Evening star., 1937-02-20

newspapers Oh
any ownership in radio broadcasting
stations. II the power to do this by act
of Congress exists-and this certainly
never would be sanctioned as constl-
tutional by an independent Judiciary
then the power of the President and
Congress to regulate the ownership OF
newspapers on the same pretext-tne
regulation Of commerce-becomes au-
tomatically constitutional.
The proposed bill to separate news
papers from broadcasting stations
would naturally affect publications
friendly as we'll as unfriendly to the
President in the last election cam
paign. Thus Judge Bingham, Amoas-
sador to Great Britain, owns the
Courier Journal at Louisville, which IN
turn owns Station WHAS. There are
other stations in the South owned by
newspapers which are stanch politl-
cal s,nporters of the administration.
If. however, the bill as finally enacted
should vest in the Federal Communl-
cations Commission power to allow
licenses within its discretion to owners
when, in the Judgment OF his ap-
pointees on the commission. the pub
lie interest" is not impaired. the way
Is opened for issuance OF licenses 10
certain newspapers which are sup
porters and to be denied to other news
papers which oppose an administra-
tons policies. Control of the press Is
simple under such device.
Present Law Limits Discretion.
The present law plainly does not
give any power to the Communications
Commission to issue or deny license
on any ground except public interest,
convenience and necessity" and there
are precedents in Supreme Court de-
cisions which indicate that these
phrases relate to mechanical questions
having to do with wave lengths and
not to the character of programs or
the nature of the ownership CT
stations.
But it is interesting to note that
Hampson Gary, general counsel 1or
the Federal Communications Commis-
sion, has sent a report to Senator
Wheeler transmitting formal opinion
on the questions of constitutional law
involved. Gary says in part: ,.
ct am of the opinion that the mutual
ownership and control of newspapers
and broadcast stations bears reason
able relation to and has an effect
upon interstate commerce and, there
fore. If the Congress enacted law
of the purport suggested, 1t should
meet the constitutional require
ments -"
1T is well settled that all radio
broadcasting is within the regulatory
power of Congress under the commerce
clause Of the Constitution and the
power to regulate includes the power
to prohibit"
Powers Disputed.
As matter of fact, 1t has not been
settled at all that Congress can pro-
hibit the movement of goods in inter-
state commerce except in the case OF
articles themselves injurious or having
harmful consequences. Congress, OF
course, can pass laws prohibiting the
transmission of programs offending
common decency or containing lloelouS
material, but this is a far cry from
regulating the programs which are
otherwise lawful and otherwise unin-
furious in themselves to public health
or morals, or from regulating who
shall or who shall not own broad
casting station.
The general counsel of the commits
sion went on to say that freedom
of the press Is not abridged by a
reasonable regulation of commerce
fnL
stitutional authority for the protec-
tion Of all the people, including the
press.
Continuing further, Gary's formal
opinion says:
"It is submitted that legislation such
ss that proposed would constitute no
ahridgment of freedom of speech or
of the press since ownership or con-
troll Of a radio broadcast station is
not essential to the right to speak
or the dissemination Of news. and the
owning or controlling Of a broadcast
station as a business has nothing to
do with the freedom of speech or
Of the press as such, because the
newspaper would still have the same
right to communicate by printing or
hroadcasting, which is enjoyed by
any other person or class"
Huey Longs Tax Recalled.
Now it so happens that the Supreme
Court, by unanimous opinion last
year. held just the opposite. This
happened when Huey Longs attorneys
tried to secure valuation of Louisiana
statute putting severe tax based
on the circulation Of newspapers. The
Louisiana attorneys pleaded that
newspapers in so far as their revenues
were concerned, were business
proposition and not in any way. there
fore. immunized by the freedom Of
press clause in the Constitution. The
Supreme Court held that, of course.
newspapers as a business were subject
to taxation and to other laws affecting
everybody else, but that to discriminate
against newspapers as class was
Q direct violation Of the guarantees Of
freedom of the press under the Federal
Constitution.
II, therefore, Congress were to be
upheld by new Supreme Court in
the power to remove newspapers as
class from possible ownership Of
things that other citizens could I,
the same power could readily be
invoked to declare by statute that
newspapers could not print in a GER
tain size or circulate in particular
area or publish within certain hours.
An Age-Old Fight.
For hundreds of years the courts
of Anglo-Saxon people have ruled
against efforts by one method or an
other to impair the freedom Of the
press through attempts to put limita-
tions on their business operations.
Gary says that once divested Of
ownership, newspaper owners can
still transmit news in other ways.