

ABC Nows,

New York, N.Y., April 7, 1971.

Miss NANCY CHASE,

Letters to the Editor, Time Magazine, Time-Life Building, Rockefeller Center,

New York, N.Y.

DEAR MISS CHASE: Ironically, I was misquoted in your story on the controversy

concerning television news film editing (April 12). I'm quoted as saying, "When

we edit, it never gets out of sequence. And if someone would edit out of sequence, the guy ought to be fired." I was speaking only about the "ABC Evening

News" and what I actually said was, "When we edit, we never take quotes out

*Aside from the California statute, there are analogous statutes in ten states, which

protect the confidentiality of newsmen's sources and make no distinction between broadcast journalists and news reporters. Ala. Code Recompiled, tit. 7, § 370 (1960) ; Ariz. Rev.

Stat. Ann., § 12-2237 (Supp. 1969) ; Ark. Stat. Ann. § 43-917 (1964) ; Ind. Ann. Stat.

§ 2-1733 (1968) ; Ky. Rev. Stat. § 421.100 (1962) ; La. Rev. Stat. § 45 :1451-54 (Cum.

Supp. 1969) ; Md. Ann. Code, Art. 35, § 2 (1965) ; Mont. Rev. Codes Ann., tit. 93, ch. 601-02

(1964) ; N. Mex. Stat. Ann. § 20-1-12.1 (1953, Supp. 1967) ; Pa. St. Ann. tit. 28, § 330

(1958).
351

of sequence so as to change their context. And if anybody did it, he ought to be

fired." I think the essential word is context. It should be obvious from all of this

that quotes, whether in print or on film, demand loving editorial care to keep

their context correct—especially quotes about quotes.

Sincerely,

DAVID BUKSBAUM,

Producer. ABC Evening News.

TIME,

New York,ff ay 25,1971.

Mr. DAVID BUKSBAUM,

Producer, ABC Evening News,

American Broadcasting Co., New York, N.Y.

DEAR Mn. BUKSBAUM: You have certainly pointed up an important difference

between television and press journalism: our correspondent did not hear you

correctly and therefore, we quoted you incorrectly in our April 12 story, "The

Art of 'Cut and Paste'." We entirely agree with you that the word "context"

changes the meaning of what you said, and we're only sorry that we couldn't

publish your letter in our column in order to set the matter right.

As you rightly say, quotes demand loving editorial care to keep their context

correct. There is, however, a world of difference between a mistake and a deliberate omission and in this case we very much regret an inadvertent mistake.

Sincerely,

MARIA LUISA CISNEROS.

Transcript reference: page 68, line 21, et seq. [p. 106, this record.]

Responsible journalists who agree that it would be appropriate to edit a question and answer interview so that—without distorting the interview—an answer

to one question is used in whole or in part in connection with an answer to another question, include the following:

Edward J. Murray, President-Elect of the American Society of Newspaper

Editors. Mr. Murray was formerly Editor of the Arizona Republic and in

September, will become Associate Editor of the Detroit Free Press and

Chief Editor of the Knight News Wire.

William Arthur, Past President of Sigma Delta Chi, Chairman of the

Executive Committee of the American Society of Magazine Eklitors, and

Editor of Look Magazine.

However, merely enumerating the names of journalists would obscure the central issue raised by this line of questioning. Obviously, no journalist would subscribe to an editing practice which results in "deception." Any responsible journalist would subscribe to an editing practice which does not. Editing practices

can, of course, be abused; they are appropriately used when they compress an

interview without distorting its sense. For example:

Question. Do you know Hr. Smith?

Answer. Yes.

Question. How long have you known Mr. Smith?

Answer. I have known Mr. Smith for 20 years. There would be nothing deceptive in editing the interview as follows:

Question. Do you know Mr. Smith?

Answer. Yes, I have known Mr. Smith for 20 years. It is fair to state that many

responsible journalists would employ such an editing technique without questioning its legitimacy. Thus, the issue is not whether an answer can be "put over"

to some question which had been asked previously, but whether it is done so as

to fairly summarize the substance of the interview.

In order to ensure that no misleading impressions are derived from the editing

of question and answer interviews, CBS on June 28 included as part Of its compendium of "Operating Standards" a provision which requires that if an answer

to an interview question in a documentary broadcast is derived in part or whole

from answers to other questions, "the broadcast will so indicate either in lead-in

narration, bridging narration lines during the interview, or appropriate audio

lines."
352

Transcript reference: page 109, line 4, et seq. [p. 125, this record.]

Mr. Shoup's question about the position of the Association of American Publishers is answered by the further letter of the Association's president, Mr.

Sanford Cobb, sent to the Chairman on July 1. A copy of that letter follows:

JULY 1, 1971.

Hon. HARLEY a STAGGERS,

Chairman, Special Subcommittee on Investigations, Committee on Interstate and

Foreign Commerce, House of Representatives, Washington, D.C.

DEAR CONGRESSMAN STAGGERS: My attention has been drawn to pages 109

through 113 of the transcript of the hearings on Thursday, June 24, before your

subcommittee in which reference is made by Mr. Shoup to a letter directed by the

Association of American Publishers to yourself as Chairman of the Subcommittee, in support of the position of the Columbia Broadcasting System.

I wish to go on record to the fact that the communication directed to you by

myself, as President of the Association, was undertaken in full conformance with

the policy and by-laws of this Association and is not simply a statement of my

personal opinion.

It is important that this point be made clear since my letter to you appears

to have been entered into the record of the hearings. The content of the letter is

a clear statement of policy regarding freedom to read which was adopted by

both predecessor organizations to the present Association of American Publishers

many years ago, but I should add that the specific letter in question was discussed and dispatched in full conformance with our Association policy.

Sincerely,

SANFORD COBB, President.

Transcript reference: page 150, lines 15-16 [p. 146, this record.]

CBS sent 176 letters, the text of which can be found at page 149, lines 12-18,

to journalism schools and their faculty members.
Mr. RICHARD S. SALANT,

President, CBS News,

New York City, N.Y.

APPENDIX I

ACCURACY IN MEDIA (AIM),

Arlington, Va., March, 20, 1971.

DEAR MR. SALANT : Our own analysis and the analysis of others of the CBS documentary, "The Selling of the Pentagon," broadcast February 23, 1971 indicates

that there were a number of specific factual inaccuracies in the documentary.

We would appreciate having your comments on the following points.

1. CBS stated: "The Pentagon . . . will still spend $30 million this year on

public affairs—an amount more than 10 times greater than what it spent to tell

people about itself just 12 years ago."

Query: The Department of Defense informs us that the $30 million figure for

the current fiscal year includes substantial expenditures of a type that were

specifically excluded from the $2.8 million budget of FY 1959. The Department

states that for this reason it is misleading to compare the two budget figures in

the way CBS did. Does CBS agree that the two figures are not strictly comparable

for the reasons given by the Department of Defense?

2. CBS stated: "A special, still unpublished report for the prestigious 20th

Century Fund estimates the real total at $190 million." CBS then showed a

graph comparing this figure of $190 million with the news budgets of the three

commercial television networks, noting that combined these total $146 million.

Query: Has the unpublished report of the 20th Century Fund been reviewed by

competent independent analysts familiar with the Defense Department budget?

IIas the Defense Department had an opportunity to comment on this report and

the way in which the $190 million figure was calculated? Does this figure include

expenditures on such things as training films, as suggested in your letter to me,

dated Mach 10, 1971? If so, is it legitimate to count the cost of training films for

the military forces as an expenditure of the Defense Department "to tell people

about itself?" If the report has not been subjected to critical review by competent independent experts, does CBS consider it to be legitimate to use this

figure, even with qualifications, as an indicator of Departmental expenditures on

public information?

3. CBS stated: "The Pentagon has a team of colonels touring the country to

lecture on foreign policy."

Query: Is this an appropriate description of the group from the Industrial

College of the Armed Forces in light of the following facts : (a) in addition to

four colonels and a Navy captain, the team includes a State Department foreign

service officer; (b) the briefings this group gives cover 33 topics, including foreign policy; (c) the briefings are designed primarily to educate Reserve officers,

not the general public; and (d) the briefings are given at seven different locations throughout the country to make it possible for Reserve officers in various

parts of the country to participate with a minimum of travel expense?

4. CBS stated, with reference to the ICAF briefing in Peoria, Ill.: "The invitation was arranged by Peoria's Caterpillar Tractor Co., which did $39 million

of business last year with the Defense Department."

Query: We are informed that the seminar in Peoria was not arranged by the

Caterpillar Tractor Co., but by the Association of Commerce, which provided the

auditorium and other facilities. The meeting was co-chaired by an officer of the

Caterpillar Tractor Co. and by the owner of the Ace Hardware Store of Peoria.

Does CBS dispute this and hold to its contention that the meeting was arranged

by Caterpillar Tractor Co.? If so, what is its evidence?

5. Following a statement by Roger Mudd of CBS that the Army has a regulation barring personnel from speaking on foreign policy implications of U.S involvement in Vietnam, CBS showed a Marine colonel giving a six-sentence statement with the implication that this was contrary to regulations.

(353)
354

Query: Our information is that the statement the colonel was shown as giving

is actually a synthetic production of CBS, created by taking sentences from

widely separated places in the colonel's speech and joining them together to make

what appeared to the viewer to be six consecutive sentences. We are informed

that the sentences used by CBS came from the following pages of the briefing

text:

sentence 1, page 55

sentence 2, page 36

sentence 3, page 48

sentence 4, page 48

sentence 5, page 73

sentence 6, not indicated

We are further informed that sentences three and four were quotations from

Prime Minister Souvanna Phouma of Laos and that this was so indicated by the

speaker but omitted by CBS to make is appear that these were the speaker's own

words. We are informed that the scripts from which the colonel and others were

speaking were all cleared in advance by the Defense Department and other

appropriate government agencies, including the Department of State. Would you

not agree that it is totally improper to synthesize statements as was done in this

case? Could this not be considered a violation of Article IV (23) of the NAB

Television Code, which states: "No program shall be presented in a manner

which through artifice or simulation would mislead the audience as to any material fact?" Was it the intention of Roger Mudd's introductory comment to imply

that What followed was in violation of army regulations? If so, would it not have

been appropriate to describe the clearance process for these scripts in order to

avoid any reflection on the individual officers?

6. CBS stated that military speakers "traverse the country shaping the views

of their audiences."

Query: Does CBS have specific information about the success military speakers

have in "shaping" the views of those to whom they speak? How does this compare with the "shaping" done by other speakers, including such campus favorites

as Tom Hayden and Bernadette Devlin?

7. CBS devoted a substantial part of the program to the Joint Civilian Orientation Conference, describing the visit of 64 prominent civilians to key military

installation, including a visit to North Carolina where a weekend war game was

staged. CBS shows part of the war games, but at no point in the broadcast did

it indicate that this was not being put on solely for the benefit of the 64 prominent civilians. The impression was given that these individuals should properly

have been billed for the cost of the war game. CBS stated: (The cost of the tour)

"does not include the amount spent on elaborate briefings, the war game itself,

nor the expenses of several thousand servicemen who performed for the civilians

along the way."

Query: Is this not misleading, since the Defense Department states that the

war game was planned and executed for military training and study purposes

and that it lasted three days? The Joint Civilian Orientation Conference tour

is said to have observed it for only one of the three days and that others who

observed it, none of whom were mentioned by CBS, were 450 military personnel

from the Strike Command operational and training bases, 200 members of ROTC

units and about 165 local civilians. Would not the viewers have obtained a more

accurate understanding of this operation and its purpose if these facts had been

mentioned?

8. CBS. devoted nearly one-fourth of "The Selling of the Pentagon," as

measured by the printed transcript, to films made by the military. It stated

that over 300 films a year are made by the Pentagon and that the annual cost

of making these movies is over $12 million. It said that most of the films were

"made originally for troop information, but a large number is later released

for public showing."

Query: According to the Defense Department, in FY 1970 the amount spent

on films made specifically for public information purposes was only $30,000.

Why was this fact not stated by CBS, rather than the $12 million figure which

includes films made for troop information, research and development, recruiting

and medical and religious use? Do you not agree that the use of the $12 million

figure gives a possible false impression about the amount spent on public information films, especially in a medium like TV, where the viewer cannot backtrack and reflect on all the qualifying remarks? The Defense Department states
355

that only a very small percentage of all the films included in the $12 million

figure are cleared for public release. If this is true, is not this figure irrelevant

to the subject of the documentary in question? The Defense Department points

out that six of the seven films discussed by CBS were made solely to fill troop

information requirements. Would not it have given a more accurate picture to

the viewers if you had mentioned this fact?

9. In introducing a Defense Department film on Vietnam, CBS stated: "The

Pentagon helped John Wayne make "The Green Berets." John Wayne helped

the Pentagon make this film in Vietnam."

Query: Was it the intention of this comment to suggest that John Wayne's

willingness to narrate the film in question was a quid pro quo for Defense Department assistance in filming "The Green Berets?" This is the inference many would

draw from the statement. The Department of Defense informs us that the two

films are entirely unrelated, and that Mr. Wayne's participation in "A Nation

Builds Under Fire" was a last minute substitution that resulted when another

actor became ill and was unable to narrate the film as planned. The Department

states that the application from Mr. Wayne for assistance with "The Green

Berets" was treated no differently than other requests of this type and that

Wayne Productions reimbursed the Department for the expenses incurred.

Does CBS have any valid reason to support the implication that there was a

tie-in between Defense Department assistance with "The Green Berets" and

Wayne's assistance with "A Nation Builds Under Fire?" If not, would you not

agree that the implication is unfair?

10. After showing John Wayne summing up the record of communist murder,

assassination and terror in Vietnam, CBS stated: "Not only movie stars have

aided Pentagon propaganda."

Query: Was it the intention of CBS to imply that the statement that John

Wayne was shown as making about communism was "Pentagon propaganda?"

What is the definition of propaganda that the authors of this statement had in

mind? Would any factual description of the record of communist oppression

be labeled "propaganda" under this definition? Was there any intention to convey

the impression that the statement was not factually accurate, and if so, in what

respects does CBS believe it to be inaccurate?

11. After showing Walter Cronkite making a statement in a Defense Department film in which he describes the spread of aggressive communism in Europe,

Asia and Cuba, CBS states: "On a policy level, the Pentagon says it has discarded the rhetoric of confrontation. But city by city, public showing by public

showing, the language and symbols of the early 60's are still being widely distributed in the 70's." It goes on to say that films narrated by Walter Cronkite

and Chet Huntley are still being shown "even though Walter Cronkite and Chet

Huntley may now disagree with the intent of the films they narrated."

Query: Has CBS ascertained that its employee, Walter Cronkite, now disagrees with the statement he made in the film shown about the record of communist aggression over the past thirty years? If so, why did you say that Mr.

Cronkite "may now disagree" rather than that he does now disagree. If Mr.

Cronkite is still of the opinion that communism has shown aggressive tendencies

and that defense against it is necessary, why did you imply that this may no

longer be his view?

What is the meaning of "the rhetoric of confrontation?" Does this mean that

the Defense Department has agreed that it will no longer discuss the history

of the past thirty years insofar as this might imply that the communists have

shown aggressive tendencies? Does this include refraining from criticism of such

post-1962 events as the invasion of Czechoslovakia? What is the official statement that announced the abandonment of "the rhetoric of confrontation?"

12. CBS stated: "In an excerpt from a film called `Road to the Wall,' the

Pentagon has James Cagney tell of a Communist plan that encompasses even

more than the world."

Query: Is it true that "Road to the Wall" was produced by CBS and was

described in a CBS press release as "an historical treatment of the Communist

Party in operation throughout the world . . .?" In view of this is it not inaccurate to say that the Pentagon had Mr. Cagney make the statement quoted?

Would it not be more accurate to say that CBS had Mr. Cagney make the

statement?

13. After showing part of a film called "Red Nightmare" CBS stated, "Although the Pentagon labels them informational, these films contain a high pro-
356

portion of propaganda, as well as an obsession with monolithic communism. Tax

money financed all of them . .

Query: Again, what is the definition of propaganda that is being applied in

this documentary? Do the excerpts from the films shown contain evidence of

propaganda by this definition, whatever it may be? Since the films selected by

CBS were selected from among the several hundred films made by the Defense

Department each year precisely because they are films that deal with communism, what is the significance of the statement that these carefully selected films

shown on the broadcast "contain . . . an obsession with monolithic communism?" Did CBS think that films dealing with communism ought to discuss subjects

other than communism? Or is the implied cirticism related to the adjective

"monolithic ?" Does CBS believe that the crushing of freedom in Czechoslovakia

in 1968 in the era of "polycentric communism" was essentially different from the

crushing of freedom in Hungary in 1956 in the era of "monolithic communism"

and that this should be reflected in Departmental films on communism?

14. CBS states: "It has been more than a decade since the national policy of

peaceful coexistence replaced the harsher rhetoric of early cold war years."

Query: From what year and with what policy statement does CBS date the

beginning of "the national policy of peaceful coextence?" Since it is stated that

this happened sometime before early 1961, it must have antedated the Bay of

Pigs invasion, the Cuban missile crisis, the erection of the Berlin Wall, the

passage of the Tonkin Gulf Resolution, the crushing of the Czech liberation movement and the confrontation by proxy in the Middle East. Could it possibly be

that in speaking of the adoption of "the national policy of peaceful coexistence"

more Ithnn a decade ago, CBS was referring to the announcement of this policy

by N. S. Khrushchev on November 6, 1957? Does CBS agree that this is a term

used by the communists with a very special meaning in an effort to reconcile

current policies with Lenin's well known statements that war between the two

systems was unavoidable?

15. After the sentence quoted in #14 above, CBS stated: "But to the filmmakers at the Pentagon, with at least 12 million dollars a year to spend, 1946

seems to have lasted a whole generation."

Query: Is there not an implication in this sentence that the bulk of the $12

million spent by the Defense Department on films each year is devoted to the type

of films that CBS concentrated on? If not, why was the $12 million figure introduced into the script in this context? What is the significance of the year 1946?

Is the implication of this that serious problems with the communist countries terminated in that year and that the Pentagon has failed to recognize the change

for the last 25 years? Would it not be proper to remind your viewers that the film

CBS made for the Defense Department in 1962, "The Road to the Wall" was made

in the year after the construction of the wall began? Is it the implication of the

CBS statement quoted above that this event and is significance should have been

ignored by he Defense Department because the Cold War ended 15 years earlier?

16. CBS showed Assistant Secretary of Defense Jerry Friedheim conducting

a daily morning press briefing. It begins by saying that Mr. Friedheim does not

tell all that he knows and would not have his job long if he did. It then shows

Mr. Friedheim being unresponsive to three successive questions and responding

with only one or two words to two other questions.

Query: Since the Defense Department states that Mr. Friedheim made nine

announcements and responded to approximately 34 questions at the briefing filmed

by CBS, would you say that the excerpts from his briefing that CBS broadcast

were representative of Mr. Friedheim's total performance at that briefing? Was it

just by chance that CBS chose to show Mr. Friedheim dealing with three questions

that concerned security matters that he was not at liberty to discuss? Is it true,

as the Pentagon states, that these three questions were the only ones out of the

34 asked that Mr. Friedheim declined to answer? Were these questions in fact

asked consecutively, or were they selected and rearranged by CBS to convey the

impression that non-responsiveness was characteristic of Mr. Friedheim's press

briefing, as the introductory remark by Roger Mudd might have led one to believe?

Would it not have given the viewer a better understanding of the responses if it

had been explained that the negative responses were required because the data

requested was classified?

17. CBS aired a small portion of an interview with Daniel Z. Henkin, Assistant

Secretary of Defense for Public Affairs. By rearranging Mr. Henkin's words, CBS

had Mr. Henkin respond to a question about the purpose served by displays of
357

military equipment at state fairs and shopping centers in these words: "Well I

think it serves the purpose of informing the public about their Armed Forces.

I believe that the American public has a right to request information about the

Armed Forces, to have speakers come before them, to have questions, and to understand the need for our Armed Forces, why we ask for the funds that we do ask

for, how we spend these funds, what we are doing about such problems as drugs—

and we do have a drug problem in Armed Forces. What we are doing about the

racial problem in the Armed Forces, and we do have a racial problem. I think the

public has a valid right to ask these questions."

Query: Is this not a synthetic answer to the question? Is it not true that all but

the first sentence of the answer as shown by CBS was actually part of a much

longer response to this question by Mr. Mudd: "Do you regard the display of military equipment in the country and the instant availability of military speakers

at Kiwanis and Rotary and so forth as excessively militaristic?" Would you not

agree that understanding of Mr. Henkin's explanation of the purpose served by

military exhibits was not improved by omitting an important part of his reply and

substituting his reply to an entirely different question? Could this not be considered a violation of Article IV (23) of the NAB Television Code?

18. After having created a synthetic and seemingly inept answer to Mr. Mudd's

first question, CBS then followed with a question which appeared to be a follow

up to the first question, but which actually was asked after four other questions

had been asked. Mr. Mudd said: "Well is that sort of information about the drug

problem you have and the racial problem you have and the budget problems you

have, is that the sort of information that gets passed out at state fairs, by sergeants who are standing next to rockets?" Mr. Henkin replied: "No, I wouldn't

limit that to sergeants standing next to any kind of exhibits. I thought we were

discussing speeches and all." In the broadcast, CBS deleted the second sentence

of Mr. Henkin's reply and substituted one sentence extracted from his reply to an

earlier question. The substitute sentence was this: "Now there are those who contend that this is propaganda! I don't—do not agree with this." This statement

had been made in reference to Mr. Henkin's statement, not used by CBS, that the

Defense Department has an obligation to discuss with the American public the

problems that we confront, problems such as the increasing Soviet threat.

Query: Could this rearrangement of Mr. Henkin's words, without informing

the viewers, be considered a violation of Article IV (23) of the Television Code?

Was not the purpose in dropping the second sentence of Mr. Henkin's actual

reply to cover up the fact that the intervening discussion had been dealing with

military speakers, not exhibits of military hardware?

20. CBS stated: "Using sympathetic Congressmen, the Pentagon tries to

counter what it regards as the anti-military tilt of network reporting. War heroes

are made avRilable for the taped home district TV Reports from pro-PentRgon

Politicians. Here Rep. F. Edward Hebert of Louisiana asks Major James Rowe, a

Green Beret and former POW what keeps the Viet Cong fighting."

Query: What evidence does CBS have that the Pentagon arranged for Major

Rowe to be interviewed by Congressman Hebert? Congressman Hebert has asserted that the program was entirely his own idea, and that he interviewed Major

Rowe in order to give his constituents in Louisiana an opportunity to see Major

Rowe, who had been imprisoned by the Viet Cong for five years and had made a

sensational escape, facts which CBS did not mention in describing Major Rowe to

its viewers. Congressman Hebert states that as far as he knows, no one in the

Pentagon hierarchy even knew in advance of the plans to have Major Rowe on

his program. He is on record as deeply resenting the suggestion that he was

"used" by the Pentagon. Does CBS have any evidence that would substantiate

its charges in any way? Does it have information that would suggest that war

heroes such as Major Rowe would not be available to appear on programs with

Congressmen who are hostile to the military, such as Senator Fulbright?

21. CBS shows a brief scene from a military briefing in Saigon in which the

military briefing officer declines to answer a question. CBS introduces this with

this comment: "The most popular phrase at these sessions, however, needs no

expl anation."

Query: Did CBS film the entire briefing from which this excerpt was taken?

How many questions were asked at the briefing and how many were answered

with "no comment?" Were any announcements made at the briefing? Did the

questions which the briefer refused to answer deal with classified military

Information?
358

22. CBS summed up with this peroration by Roger Mudd: "On this broadcast

we have seen violence made glamorous, expensive weapons advertised as if they

were automobiles, biased opinions presented as straight facts. Defending the

country not just with arms but also with ideology. Pentagon propaganda insists

on America's role as the cop on every beat in the world."

Query: Was the violence made as glamorous as that children are exposed to

daily on CBS television programs? Would not the question of whether a statement was a "fact" or a "biased opinion" depend on the bias of the person making

the judgment? Would not some say that the "biased opinions" heard on the

program were those of the CBS commentator? Did CBS intend to deprecate the

use of ideology in the defense of the country? Would you disagree with Garfleld's

statement: "Ideas are the great warriors of the world, and a war that has no

Idea behind it is simply a brutality ?" "Can you cite any evidence to back up the

statement that Pentagon propaganda insists on America's role as the cop on

every beat in the world? Is the Pentagon insisting that the U.S. play a military

role in the Middle East? In Africa? In Eastern Europe?

23. CBS stated: "This propaganda barrage is the creation of a runaway bu•

reaucracy that frustrates attempts to control it."

Query: In making this statement was CBS aware of the fact that cuts in Defense Department budget requests for the current fiscal year were made both by

the Office of Management and Budget and the Congress? The cuts for public

information activities are said by the Department of Defense to total $12 million.

This does not suggest that the bureaucracy is beyond control.

I regret having to trouble you with so many questions, but I think you will

agree that it is important that these questions be cleared up. As Roger Mudd

said early in "The Selling of the Pentagon," "Nothing is more essential to a

democracy than the free flow of information. Misinformation, distortion, propaganda all interrupt that flow." Accuracy in Media believes that "The Selling of

the Pentagon," upon careful analysis contains a great deal of misinformation

and distortion that interrupts the free flow of information. Your detailed comments are earnestly requested.

Sincerely yours,

BENJAMIN GINZBTJRG,

Executive Secretary.

ACCURACY IN MEDIA (AIM),

Arlington, Va., April 5, 1971.

Mr. RICHARD S. SALANT,

CBS News,

New York City, N.Y.

DEAR MR. SALANT : I was very sorry to learn that you do not choose to attempt

to reply to the question, AIM raised about "The Selling of the Pentagon" in m37

letter of March 20, 1971. As you note, that letter has been entered in the Congressional Record and has been discussed in the press. It has aroused wide interest, and we believe that the public is entitled to know what answers CBS has

for the questions raised. I recall that you stated in your TV statement on March

23rd that you could answer all the questions that had been raised. You dealt

with only a few of them on that occasion, ostensibly because of the limitations

of time. However, I and others were led by your statement to assume that the

answers to the other questions that you did not tackle would be given to the

public without delay.

We are especially eager to learn your defense of the practice cited in points

5, 17 and 18 of my letter of March 20. We note that you have had some correspondence with the Washington Post on this matter, but we do not think that

you, Mr. Frank and Mr. Friendly have satisfactorily explained the ethical justification of creating synthetic quotations. We intend to continue to press this matter through the NAB and the FCC. We have been pleased to note that the editors

of the Washington Post agree with the AIM position on this issue.

I do not believe that the release of our letter on the same day that it was delivered to you constitutes a valid reason for ignoring it. While this is not the

usual AIM procedure, it is not an uncommon practice, nor is there anything questionable about it. As I pointed out in my telegram, your imminent appearance on

TV to discuss this matter made it desirable, in our view, to put the AIM questions

before both you and the public. I should note that it took CBS over one and a

4
359

half months to reply to our critique of the Cuba documentary last fall. We do

not believe that such leisurely treatment of serious criticism is at all defensible.

If errors are to be corrected, it is important that this be done as quickly as

possible, while the memory of the original program is still fresh. In view of this,

public release of the critique at the time it is made may well be the best policy

for AIM to follow.

Finally, I am sorry that you think our critique had a polemical tone. The

problem is that the documentary was highly polemical. We felt that some of the

questions we asked were necessary to bring out this fact. Innuendo and loaded

words are difficult for the critic to handle; they cannot be treated in the same

way as straight factual misstatements. Loaded words like "propaganda" and

phrases that are based on an unstated but controversial assumption, like "obsession with monolithic communism," were scattered throughout "The Selling

of the Pentagon." I believe that it is appropriate for AIM to ask for definitions

and for the spelling out of the assumptions in such cases. If doing so gave a

polemic cast to some of the points we raised, it is clear that this was only a reflection of the polemical character of the subject documentary.

We shall inform our supporters of your intention to delay replying to our

questions. They will be disappointed, and I fear this will not enhance the reputation of CBS for credibility and for concern about "the free flow of information," which, as Roger Mudd said, is so important in a democracy. I hope that you

will reconsider and favor, not us, but the public with the answers to all the questions which you promised your viewers nearly two weeks ago.

Sincerely yours,

BENJAMIN GINZBURG.

APPENDIX J

WILMER, CUTLER & PICKERING

900 SEVENTEENTH STREET, N. W.

WASHINGTON, D. C. 20006

June 15, 1971

Columbia Broadcasting System, Inc.

51 West 52 Street

New York, New York 10019

Dear Sirs:

You have asked for our opinion as to whether Columbia Broadcasting System,

Inc. (CBS) is obligated to comply with the subpoena issued on May 26 by the

Special Subcommittee on Investigations of the House Interstate and Foreign Commerce Committee, relating to its investigation of "The Selling of the Pentagon."

The May 26 subpoena calls for the personal appearance of Frank Stanton,

President of CBS, for the purpose of giving testimony. Like the withdrawn subpoena of April 7 that it replaces, it also commands the production of "film, workprints, outtakes, sound-tape recordings, written scripts and/or transcripts utilized"

in connection with "The Selling of the Pentagon." Unlike the withdrawn subpoena,

the new subpoena is "limited to all such materials relating to the actual broadcast and

[does] not include such materials relating to segments not shown. . . ."

We have reached the following conclusions:

(1) Since our opinion letter of April 27, 1971, a new decision of the Supreme

Court has made even more clear the proposition that broadcasters are protected

by the First Amendment, for all relevant purposes, in the same way that other

forms of journalism are protected.

(2) The Subcommittee's press release of May 25 and the letter accompanying

the subpoena of May 26 show no alteration of the Subcommittee's fundamental

assertion of the power to investigate, through compelled process, how CBS news

personnel edited "The Selling of the Pentagon," as an aid in its formulation of

legislation regulating editing practices and edited broadcasts.

(3) Although slightly narrower in scope than the April 7 subpoena, the new

subpoena has an unconstitutional chilling effect upon the exercise of First

Amendment rights.

( 361 )
362

Accordingly, we have reached the same conclusions concerning the new subpoena

as those set forth in our opinion of April 27, 1971, a copy of which is attached for

your convenience. In our opinion, the subpoena is in conflict with the First Amendment. As a result, CBS is under no legal obligation to supply the materials demanded,

and Dr. Stanton is under no legal obligation to answer questions designed to obtain

the information the Subcommittee seeks pursuant to its stated goals.

We shall discuss, first, the significance of the June 7, 1971 Supreme Court decision in Rosenbloom v. Metromedia, Inc., 39 U.S.L.W. 4694 (June 7, 1971), which

reenforces our view that in all relevant respects the First Amendment is applicable

to broadcast journalism. We shall then discuss our reasons for concluding that the

Subcommittee's changes in the scope of the subpoena, and its newly advanced arguments in support of its demands, do not alter the unconstitutional chilling effect that

would be created were CBS compelled to comply.

I. The Rosenbloom Decision And The First Amendment Rights Of Broadcasters

In Rosenbloom, the issue facing the Supreme Court was whether the rule of

New York Times Co. V. Sullivan*—prohibiting libel recoveries for comment about

public figures in the absence of a showing of actual malice or knowing disregard of

the truth—should be applied when a radio station broadcast information about an

individual, not himself a public figure, involved in an event of public or general

interest. The Court upheld a lower court decision denying the right to recover, on

the ground that the New York Times rule governed.

Rosenbloom is the first Supreme Court case directly involving the applicability

of the New York Times rule to utterances of a news broadcaster on a station licensed

by the rederal Communications Commission. Although the members of the Court

were divided over the application of the New York Times rule to a libel action in

which the plaintiff is not a public figure, all of the Justices clearly believed that

for all relevant purposes First Amendment rights fully apply to federally licensed

broadcasters.

Mr. Justice Brennan, announcing the judgment of the Court, noted that the

"petitioner does not question that the First Amendment guarantees of freedom of

speech and freedom of the press apply to. . . newscasts." 39 U. S. L. W. at 4695 n. 3.

And he announced the holding as being that

"a libel action, as here, by a private individual against a licensed radio station

for a defamatory falsehood in a newscast relating to his involvement in an

event of public or general concern may be sustained only upon clear and

convincing proof that the defamatory falsehood was published with knowledge

*376 U. S. 254 (1964).
F

363

that it was false or with reckless disregard of whether it was false or not."

(Emphasis supplied.) Id., at 4702.

This holding was the culmination of an analysis that emphasized the importance of

the New York Times rule as a means for assuring "breathing space" for journalistic

exercise of First Amendment rights and for preventing unwarranted governmental

actions threatening to chill those rights.

In a concurring opinion, Mr. Justice White stated that "New York Times gives

the broadcasting media and the press the right not only to censure and criticize

officials but also to praise them and the concomitant right to censure and criticize their

adversaries," and that "the First Amendment gives the press and the broadcast media

a privilege to report and comment upon the official actions of public servants in full

detail. . . ." 39 U. S. L. W. at 4705. (Emphasis supplied.) Mr. Justice Black, in

another concurring opinion, stated his familiar position that libel judgments "against

the news media" are unconstitutional "even when statements are broadcast with

knowledge they are false." Id., at 4703. (Emphasis supplied.) And Mr. Justice

Harlan's dissent indicated that he sees no difference between "publishers" and "broadcasters" and would treat them in the same way under the First Amendment, subjecting both to a libel standard of reasonable care. Id., at 4708.

Thus, four of the five opinions, speaking for a clear majority of six Justices,*

expressly treated news broadcasts as identical to newspapers. And it may fairly be

concluded that every Justice believed that the First Amendment guarantees broadcasters the same protection against chilling effects on the gathering or reporting of

news that it guarantees to any other journalistic medium.**

As our opinion letter of April 27 indicates, numerous courts (including on

many occasions the Supreme Court) have stated prior to Rosenbloom that there

is no difference, for any relevant purpose, between broadcasters and other media of

the press. The Supreme Court's decision in Red Lion Broadcasting Co. v. FCC,

395 U. S. 367 (1969) was thought by some to cast these earlier statements in doubt.

But the Rosenbloom decision makes crystal clear that Red Lion cannot be read as

depriving broadcasters of "the freedom of the press" with respect to what they broadcast in the first instance, or as a ruling entitling the Government to regulate broadcasters in a manner that chills this freedom. Red Lion holds only that the need to

* Mr. Justice Douglas did not participate in the decision of this case, but Mr. Justice White indicated his

belief that Mr. Justice Douglas would have voted with Mr. Justice Black. Id., at 4704.

** The remaining opinion of Mr. Justice Marshall (Mr. Justice Stewart concurring), did not address specifically the question of whether the facts in Rosenbloom raised any different First Amendment issues because the

report had been broadcast rather than published in the printed press. However, in a case marking a major

extension of the New York Times rule, which produced sharp disagreement among members of the Court as to

what the appropriate limits of that rule for journalists should be, if these Justices believed that different First

Amendment standards apply to broadcasters than to print journalists, they would undoubtedly have explicitly

set forth such a belief.

62-142 0 - 71 - 24
364

license broadcasters permits reasonable government regulation of what broadcasters

must present as a consequence of what they broadcast in the first instance, in order

to ensure "fairness" in the discussion of controversial issues.* The Court in Red

Lion itself expressly stated that the case would be different if the rules under review

had affected what broadcasters reported in the first instance. 395 U. S. at 396.

Rosenbloom is that different case, and holds that the First Amendment is fully

applicable.

If libelous comment broadcast about public affairs cannot be subjected to official

penalties, non-libelous comment must certainly deserve an even more protected status.

Legislation that is designed to deter "distortions" or to control "editing practices" in

broadcast news reports, by imposing sanctions for or regulations upon comment about public events that falls short of malicious libel, could not withstand constitutional

scrutiny.

II. The Chilling Effect Of The Subpoena For Testimony And Documents

Whether or not the Subcommittee can devise constitutional legislation regulating

the manner in which broadcasters must edit the news, the Subcommittee cannot, in

our opinion, enforce the present subpoena in aid of that objective.

As Rosenbloom makes clear, the First Amendment protects broadcasters and other forms of press media against actions intended to have or likely to result in a

chilling effect upon the exercise of their First Amendment rights. Our letter of April

27 outlines the chilling effect upon news reports about public events that the Subcom- mittee's prior subpoena threatened to cause. The chilling effect of being required by compulsory Congressional subpoena to disclose the complete details Of the editing

process is obviously far greater than the chilling effect of a court judgment for damages—the government action held unconstitutional, absent malicious libel, in Rosenbloom. The chill is greater because the awesome powers of Congress transcend

the limited powers of the private litigant, and all journalists will be inhibited by the

threat imposed by legislative surveillance and its potential consequences.** The

in Red 

*In 

Lion 

Rosenbloom, Mr. Justice Brennan's opinion raises questions even as to whether the decisive element

of reply requirement 

was indeed the scarcity of broadcast frequencies. For he suggested that states could adopt a right

them," 

to ensure "that private citizens will . . . be able to respond adequately to publicity involving

recoveries. 

and that institutionalizing a right of reply is constitutionally preferable to permitting libel damage

applied against 

39 U. S. L. W. at 4700. It had previously been thought by some that rights of reply could only be

may ultimately 

broadcasters, pursuant to Red Lion, but Mr. Justice Brennan's statement suggests that Red Lion

but 

be viewed, not as an example of special treatment of broadcasters under the First Amendment,

segments 

as a ruling that in some circumstances a right of reply is consistent with the First Amendment for all of the press.

potential 

** The 

for 

United States Court of Appeals for the District of Columbia Circuit very recently recognized the

of 

chilling broadcast journalists in the exercise of their First Amendment rights through the power

stated:

the Federal Communications Commission (and therefore Congress) over the broadcast license. The Court

"The suggestion that the possibility of nonrenewal, however remote, might chill uninhibited, robust and wide-open speech cannot be taken lightly. But the Commission, of course, may not penalize exercise of First Amendment rights." Citizens Communications Center v. FCC, No. 24,471, June 11, 1971, slip op., p. 27.
365

only question that remains, therefore, is whether our previous conclusion remains

applicable in light of the slight narrowing of the scope of the subpoena and the Subcommittee's new arguments in support of it.

Our examination of the scope of the modified subpoena leads us to conclude

that while there has been a reduction in the volume of documents called for, there

has been no substantive change as to the nature of the documents that the Subcommittee seeks. The new subpoena continues to call for the same documents—"film,

workprints, outtakes, sound-tape recordings, written scripts and/or transcripts

utilized" in connection with the preparation of "The Selling of the Pentagon"—that

were called for in the first subpoena. All that the Subcommittee has done is to make

clear that the new subpoena does not reach materials segments of which were not

actually broadcast.

As a constitutional matter, we can perceive no difference between the first

subpoena, calling for all non-broadcast materials, and the second, calling only for

those non-broadcast materials from which the editors of the broadcast selected

portions that were broadcast. The Subcommittee is still insisting on its right to

examine the editing decisions involved in selecting materials for the final broadcast,

and on its right to judge those decisions according to its own concept of what a proper

or correct editing decision should have been—in other words, according to a governmental standard of journalistic truth.

To demand that CBS supply unedited material so that the government can

review its editing judgments would have an unconstitutionally chilling effect upon

the First Amendment rights of CBS and all other broadcast journalists, and ultimately

upon the public's right to see and hear vigorous and critical comment on public affairs.

Nor is there any constitutional difference between compelling the production of documents and compelling oral testimony designed to elicit the same information contained in the documents, since the same chilling effect results.

In support of its subpoena, the Subcommittee now appears to be making two

additional arguments: first, that, although reporters' notes cannot be reached by

subpoena, "filmed outtakes" can be reached, since they "pertain to actual events" and

are not "private thoughts"; and second, that there is no chilling effect here because

the Subcommittee is not seeking to breach the confidentiality of news sources.

As to the first point, a filmed account of actual events is the result of a series

of individual journalistic judgments about what to film, when to film, what to emphasize and what to ignore. Journalists almost always record more than they eventually

report; the process of selection and organization is what gives shape and point to the

final product. Outtakes are thus as individualistic as the "private thoughts and impressions written by a reporter," and if produced would be equally revealing as to the edit-
366

ing process that creates the published report. And a filmed interview is constitutionally

indistinguishable from an interview in which a newspaper reporter makes his own

notes or employs a recording device.

As to the second point, the chilling effect upon a journalist's ability to retain

confidential news sources is not the only type of unconstitutional "chill" arising from

a subpoena of this kind. Any governmental effort to invade the independence of

the news gathering and editing process can have an equally chilling effect. As the

Ninth Circuit Court of Appeals recognized in Caldwell v. United States, 434 F. 2d

1081, 1086 (1970), (cert. granted):

"The very concept of a free press requires that the news media be accorded a

measure of autonomy; that they should be free to pursue their own investigations

to their own ends without fear of governmental interference. . . ."

"Further it is not unreasonable to expect journalists everywhere to temper

their reporting so as to reduce the probability that they will be required to

submit to interrogation. The First Amendment guards against governmental

action that induces such self-censorship."

As Caldwell expressly recognizes, the reporters' knowledge that their work product

is subject to governmental scrutiny and second-guessing will cause them to be timid

in performing their news-gathering and news-reporting role. In our opinion, the

First Amendment was designed to protect the press and the public from precisely

this type of governmental supervision—particularly over the reporting of news about

the government itself.

WILMER, CUTLER & PICKERING
APPENDIX K

BEFORE THE FEDERAL COMMUNICATIONS COMMISSION, WASHINGTON, D.C.

COMPLAINTS COVERING CBS PROGRAM, "HUNGER IN AMERICA"

MEMORANDUM OPINION (FCC 69-1135 38564)

Adopted: October 15, 1969; Released: October 17, 1969.

By the Commission

1. The Commission has before it several complaints regarding the CBS documentary program, "Hunger in America," broadcast initially over the CBS network on May 21, 1968, and later repeated; e.g., letter from Congressman Gonzales of September 24, 1968; and letter of Congressman Gonzales dated May 29,

1969, forwarding to the Commission copies of the transcript of hearings of the

House Subcommittee on Appropriations.* The charges center particularly

about the cause of death of the baby shown in the opening segment of the

program and said to be "dying of starvation." In this regard, they raise

questions concerning CBS' good faith and the adequacy of its efforts to ascertain

the facts prior to broadcast. We shall first set out the background facts to the

compalints, then the results of an investigation undertaken after receipt of the

complaints, and, most important, the applicable legal and policy considerations

as developed in recent rulings and amplified in this case.

A. BACKGROUND FACTS

2. "Hunger in America," first televised on May 21, 1968, was partially filmed at

the Robert B. Green Hospital in San Antonio, Texas, on October 26, 1967, by a

CBS camera crew. In the opening minutes of the program a very small baby is

shown receiving treatment while the narrator states:

Hunger is easy to recognize when it looks like this. This baby is dying of

starvation. He was an American. Now he is dead.

The program segment in question was filmed in the nursery for premature

babies at the Robert Green Hospital. The CBS "Hunger in America" crew spent

several days at the hospital in October 1967 and as part of their effort asked

to film the nursery for background scenes, the intention being to concentrate on

no particular infant. The hospital representative through whom the CBS crew

worked arranged access for the crew and, since the purpose was background

footage, no releases were sought from the infants' parents or guardians. Releases for other portions of the film were secured by the hospital's social service

staff for the benefit of both CBS and the hospital. While the CBS crew was present

in the nursery on October 26, 1967, sometime between 8 :00 a.m. and noon, a CBS

cameraman observed that one of the infants had stopped breathing. Dr. Luis

Montemayer, the resident physician was summoned. Dr. Montemayer resuscitated the infant and the CBS cameraman filmed the entire incident. CBS did

not seek to ascertain the identity of the infant until after the network broadcast

of "Hunger in America."

3. The complaint of Congressman Gonzales charges that segments of the program were "totally false in part and erroneous or misleading in other parts"

(e.g., inaccuracy as to the number of hungry people in San Antonio) ; that the

film was not that of a baby dying of starvation but instead was of a baby born

prematurely, whose mother and father were healthy and well nourished; that

CBS, "in full knowledge that the picture is false, is using it to promote an award

for itself on the program"; that CBS did not interview the physician who treated

the infant, had not checked medical records, and was not even certain of the

* A copy of the House Subcommittee on Appropriations transcript and report was also

forwarded to the Commission by Congressman Jamie Whitten on May 27, 1969.

(367)
368

child's identity; that the news team had not interviewed the parents nor obtained

permission from them to film the baby or use the film in its broadcast; that CBS

"coached" a doctor to "make dramatic statements" on malnutrition in San Antonio, and that with respect to these segments of the program, "CBS has approached the outer limits of heedless and reckless disregard for accuracy." These

charges apparently were based on a San Antonio Empress-News story of July 14

by Mr. Kemper Diehl, reporting the result of an investigation into the matter,

and on other information given by Mr. Diehl. According to Mr. Diehl, a Negro

college student had identified himself as the father of the dying baby shown in

the film; the parents denied that the baby died of malnutrition; the baby was

prematurely born in the 26th or 28th week of pregnancy; the mother reported

that the birth occurred prematurely after she suffered a fall; and when the baby

was two days old the mother had been at the premature nursery and had seen

films being made of the child.1

4. Mr. Richard S. Salant, President of CBS News, stated, regarding the identity

of the baby in question and the factors leading to its death, that "we relied for

our information on these points on statements given to our newsmen by the hospital official through whom they dealt principally in their visit to the hospital. . . . We ourselves are unable independently to identify the baby because, in

filming the premature baby ward, we had no intention of studying any individual

case in that ward and the babies filmed were thus not identified for us." As to

whether CBS "coached" a physician, Mr. Salant stated that CBS merely asked the

doctor to make his statements less technical. Finally, CBS states that it had an

appropriate authority for its statement as to the number of hungry people in San

Antonio.

B. RESULTS OF COMMISSION INVESTIGATION

5. The Commission, following receipt of the complaint, conducted an investigation of the matter. We have also, of course, taken into account the Congressional investigation (see paragraphs 12-17, infra).

6. Our postbroadcast investigation revealed that the infant who was filmed by

CBS in the nursery, and who was shown in the relevant segment of the "Hunger

in America" program, was a Claude Wayne Wright, Jr. Hospital records now

that the Wright infant was born prematurely on October 24, 1967, apparently as

the result of a fall taken by the mother on the previous day and weighed 2 lbs.

12 oz. at birth. On October 26, 1967, the Wright infant was shown as weighing

2 lbs. 5 oz. and as having suffered a cardiac and respiratory arrest treated by

Dr. Montemayer. The Wright infant died on October 29, 1967, the death certificate

shows the cause of death as "Immediate cause: Septicemia. Due to: Meningitis

and Peritonitis. Due to: Prematurity." There is no evidence to suggest that either

the mother or father was suffering from malnutrition.2

1 Other allegations concerning CBS' activities are set forth at paragraph 12, infra.

2 The basis for this finding is as follows: the field investigation indicated that the CBS

crew filmed in the premature nursery at the Robert Green Hospital during the daytime

on October 26, 1967. CBS crew members say that the cameraman was filming various infants in the ward at the time he noticed that one baby suddenly stopped breathing.

Dr. Luis Montmayer was called, and the cameraman continued to shoot film while the doctor resuscitated the infant. Based on hospital records and information supplied by Mrs.

Mary Jo Quinn, record librarian, six babies died in the nursery during the period of Octo- ber 18 through October 29, 1967. Mrs. Quinn stated that none of the six babies suffered from malnutrition. Of the six deaths, two were baby girls. One of the baby girls died on October 21. Obviously this could not have been the baby shown in the film, not only because of the date, but because the baby in the film was identified as male. The other baby girl was born on October 23 and expired October 29, because of (1) respiratory failure; (2) peritonitis and stress; (3) spontaneous gastric performation. Mrs. Quinn stated that the hospital had no information regarding the mother of this baby adding that there was nothing in the record to suggest malnutrition on the part of the mother or the baby. Two

more of the babies died the same night they were born, prior to the October 26 filming date. The fifth baby, born October 25, 1967, died on October 26 at 11 :55 p.m. However, this baby was of normal birth after forty weeks gestation, weighing about seven pounds,

ten ounces, and it apparently would not have been in the premature section of the nursery where the baby in question was filmed. Moreover, hospital personnel say the baby shown

on the CBS program was much smaller than this one. The sixth baby, Claude Wayne Wright, Jr., "was born by way of spontaneous premature labor from a 17 year old Gravida

I, Para. 0, female who was approximately 7 months pregnant by history" on October 24,

1967, weighing only about two pounds, twelve ounces.

According to the hospital records the baby had a cardiac and respiratory arrest on

October 26 and was treated by Dr. Luis Montemayer. The baby died on October 29, the immediate cause of death shown on the death certificate was septicemia, which was in

(See remainder of footnote at bottom of next page.)
369

7. Turning now to the question of how CBS came to identify the Wright

infant as having died as the result of malnutrition, the following are the pertinent facts. Prior to the nursery filming, Mr. Martin Carr, producer of "Hunger

in America," was told by Dr. Elliott Weser, in an interview which took place in

the pediatric ward, that most of the babies in that ward were suffering from malnutrition and that three wards are "filled all the time with babies suffering from

diarrhea and malnutrition." Mrs. Vera Burke, in charge of social services at the

Robert Green Hospital at the time of the CBS filming, recalled telling Mr. Carr or

other OBS crew members that "there were high incidence of premature births due

to malnutrition in the mothers"; however, she denies indicating that any particular infant was dying or had died as the result of malnutrition. The latter assertion

by Mrs. Burke is contradicted by Mr. Carr and Mr. Peter Davis, CBS associate

producer, who recall being told by Mrs. Burke that the infant in question died as a

result of maternal malnutrition on October 27, 1967.

8. No further inquiry was made into the identity of the infant identified as

dying of starvation until after the broadcast. The first allegations made regarding

the accuracy of portions of the program were raised in the San Antonio ExpressNews on July 14, 1968. The allegations were based upon the assertion that the

baby identified as dying of starvation was in fact the Wright infant and that the

infant did not die of malnutrition. The Express-News charges were repeated in

Congress on July 22, 1968, and Burton Benjamin, Senior Executive Producer,

CBS News, denied the charges in a letter to Congressman Gonzales dated July 25,

1968. Benjamin, in the letter, said that CBS has been informed by "medical personnel" at the hospital that the infant filmed died of maternal malnutrition and

could not have been the Wright infant since he did not die until October 29th and

the CBS infant died on or about October 27th. Further, Benjamin stated, the CBS

infant was Mexican-American whereas the Wright infant was Negro. The information contained in Benjamin's letter was received from Mr. Carr and Mr. Davis

although Mr. Benjamin called Mrs. Burke after the broadcast and she was unable

to specifically identify the infant. However, Mr. Benjamin said, Mrs. Burke did

affirm that maternal malnutrition was the cause of death. Mr. Benjamin also

spoke to Dr. Weser who was also unable to identify the infant filmed. Mr. Benjamin did not ask Dr. Weser whether the infant had died of malnutrition. Although

Dr. Weser did not recall speaking to Mr. Benjamin, he was not certain he had not;

he did, however, recall speaking to Mr. Carr after the broadcast.

9. After the broadcast, Mrs. Burke called Mr. Carr to inform him of the Express-News charges and spoke to him on several subsequent occasions; she,

according to Mr. Carr, never indicated that she had any doubts as to the cause

of the infant's death. Dr. Weser recalled speaking to Mr. Carr once or twice

after the broadcast on a friendly basis but was uncertain as to the subjects discussed. No one connected with the Robert Green Hospital recalls being asked

to check hospital records to establish the infant's identity; Mrs. Burke also

denies being asked to do so. Mr. Carr, however, maintains that he asked both

Mrs. Burke and Dr. Weser whether the hospital records could settle the dispute

and was told that they were no longer available (Mrs. Burke) and that it would

be difficult to prove anything by the records (Dr. Weser).

10. From the foregoing, it is apparent that in view of the statements made by

Mrs. Burke and Dr. Weser, at the least, CBS had reasonable basis for assuming

a very high prevalence of malnutrition in the nursery and pediatric wards. The

issue thus comes down to whether, regardless of the statements that the wards

turn caused by meningitis and peritonitis, due to prematurity. Hospital records made

no reference to malnutrition on the part of either the mother or the baby. Dr. Montemayer,

when interviewed on October 18, 1968, stated that he saw the film on television; that he

was shown in the film giving artificial respiration to the baby after the baby had suffered

two cardiac arrests; and that the second cardiac was in front of the camera; Dr. Montemayer also said that, "they [CBS] said the baby died from hunger, but he did not. He

died of complications because of prematurity. He only weighed two pounds and some few

ounces . . . there is no doubt that the baby shown on television was the Wright baby. I

remember the baby was premature—and exceedingly small—less than three pounds. I

checked records of about four babies and that's the only one it could have been." The

testimony of two nurses tends to corroborate the statement of Dr. Montemayer in that

both stated that they had observed Dr. Montemayer resuscitating the baby while the crew

was shooting film of that particular baby. Thus, it is apparent that this is the baby that was

shown in "Hunger in America." When contacted during the field investigation, the father

of the baby stated that he did not want to discuss the matter any further. However, it is

pertinent to note that when both parents were interviewed by Mr. Kemper Diehl, they

denied that the mother suffered from malnutrition and said the birth occurred prematurely

because the mother suffered an accidental fall.
370

were "filled" with babies suffering from malnutrition, CBS nevertheless engaged

in "sloppy" journalism or was recklessly indifferent to the truth in not ascertaining the cause of death of the Wright baby. Here there is a conflict with the

memory of the CBS witnesses differing from that of the hospital personnel. In

these citcumstances, it is, we believe, inappropriate to hold an evidentiary hearing and upon that basis (i.e., credibility or demeanor judgments) make findings

as to the "truth" of the situation. The "truth" would always remain a matter

open to some question, and unlike a tort or contract case, where a judgment

must be made one way or another, that is not the case here. The issue presented

here by the complaints is not one under the fairness doctrine, concerned with

presentation of contrasting viewpoints (a different matter upon which we do

not pass), but rather, whether to find the licensee has sought deliberately to

slant the news. For reasons developed more fully in subsequent discussion (paragraphs 18-29, infra), intervention by the Government should be limited to cases

where there is extrinsic evidence involving the licensee or management or in

the unusual case where the matter can be readily and definitely resolved (footnote 7, infra). That is not this case.

11. Nor, we believe, would it be appropriate to hold a hearing regarding the

charge that CBS tried to induce a San Antonio physician, during a filmed interview, to "make dramatic statements" which were not substantiated by the facts.

The physician, Dr. Ramiro P. Estrada, states that after filming the interview,

the CBS producer told him he was "hedging too much" and "wanted me to be

more positive about my statements." Dr. Estrada says he thinks "they wanted

more dramatic statements or more impressive cases but I said I couldn't go

any further than this." The CBS producer denies that any effort was made to induce Dr. Estrada to make "dramatic statements" and asserts that he asked

only that the doctor make his remarks less technical and therefore more understandable to the public. The producer states that the filmed interview was not used on the program because in his editorial judgment the material was too technical. Thus, there is a conflict of evidence on this aspect of the complaint, and it does not appear that further inquiry is warranted to resolve it, in view of the policy discussion set forth within.s

12. On June 2, 1969, after the issuance of the report of the Subcommittee of the Committee on Appropriations and Part 5 of the related staff report; Congressman Gonzales asserted on the basis thereof that "CBS paid participants

on the program to appear before its cameras and perform as per their instruc- tions. However, CBS made no announcement of such payments before, during

or after the broadcasts in question, so that the American public would know

that the views expressed, ostensibly belonging to the persons interviewed, were in fact bought and paid for by CBS. It is plain that the award of such undisclosed gratuities violates Section 317 of the Communications Act." Reference is

also made to the San Antonio Commodities store segment of the program. Accordingly, the Commission made further inquiry into the additional matters

raised.

13. With respect to the payment of interviewees by CBS it should first be

noted that Section 317 of the Communications Act requires announcement of

payments received by the broadcast statement rather than payments made.

Consequently, no question of CBS' compliance with Section 317 has been raised.

The actual issue is whether CBS. through payments, sought to induce the interviewees to make statements which they otherwise would not make. We note

that payment to interviewees, particularly in the form of releo sea. is frequently

made. CBS states that its documentary crews always attempt to obtain personal

releases from persons filmed, using forms prepared by the CBS Law Deportment. and that consideration is always paid for such releases. It denies that

consideration was paid in this case to induce false or misleading statements

and asserts that the payment made in each instance was reasonable in the light

of the inconvenience caused the interviewee. The Subcommittee made available

to the Commission copies of their memoranda of interviews had with people

who had appeared on the program and who had received payments from CBS

ranging from $15—$40. Our study of these memoranda revealed no reference

of any kind from which it could be concluded that payments were made to induce

participants to "perform as per instructions" or to make other than truthful

3In view of the CBS response and the above discussion, the other charge regardine the

accuracy of statistics as to the number of hungry people in San Antonio likewise does not establish a case of slanting the news.
371

statements. Mr. and Mrs. Boyd Nez were paid $40 for allowing CBS to film them

and their daughter's family,a Louise Zanders received $39 from the CBS crew

during the three days they filmed at her home, and Esther Medrano was paid

$15 by CBS, the amount she would have earned as a domestic during the three

days she stayed at home waiting for the CBS crew. In view of the absence of any

indication of any wrongdoing by CBS, the Commission does not believe that

further inquiry into this matter is warranted.

14. Turning now to CBS' activities involving the filming of events occurring

at the San Antonio City Commodities market, the Subcommittee's investigative

report included the following paragraph:

Mr. John E. Bierschwale, Director of the San Antonio City Welfare Department, advised on September 30, 1968, that at the time the CBS crew was

in San Antonio, the city operated a commodity distribution program for the

needy. The city has since changed to a food stamp program. He said the CBS

crew wanted to film a typical commodity distribution office and made arrangements to set up the cameras at one of the offices. CBS waited for a long line

to form outside the office, but when this did not occur the CBS crew requested

that the doors to the office be closed to allow a line of people to form. Mr.

Bierschwale stated he cooperated with CBS by closing the office without

realizing that CBS intended to discredit the commodity distribution program. The doors were closed for 1 hour and 45 minutes to permit a line of

about 20 people to form before the filming took place.

15. The Commission's staff contacted Mr. Bierschwale who affirmed the facts

recited above. In addition, three former employees of the Commodities Market

were interviewed—Messrs. Vernon Sance, former Superintendent of the Commodities Warehouse and now a San Antonio policeman, Donald Lynch, former

Issuing Clerk at the Commodities Market and now an employee of the San

Antonio Police Department, and William R. Monahan, former Supervisor of the

San Antonio Distribution Center who is now retired. All of those interviewed

recalled that during the time that the CBS crews came to the Distribution Center,

the distribution of commodities was interrupted. Messrs. Bierschwale and Lynch

state that the doors to the Center were closed for 1 hour and 45 minutes, only

15-20 minutes of which was used for the setting up of cameras and lights. Messrs.

Sance and Monahan, however, state unequivocally that distribution was halted

for no more than 20-30 minutes to permit CBS to set up its equipment. Both

Bierschwale and Sance agree that by the time distribution recommenced, 15-20

people were awaiting service. Mr. Bierschwale attributes CBS' request to halt

distribution to their desire to show people standing in line for commodities; on the

other hand Mr. Monahan recalls that CBS did not want too much of a line and

wanted pictures of only a few people in the room.

16. CBS's reply, in all major respects, comports with the recollections of

Messrs. Sance and Monahan. Martin Carr, producer of "Hunger in America"

states that the only film shot by CBS was of the people inside the Distribution

Center and thus only the four recipients who could physically be accommodated

at one time. Aside from individual faces and bands, some portion of the film

shot at the Commodities Market was utilized in "Hunger in America" and in

the closing credits of that program, but, according to Mr. Carr, no lines were

filmed or utilized since CBS was not interested in filming the Commodities

Market for that purpose. In addition, CBS states that it was at Mr. 13ierschwale's suggestion that the CBS crew returned on Wednesday, October 25, 1968,

because he anticipated more customers. According to Mr. Carr and CBS, the

crew arrived at the Distribution Center early and set up their lights directly

above the distribution counter, thereby interrupting the distribution of food

for reasons of safety and because of the limited space in the room. Aside from

the 20-minute period for the initial setting up of equipment and a possible 5-

minute interruption for readjusting television lights, CBS asserts that at no

time did any of its employees make a request to Mr. Bierschwale that the distribution be halted.

17. In view of the statements of the Welfare Department, the fact that CBS

shot no film of, and the program gave no indication of, an effort to show a long

line of welfare recipients, and the description of the floor plan and modus

operandi of the welfare center (room for four persons in a line from the entrance

a The Nez family also states that CBS promised additional payment and lumber but that

it was never received.
372

door to the food counter), we find no warrant for concluding that CBS sought

to slant its news depiction, as charged in this respect. Here again we would

also note that the subsequent policy discussion (Section C, infra) is, in any

event, in point.

C. RELEVANT POLICY CONSIDERATIONS

18. The investigation described in Section B was appropriate under the Commission's policies as then developed. This case and the Democratic National

Convention case (Letter to ABC et al, February 28, 1969, 16 FCC 2d 650) have

led us to focus again on what policies should govern Commission action in this

sensitive area. We set forth those policies in this section.

19. The discussion in Letter to ABC, supra, makes clear that the Commission's concern in this type of situation is twofold: (1) whether there has been

compliance with the fairness doctrine (reasonable opportunity for the discussion of contrary viewpoints on issues of public importance) ; (2) whether

the licensee has deliberately distorted or slanted the news. The complaints in

this case focus on (2). As to this area, we stressed in the Letter to ABC, supra,

at page 10:

. . . that the critical factor making Commission inquiry or investigation appropriate is the existence or material indication, in the form of extrinsic evidence, that a licensee has staged news events. Otherwise, the matter would

again come down to a judgment as to what was presented, as against what should

have been presented—a judgmental area for broadcast journalism which this

Commission must eschew. For the Commission to investigate mere allegations,

in the absence of a material indication of extrinsic evidence of staging or distortion, would clearly constitute a venture into a quagmire inappropriate for

this Government agency.

20. Lest there be concern that our inquiry into allegations of deliberate distortion of news or staging of purported incidents for use in television documentaries, such as those involved here, may tend to inhibit licensees' freedom

or willingness to present programming dealing with the difficult issues facing our

society, we wish to make our policy in this sensitive area clear. We commend

CBS for undertaking this documentary on one of the tragic problems of today.

We wish to make it clear that, in the future, we do not intend to defer action on

license renewals because of the pendency of complaints of the kind we have

Investigated here—unless the extrinsic evidence of possible deliberate distortion or staging of the news which is brought to our attention involves the

licensee, including its principals, top management, or news management. For

example, if it is asserted by a newsman that he was directed by the licensee to

slant the news, that would raise serious questions as to the character qualifications of the licensee. See, e.g., KMPC, Station of the Stars, Inc., 14 Fed. Reg.

4831 (1949). Such cases must be thoroughly explored, and it would be inappropriate to renew the station's license pending resolution of such an issue. However, if the allegations of staging, supported by extrinsic evidence, simply involve

news employees of the station, we will, in appropriate cases ( see par. 21. infra.),

inquire into the matter, but unless our investigation reveals involvement of the

licensee or its management there will be no hazard to the station's licensed

status. Such improper actions by employees without the knowledge of the licensee

may raise questions as to whether the licensee is adequately supervising its

employees, but normally will not raise an issue as to the licensee's character

qualifications.

21. We would stress that in a situation involving a charge of slanting by a

news employee, we intend to exercise care in entering this sensitive area. Thus,

as set out in the Letter to ABC, supra, we do not consider it appropriate to

enter the area where the charge is not based upon extrinsic evidence but rather

on a dispute as to the "truth" of the event (i.e., a claim that the true facts of the

incident are different from those presented). The Commission is not the national arbiter of the "truth". And when we refer to appropriate cases involving

extrinsic evidence, we do not mean the type of situation, frequently encountered,

where a person quoted on a news program complains that he very clearly said

something else. The Commission cannot appropriately enter the quagmire of

investigating the credibility of the newsman and the interviewed party in such

a type of case. Rather, the matter should be referred to the licensee for its own

4
373

investigation and appropriate handling.' On the other hand, extrinsic evidence

that a newsman had been given a bribe, or had offered one to procure some

action or statement, would warrant investigation. So also should there be an

investigation where there is indication of extrinsic evidence readily establishing whether or not there has been a rigging of news (e.g., an outtake or a

written memorandum).

22. Thus, depending on the nature of the complaint, the Commission might

take no action, refer the matter to the licensee for its investigation, or might

conduct its own investigation. While it is not possible to set out which course

of action would be appropriate in a wide range of cases—since so much depends

on the facts of the case—we shall act with great care. Rigging or slanting the

news is a most heinous act against the public interest—indeed, there is no act

more harmful to the public's ability to handle its affairs. In all cases where we

may appropriately do so, we shall act to protect the public interest in this important respect. But in this democracy, no Government agency can authenticate

the news, or should try to do so. We will therefore eschew the censor's role, including efforts to establish news distortion in situations where Government intervention would constitute a worse danger than the possible rigging itself.'

D. CONCLUSION

23. We have set out the results of our investigation and, most important, the

policy which we shall follow in this sensitive area. Upon the basis of the foregoing discussion, we conclude that no further action is warranted here with

respect to the issue of slanting the news—the issue which was presented in the

complaints.

24. While there thus may be no basis for Commission action, we strongly

believe that questions such as those raised by Mr. Diehl in his newspaper articles do serve the public interest. As we stressed in the Letter to ABC, supra,

page 8, it is vital that the media be subject to scrutiny by critics, and there is,

we think, no better way than for news competitors to be constantly checking on

each other. The beneficiary of such criticism is clearly the American people.

Finally, we note again that broadcast licensees must take such criticism into

account, and take all appropriate steps in the light thereof. The key to their

continued high standing with the American people is constant vigilance to assure the integrity of their news operations.

BEN F. WAPLE, Secretary.

1In this connection, we stress that the licensee must have a policy of requiring honesty

of its news staff and must take reasonable precautions to see that news is fairly handled.

The licensee's investigation of substantial complaints referred to it must be a thorough,

conscientious one, resulting in remedial action where appropriate (see Letter to ABC, 16

FCC 2d 650 (1969)) ; efforts to "cover up" wrong-doing by his news staff would raise the

most serious questions as to the fitness of the licensee. See WOKO, Inc. v. FCC, 329 U.S.

223 (1946).

2In any event, overlaying this entire area is the fairness doctrine, which is applicable

to the news operation of broadcast licensees and which, in particular situations such as

here treated, may call for the presentation of contrasting viewpoints. See Red Lion Broadcasting Company v. United States, 395 U.S. 367 (1969) ; Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949).