Edward S. Greenbaum: -- this was required to run in North Dakota, I understood your question was how many votes. There is no primary at this filing of a petition there. And I could say I haven't done well and I have a little trouble hearing so I apologize for that. As we were indicating a moment ago the situation in this case is that in 1927, this statute was passed and this is the first time nearly a third of a century that this case has come before this Court. The act at that time when the statute was passed had no such thing as television, radio we might say just been born, television had been conceived but wasn't born and then the intervening period of time we've had various cases that have come up. And just very briefly to give the Court a picture of what's happened. The statutes that are quoted in our brief on pages 2 and 3 and pages 2, it's the statute 315 which is presently before you. The big purpose of this statute was of course to give equal time to the opposing candidate. A new concept had entered into the American field and as Mr. Justice Frankfurter said for this Court in the case of NBC against FCC, we had a unique situation where the time was limited, and therefore for the first time and as far as I can see in our history we did have a need and rightly so for control. So 315 sir in the early days there that if any licensee shall permit a political opponent to have the right to use of the station, the other time, the other candidate must be granted equal time and that is the question before us now, that -- into that statute has been read the provision that the equal time allows immunity to the station. It is our contention that what Congress was saying was, you do not have to give equal time to anybody but if you do then you must let the opponent or in this case the opponents have equal opportunities to answer. At the same time the statute contained two other provisions. You will notice on page 2 of our brief that proviso provided that such licensee shall have no power censorship over the material broadcast. And on the following page, page 3, it is stated in the Section 326 at the top of the page that nothing in the act shall interfere with -- I am sorry, 414 that nothing in the act shall in anyway abridge or alter the remedies now existing either at common law or by statute. The fact is, if the Court please, that in spite of these provisions, the court in South Dakota has granted immunity to the television station and has said that there is no responsibility on its part. It is our contention going back to the question that Mr. Justice Black indicated before lunch that whether or not Congress could have done this, whether it had the statutory power and as our opponents say it could have done it by the stroke of the pen, the fact is that it never took that stroke of that pen. Indeed when the first section was passed by the United States Senate, I am talking now of 315, it did include an immunity provision. There was considerable debate about that in the Senate and then in conference it was stricken out. And since that time 16 different times, Congress has been asked to and 16 different times Congress has refused to grant this immunity. Very briefly the history of the section and what's happened on it since then is this. In 1932, that's the period of five years the first case arose, this in Nebraska, the case was Sorenson against Wood and that court held that there is no immunity there and therefore it held in favor of the plaintiff and held the television station libel.
Speaker: Immunity under the Federal statute or immunity under the state law?
Edward S. Greenbaum: It would always be under the state law Your Honor but as far as we can see the argument presently made, one of the arguments is that the federal statute gives what is called, if I may use the language there, a federal immunity which means the federal -- and as the field of libel which of course is definitely a state function and by entering that field, immunity is granted. So I am unable to answer your question. I leave better than by saying immunity is granted under the federal statute of 315. In other words, the state law has been infringed upon by the Congress on that. Things went along, what I would call, rather quietly on this particular front to 1932 till, when the Sorenson case was decided, till 1948. In fact we could add the prior five years to that and say from '37 to '48 a period of 21 years when this question was more or less quiet. Then in 1948 after the commission, Federal Communications Commission held that case to two-and-a-half years, it decided that the statute of 315 granted not only immunity, but deferred and prevented the stations from deleting or excluding exercising libelous matter. That case arose in connection with a station that was up, for its three year renewal license. As we indicated before every three years a station has to ask for permission to go on. The station was rather forcibly we might say slapped on the wrist due to the fact that the station in a campaign before had refused to give political campaign time to any candidate. So we might say and completely over to dicta if you can use that expression for the commission, it granted a renewal even though it scolded the station and said two important things, the station is not permitted to delete a libel, and two it said the station is granted immunity. I don't think it would take the commission two-and-a-half years to decide that case, but it was a very split decision. The dissenting commissioner Jones called the decision unnecessary and he also said the language about immunity was extremely dangerous. He said and predicted that unscrupulous candidates could use this statute as thus construed as a weapon to bait labor and capital and dispense subversive division in the southern states, he didn't say the southern states, and elsewhere. A few decades later after this case came up, there was an action brought by another station in Texas. The question there was as to whether or not the FCC could be restrained from enforcing this action. The FCC, if I may use the expression, turned turtle and ran away from its own decision. It said that it wasn't any official ruling. This was an interpretation in an opinion that was given. And the Supreme Court in Houston, Texas said that it had no jurisdiction in the case, no power in the case because the ruling of the FCC was as the commission itself said not a binding ruling. Very shortly after I believe, a few days after, the Houston Post case the question came before Congress. There was appointed a special committee to investigate the Federal Communications Commission. At that time the chairman of FCC was Mr. Wayne Coy who also ran away from this decision on the Port Huron case before the Congressional Committee. He said that no one will have any trouble who denies a candidate the right to what anyone would hold debate a defamatory statement. Congress then reported or this committee of congress reported to the Congress that FCC is not planning to enforce this and the whole matter should be looked into further, 1948 that was. Things went along, I can't say this time rather quietly a little bit hectically, until 1951. Then in the case of WDSU --
Felix Frankfurter: May I break in before you go on, what was the upside of '48 enquiry? Was there a report by the house committee? Did they with this submitting their report and what did they say?
Edward S. Greenbaum: Yes Your Honor they did and indicated as I said in the report, indicated that the matter they had received assurances from Wayne Coy and the reference to it is referred to in our brief where it was stated by Mr. Coy and I'm referring now to page 17. You will it at the bottom of 16 and then 17. The Chairman of the Committee said we expect you to enforce the laws laid down by the Congress in protecting the rights of political candidates, but on the other hand we're a little bit concerned, and I might say deeply concerned --
Hugo L. Black: What page do you read from your brief?
Edward S. Greenbaum: I'm reading our brief at page 16, on the lower left hand corner. I might say deeply concerned in the light of this Port Huron case that some broadcasters may fear the loss of their licenses if they deny a candidate the right to make what anyone would construe is a libelous statement and he asks for assurance that, that would be done and as you will see on the top of 17 the assurance came from the Chairman Mr. Coy and the report to Congress indicated Mr. Justice Frankfurter that they did have a feeling, not only a feeling, the assurance that no immediate action would be taken.
Felix Frankfurter: I started to read, I haven't hope to read all of his testimony, it's fairly long, Mr. Coy, but he was very emphatic and unqualified in his then view that reasons, the proper construction of 315 involved or led to imply immunity and a displacement of all state law, even though unequivocally in his testimony, at least as far as I've read.
Edward S. Greenbaum: That's what the position that he took --
Felix Frankfurter: Now are you saying that he then assured Congress, that although that -- his view of the law, is he going to obey it?
Edward S. Greenbaum: When I said Congress I meant this committee --
Felix Frankfurter: (Inaudible)
Edward S. Greenbaum: Yes they did.
Felix Frankfurter: (Inaudible) investigate it?
Edward S. Greenbaum: He did --
Felix Frankfurter: (Inaudible) about it, if I don't qualify.
Edward S. Greenbaum: Well --
Felix Frankfurter: Did he say then that -- did he give assurances as Chairman of the Commission that he wouldn't carry out what he conceived to be the clear demand of the law?
Edward S. Greenbaum: (Inaudible) as indicated on page 17, any capricious action that is right.
Felix Frankfurter: Well I know, what does that mean?
Edward S. Greenbaum: I don't know.
Felix Frankfurter: Usual kind of medium outlet to answer the questions of congressional hearings.
Edward S. Greenbaum: Well the answer is Your Honor that, that's the position that they took.
Felix Frankfurter: Well I understand the words but I don't get the meaning.
Edward S. Greenbaum: Nor me. I am on the (Inaudible)
Felix Frankfurter: I don't know what kind of an assurance it is when he says first the law is clear and commands us to do this, secondly we are troubled by it, the committee's question (Inaudible), we are all troubled and they disagreed with him, then you say he gave assurance and said we moved to anything that's capricious. Well nobody says its going to do anything that's capricious, of course we all do reasonable things.
Edward S. Greenbaum: Well if Your Honor, please I think the decision in the case that he was taking about part sure on was doing it, whether you call it capricious or not, if a station was to take action, by broadcasting something, by taking out something that is libelous, that was to be condemned by FCC. I think that's what he meant by the word capricious. In other words Huston, not Houston, the Port Huron case had said specifically that no station may delete and if they do we will deny them the right to have a license.
Felix Frankfurter: The point of my question is to elicit if I can what can fairly be called or rather what can fairly be drawn as commanding legislative history from this mass of contradictory stuff.
Edward S. Greenbaum: That is referred to at page 11 in our reply brief in which the Congress said that I am asking no recommendations about it here because it is not included in the legislation, this is what Wayne Coy says. Then Congress --
Felix Frankfurter: As a matter of the fact the Senate did have that immunizing provision to which you've just referred.
Edward S. Greenbaum: Yes in the original action --
Felix Frankfurter: Well also in 48 paper (Inaudible)
Edward S. Greenbaum: That's right in the original act of 1927 and we've laid out the different points now.
Felix Frankfurter: Because the bill comes out of the Senate to the house having an explicitness of immunity for immunity. These investigators particularly Congressmen Bow is shocked et cetera, et cetera, Coy says I am -- this is my view, then he says -- then you say, and the record shows, he gives assurances. What I just want to know is what does that all -- what it all adds up to when you get through reading those words?
Edward S. Greenbaum: Well I can just report what the facts are as we have been reading them. The facts are that after this assurance about the no capricious action then the Committee of Congress reported to Congress the facts as given by Mr. Wayne Coy.
Felix Frankfurter: Where is the reference to that report? That's what I want to know, what do they report? I'm still old fashioned enough to look for authority to legislative history from reports and not from (Inaudible).
Edward S. Greenbaum: That would be on page 19 if Your Honor please that -- of our report here. Where is that? We're talking, I'm sorry 19 of the report in our petition for certiorari to this Court which we refer to by cross reference and that--
Felix Frankfurter: (Inaudible)
Edward S. Greenbaum: That's in our petition, the earlier petition.
Hugo L. Black: Yes.
Edward S. Greenbaum: And the Court there reported the question of -- there is in 1948, on 19 if you see in the middle of the page, that's the reference that we have to it there. The question of immunity of broadcasters from liability was the principle subject matter of those hearings and no legislation was recommended. There is no --
Felix Frankfurter: (Inaudible) legislation would recommend it, they rejected what the Senate proposed.
Edward S. Greenbaum: That's right, at that time. I have no specific reference that I can give you, other than the action there as to what they did. They got the assurance, they heard it wasn't capricious and they did nothing. In other words we say that, that is action. That is taking the action before the Court by the Senate saying no, we will not grant this amendment, we will not give this. The next case that came on, which was before the Federal Communication Commission Your Honor was WDSU in 1951 and in that case the Court repeated what it had said three years before under 1948 case and it said that if a commission, if the commission finds as it had the right to find in cases, that there was such action taken, then in that event the station would be denied it's renewal, and that's on the three-year statute and that was pleaded in our present case as the ground for this to defendant, this radio, television station for its right, as it claims, both to reject the script on this case and in its defense to get to immunity for the action that was subsequently brought. Now the action of this --
Hugo L. Black: Does your argument mean that the statute, that the radio stations and televisions stations are left free to sensor things that are said insofar as they believe they are libelous?
Edward S. Greenbaum: Our argument is that they should be, yes Your Honor but not that they have been.
Hugo L. Black: Your argument is that they can.
Edward S. Greenbaum: Yes. But that has been directly held against in the cases I said, including the 1951 WDSU case and was pleaded by this defendant as an answer. The consequence of this is this defendant WDAY, which is one of the oldest radio and now television station, has said that we regret that our facilities have been forced to become the subject of a libel suit and may again be under the law, and then they say however that, that is our defense that the commission FCC says that, that is the consequence of this Section 315 and accordingly we are not responsible. The language I've quoted from this on in their brief, in which they refer to this and it is our contention. Well I may put it this way, that the very attitude of this station indicates what will be the future of this whole tremendously broad program. Here you have a medium, first radio and now television which means it can reach as you all know many millions, in the last year speech of President Roosevelt was said to have reached a limit of over 60 million people at one time, this vast powerful huge medium is now placed from the position whereby the irresponsible person, the speaker was worthless, who has no interest in any financial responsibility is given the absolute right to get on this radio, get on this television, as this defendant did in this case. Now the defendant I mean the individual defendant Townley who was sued, as well as the radio station. What he does in this case, he virtually walks into the station and he says I want to be -- the speech televised. The station says this is libel and we can't do it. He says, “I am candidate for others. I have my 300 signatures and I am entitled to have my rights protected under 315.” So he said that all he can do is – he sits there, gets himself photographed, has himself put on television and just leaves, he wasn't even there when the broadcast was given. And this speech of his, this commercial of his is played in the morning, in the afternoon and the evening of October 29th and he says you can't do anything about it. It is our contention that any such interpretation of 315 is extreme. It attacks the rights of the individual who is not a candidate as far as the individual who has, including in our case the Farmers Educational who is the petitioner in this case. They are called, as you saw before, a communist organization who are suppressive to the right, to the people of the State of North Dakota whom they're representing in the sense that they are getting membership from them and that station not a candidate, no right to reply, not even mentioned in 315 that station can be libel with immunity by this huge new giant medium of communication that we've created since 1926 when this statute was drawn up. And our contention would be --
Hugo L. Black: Would you have enjoined the newspaper in that state and its law publishing that same speech?
Edward S. Greenbaum: Well we couldn't have enjoined them. We could have sued them. They certainly couldn't claim immunity and the comparison with the newspaper goes back to – we were talking about before lunch on a constitutional point that if a radio station, this particular one, WDSY, had printed as it did this broadcast and suppose the statute requires for some reason or another that a newspaper must publish this. Would the newspaper be exempt from libel? The question here would be, we submit, a pertinent illustration of the inequity of a provision if it wouldn't print. But if it could be held that section 315 is a very unusual and a very unique concept, it makes, it compels a station to give equal time to the other side, equal opportunity. Now that concept sounds now after a third of a century, it's only the way we are used to, we have nothing like that, Your Honor, in the newspaper world, we have nothing like that in any field of written communication. And we say that such a statute couldn't conceivably have given the right to a newspaper or as in this case we have here a television station to be exempt from liability. Why not, why should it be because this new man, the third person, the candidate, he might be the second candidate comes in and he says we want the right to speak. Here is my speech and I want to talk about it, anything I want and you can't exercise the power of censorship. It is our contention that any such interpretation of the statute is a misinterpretation. The defendant in this case or the respondent in this case has associated with it several amici curiae. One of them in this case we will hear from shortly is a National Association of Broadcasters. They took a position before this situation arose in which they say that there was no right on the part of any station to be compelled to issue a broadcast because a candidate walked into the station and asked for it. They contended in the case of Port Huron and later on before the Federal Communications Commission, and later on before the Congress that the statute said just what we say it said. Now they are sitting here today and they will tell you that the position we take is wrong. They will tell you that the station is given immunity and they will tell you that the station can delete from its publication -- cannot delete from its publication anything that's libel.
Felix Frankfurter: Am I wrong -- am I wrong in feeling that there is a -- before you decide, before one determines whether there is or isn't immunity from responsibility setting out to the word libel, you must first decide whether it has any power of choice about it. Certainly as a human, as a human proposition, it makes a lot of effort if I have no choice to disseminate something and then sued for it than if I do have choice and exercise the choice so as to be the instrument of defamation. So don't you have to argue first whether a station is compelled to emit whatever any candidate is asking to emit? Isn't that a preliminary --
Edward S. Greenbaum: We agree. We agree with that and we say in this case there is no compulsion on the station's part. When I say there is no power of censorship, we contend that --
Felix Frankfurter: That depends, that depends on the construction of the no censorship clause or sections rather in the context of Section 315 and in the context of 315 for the purposes for which it was intended.
Edward S. Greenbaum: We contend -- we agree with that and 315 does this. It's an equality of time and equality of opportunity statute.
Felix Frankfurter: Yes, but there's that censorship.
Edward S. Greenbaum: That comes in --
Felix Frankfurter: You got to do -- you got to face that censorship.
Edward S. Greenbaum: That means what --
Felix Frankfurter: As you will be giving content and meaning, now what does it mean?
Edward S. Greenbaum: That's the question of what the word censor means coming from the roman language, censor, a government official. Now the Congress has very rightly put into 315 you can't do certain thing, and one of the things you can't do is to censor. Now what does the word censor mean? You can't give this man, what this Congress wants to do, the equal opportunity on the radio if you are saying, no you can't say that, oh no, nothing to do with this. And therefore as it was decided in the Sorenson case in the five years after the statute passed, no censorship means the trend of his ideas on social, economic, religious and other questions but not on the question of libelous, not on the question --
Felix Frankfurter: You mean -- you are not suggesting that I can get the answer to this problem by going to the Oxford dictionary, do you?
Edward S. Greenbaum: No we can get to the beginning of the answer.
Felix Frankfurter: Finding out in the roman institution, do you?
Edward S. Greenbaum: I think we got the beginning of the answer there. It's very unusual to use the word ‘censor' to someone else and Congress maybe had a difficult time in deciding how to phrase this, but the meaning is clear. It was -- it couldn't have anything libelous, and it couldn't have anything obscene, couldn't have anything blasphemous for provisions in the Communications Act that specially says that?
Felix Frankfurter: What it is being urged before us is that they couldn't even censor anything obscene, subversive, whatever that may mean or anything else?
Edward S. Greenbaum: The statute says that elsewhere. It says that you cannot say a thing. Suppose one of the candidate said, if I am elected President of the United States I will come down to Washington and do this, that and other thing to the President, there's specific provision in the statute.
Felix Frankfurter: And what's that, which statute?
Edward S. Greenbaum: The Communications Act, it says you can't threaten the life of the President. That's in the act and --
Felix Frankfurter: And the station, and the station -- it is your view, I am trying to elicit what your views are, it is your view that a station can say the script that you have given us (Inaudible) mean that if the president doesn't sign or veto bill, damage will come, do you think you can interpret, you can say to all these voir dires that's what this means. It will mean to the ears of our listeners and therefore you cut off that paragraph, do you think you can do that?
Edward S. Greenbaum: That's true. We contend and that's what the court below held. The court below held that --
Felix Frankfurter: I am suggesting that we have a brief submitted in which it is denied that that can be done.
Edward S. Greenbaum: Well there can be a difference of opinion but that is our contention if Your Honor please. I just want to say --
Felix Frankfurter: I am trying to find out the materials on which a judgment must be made in this case for which the dictionary meaning of the word ‘censor' is not the last word.
Edward S. Greenbaum: Well it is our contention that in the connection what Your Honor spoke about the statute has been interpreted by the court below and conceded on the other side, you can't say anything blasphemous and you can't say anything that violates the terms of the assessment.
Felix Frankfurter: Will they say you can't say anything blasphemous?
Edward S. Greenbaum: The statute doesn't say so, but the court --
Felix Frankfurter: But the court below.
Edward S. Greenbaum: Yes.
Felix Frankfurter: This Court has held that blasphemy is so vague a term that a statute containing it is unconstitutional for indefinite.
Edward S. Greenbaum: There wasn't, the word wasn't in the statute about blasphemous. I am familiar I think with the cases Your Honor has in mind, just one word in closing if I may sir? We are not against a broad use of television or radio in the field of communications of a campaign. It is our contention that this statute as construed by the defendants in this case does not lend to that construction. It is our belief that this -- if this judgment is affirmed it will restrict and not narrow the field for these two versions, first restricted at the station like WDAY, fear the public opinion as well as they fear and rightly so, that a monetary damage too. And the other reason is that we feel that they would not be deterred by feelings of that kind, that they want to carry out the honest intention of giving everybody his right to say things, but not defamatory things as they themselves say they regretted here. And we think this statute if affirmed would open up the doors for a field day for the future Hitlers and Stalins that will arise in this country. They will get free from any liability, except on their own part and they have none, stations such as this one and 4,000 others throughout the country, we contend that the case should be reversed.
Earl Warren: Mr. Bangert.
Harold W. Bangert: Mr. Chief Justice may it please the Court. As the Court is aware half of our time will be shared by the National Association of Broadcasters, as amicus. The respondent is a member of the National Association of Broadcasters and as such shares views largely that will express -- be expressed amicus. We, however, must limit our arguments essentially to the narrow framework of the case. And it leads us directly to Sorensen against Wood which we feel is the foundation of the confusion that has brought on this litigation today. In 1932, the Nebraska Court, in a dicta, the defendant in the action was not a candidate, in a pure dicta, had this to say. The defendant company like most radio broadcasters is to a large extent engaged in the business of commercial advertising for pay. It maybe assumed that this is sufficient not only to carry, it's necessary large overhead, but to make at least a fair return on its investment. Or it appears that the opportunities are so attractive to investors and the available airwave would be greatly overcrowded by broadcasting stations, were it not for restrictions of a number of licensees under the Federal Authority. Such commercial advertising is strongly competitive with newspaper advertising, because it performs a similar office between those having wares to advertise and those who are potential users of those wares. Radio advertising is one of the most powerful agencies to promote the principles of religion and politics. It competes with newspapers, magazines and publications of every nature. The fundamental principles of law involved in publication by a newspaper and by a radio station seem to be alike. There is no legal reason why one should be favored over another, nor why a broadcasting station should be granted special favors as against one who maybe a victim of a libelous publication. It must be remembered that in the 1927 the broadcasting industry as we know it today was about four years old. The respondent went into business in 1923 and is one of the oldest stations in the United States. It must be remembered too, that in writing in the provisions of the Radio Act, which became Section 315, the writers of the provisions, that is to say the members of Congress were particularly experts in the matter about which they legislate, the matter of that broadcast of non-censored material by political candidates. Therefore in one section of the Communications Act, the Congress said there shall be no censorship by government, Section 315, 316, and in another section, Section 315, it said that there shall be no interposition of a screen of public opinion by a licensee, a broadcaster in what field only where there was a candidate for office, and no other field. This is the limitations imposed in 1927. And this matter was considered in Nebraska, in case of Sorensen against Wood. In most distinguished amicus Lawrence Gold did a great deal of work and I am conceived, we argue upon the basis of this factual situation, that there is an equity, an equitable matter to be adjusted between broadcasters and the newspapers. That it would be inequitable and unfair to have a different rule of law for the two at the two advertising mediums, that were then in Professor Wowl's concepts vying with each other. Consequently Sorensen against Wood simply destroys the usual concept of the word sensor. Sorensen against Wood says that the words and there shall be no power of censorship means that the broadcaster is obligated to sensor. And this must of necessity be the petitioner's position here, that the broadcaster is obligated to sensor in all matters except in Sorensen against Wood, matters having political -- matters of political influence. Now this certainly does violence to the concept of censorship and the word censorship, and it precipitated 16 as General Greenbaum has said said, 16 different attempts by the same Congress, the continuing body, 16 different attempts to solve the problem. I would be less than candid if I did not say that I think that all Congress has done in these 16 times, is to fail to face the problem and arrive at a thought out conclusion. Because my preparation of this case must of necessity be away from the congressional record of the debates, I am not as familiar with that as I should like to be, but it does seem to me that it maybe said fairly in the brevity of moral argument, that Congress has arrived at nothing, there has been an argument here and an argument there. Now I understand that amicus, Mr. Anello will argue with you that there is something to be spelled out in Congress, and from the lack of congressional action, as the respondent has argued and the petitioner has argued, that there is something to be spelled out, but we most be respectfully assert that the Congress has failed to face up to the problem. Now where is television today, and this I think is the gravamen of our argument. Television, radio, electronic communication, was said by this Court to be a dynamic industry in the Pottsville case. The fact of it's dynamism is evidenced by the fact of our being here and by the truth of General Greenbaum's arguments, that it is a deplorable situation so far as this petitioner is concerned, that we a respectable licensed broadcaster attempting to discharge our obligations as a licensee, of the government licensing, are faced with the problem of presenting a deliberate libel under circumstances such as this. I should amplify the statement of fact made by General Greenbaum just to this extent and this is in the record. When Mr. Townley presented his case, his proposed writ to the broadcaster, the broadcaster examined it, advised him that it was in its opinion libelous and untrue and advised him to believe it to be untrue, refused to broadcast it unless a written demand was made, which was made under the provisions of Section 315, a demand under the mandate, as broadcaster understood it, and then instead of putting Townley on the air live, as could have been done, required Mr. Townley to film his telecast, so there could be no question of an ad lib remark, the (Inaudible), required him to film his telecast and then film, and then published it once, and I most respectfully correct to, published it once in accordance with its contract with Mr. Tommy and under the mandate of 315. This was the action that the broadcaster was forced to take under the provisions of the court here on decision and under the provisions of the WDSU warning, which came after, the only two things in my view, the only two concrete definite things that the commission has done, regardless of the arguments pro and con in the debates and before the committees, the only two things that the broadcaster is entitled and may look to for guidance.
Felix Frankfurter: Mr. Bangert may I ask you this that your station WDAY and other stations as I understand require that the candidate who want to send their messages over these stations submit the script before his play or introduced, is that right?
Harold W. Bangert: Yes Mr. Justice we do, yes sir.
Felix Frankfurter: I do not understand if the censorship is absolute, on what, by what right can they exact that?
Harold W. Bangert: It is the view of the respondent that it may require the script to be submitted as it requires all copy, commercial copy whatever to be submitted.
Felix Frankfurter: Yes, but commercial copy doesn't have a provision about North West --
Harold W. Bangert: I understand that sir, but the script maybe submitted for examination as is done, but properly so if it not been after examination excise -- material was excised from the script.
Felix Frankfurter: But I don't understand either the reason or the defense or the justification for making me submit my manuscript if you can't touch it.
Harold W. Bangert: It is justified generally in the industry sir as an administrative procedure warrant requiring the -- permitting the respondent licensees to operate in the public interest to see that obscenity is not in it, there are things that will be excised as the, as the petitioner has pointed out.
Felix Frankfurter: As this, the opinion of this Court have shown there are certainly not, there are certainly (Inaudible) excuse as to what does or does not constitute obscenity at least as much as to what constitutes libelous.
Harold W. Bangert: I understand.
Felix Frankfurter: At least as much.
Harold W. Bangert: And very recently stated.
Speaker: I'd like ask you a question? You very frankly say that in your view Congress had nothing on this subject to indicate on the immunity phase to give any light one way or the other, the statute certainly is completely silent on it. Where do we go from there, under your view, where should we go?
Harold W. Bangert: I think that leads right into the point I was about to make Mr. Justice --
Speaker: Oh I didn't mean to anticipate.
Harold W. Bangert: I -- where television is today, we are now going from 1932 to 1959, this is now the mass method of communication. I am always, I am close to this industry as you gather, because I have been the lawyer for this industry for 20 some years and I am always shocked at the lack of understanding of the massive effect to this industry not withstanding the effect, the way we protest the effect, but I am shocked at the lack of understanding that by people who otherwise I would think were well informed. For instance, in the leading article, in a leading article in the January issue of the Harvard Law Review, a very exhaustive study of the effect of 315, which had been cited by all parties, the -- demonstrating a study of the problem, a surveying of the industry, not casual comments at all, the authors start off with this language and I quote, “Radio and television have played an ever-increasing role in the conduct of election campaigns. In the 1956 campaign, the purchase of radio and television at time was the single greatest item of expense. The amount spent by the two major parties constituted more than 30% of their combined total cost.” This is the point. Although it is unclear whether political broadcast efficiently influenced the election result to justify such high expenditures there can be no doubt that the potential listening audience which a candidate may now reach is far in excess of what it has ever been in the past. This -- here the product of years of study by men of great capability presumably by a distinguished journal and yet an un – a lack of acceptance of the concept that this medium, and this is where I think we should go to (Inaudible), this medium is unlike any other art we have had by way of communication. This is, this is near the ultimate. This is entitled then to the consideration of this Court as a new medium, going back to Sorenson. It is not another extension of newspapers. This is -- we are not -- the government is not inhibited by the First Amendment. The newspapers are not licensed. We are licensed. This is the need that we face today. We need, I submit, we need a clear adjudication of the functions and the position of the Congressional statement, a clear interpretation of what Congress meant when it announced 315, this is what we need. Now I am aware I anticipate.
Speaker: Well I know but that doesn't give me at least any help because I am asking what you think we should do.
Harold W. Bangert: Yes.
Speaker: Are you suggesting that we should, in the absence of any light in the Congressional record as you say, we should imply an immunity provision into the, into the statute? Is that your position?
Harold W. Bangert: Yes, yes perhaps. I think, I think that the statute clearly says there shall be no power of censorship and I think that the court below, the North Dakota court in a qualified way said that there must be a federal immune -- must be a flow of immunity from -- I mean it -- a correlative rising of a immunity flowing from this prohibition, otherwise the respondent would be in a position, the respondent yes would be in a position argued by the petitioner that Section 315 as applied to the respondent violates the Fifth Amendment. We are in a position of being required to subject ourselves to an action for libel and the -- and unable to protect ourselves.
Speaker: What would you say about a different approach namely that if Congress has not indicated anything on the subject at all as to what the consequences would be, that the consequences are left to state law and state law applies with whatever consequences are attached to the federal prohibition against censorship?
Harold W. Bangert: I understand the course of that argument. I think that it would be unfortunate if the 48 states or the 50 states now were to determine in a peculiarly interstate art what below are libelous. For instance, we can perform, publish a libel in North Dakota and we reach North Dakota and we reach Minnesota, South Dakota, we reach all of these jurisdictions. The obligation to require the broadcaster to respond in every one of these jurisdictions where it could be reached or under the (Inaudible) receivership would be impossible.
Speaker: It is not very unusual thing under our system or under our court system?
Harold W. Bangert: I am not aware of situations with reference to this kind of an art.
Felix Frankfurter: Are you starting with the assumption that you must let every candidate, every fellow who has a right to equal time, to say what he wants to say no matter what?
Harold W. Bangert: Yes sir.
Felix Frankfurter: Starting with --
Harold W. Bangert: This is our assumption.
Felix Frankfurter: That's your assumption.
Harold W. Bangert: We have absolutely no right of censorship, we disagree with --
Felix Frankfurter: Why do you stop with that assumption?
Harold W. Bangert: This seems to be the clear words of the statute, it makes sense in 1927, we know of nothing that has changed.
Felix Frankfurter: Why does it make clear sense as to what -- not clear sense as to obscenity but clear sense as to libelous, I don't understand it?
Harold W. Bangert: There are many -- we have statutory provisions declaring it to be an offense, a criminal offense presumably deferent in certain, a criminal offense to commit certain acts, we -- you may not, we may not have to be citizens, as individuals--
William O. Douglas: You know, such things come in libel too?
Harold W. Bangert: Yes I understand those, but this again we get into the preemptive field where presumably the Congress says preempted.
Felix Frankfurter: Well I have no trouble about the consequences of displacement of state law (Inaudible) way of holding one's view about that kind of thing, I have no trouble at all that Congress in regulating the radio industry the way it has can displace the consequences of a reasonable regulation, what ordinarily would be controlling state law. But before I come to that, I want to know such displacement is required by the system of regulation .Particularly bearing in mind in addition to all that you said, differentiating your industry from newspapers that Congress explicitly refused to make radio stations a common carrier. It faced that question and it refused to do so, as you well know.
Harold W. Bangert: Yes. It seems to us that we have demonstrated the massive effect of the industry. We have demonstrated our helplessness in effect in the face of the federal communication's direct mandate to us.
Felix Frankfurter: If that -- when it starts there?
Harold W. Bangert: Yes that's right.
Felix Frankfurter: If one starts there. Suppose one doesn't start there?
Harold W. Bangert: Well one must start with the basic assumption Mr. Justice Frankfurter that ours is a government of opinioned people. We must have -- the whole predicate of our government is the free expression of opinion of people, and it is a dangerous business on a censor, whether he be a broadcaster or he be a government, when kind of censorship, it is a dangerous business when we are called the concept of censorship or as the petitioner would have us do, would accept the mandate of censorship and require us to determine whether or not as the dissenting opinion said in the Court below, whether or not this language was germane to the issue. The dissenting Justice said the fact that this is not -- that the Farmers Union is a third party, and not-- nothing can be germane to the issue, but --
Speaker: What was the premise for your statement that you would have a right of censorship over obscene matters?
Harold W. Bangert: It is my understanding that -- and in our brief and in petitioners brief, we cite the several statutes which declare it a criminal offense to broadcast obscene matter.
Speaker: The broadcaster? Send it through the mail?
Harold W. Bangert: Yes, and through the mail and to broadcast it as well. I'm sorry that I --
Felix Frankfurter: I think that would (Inaudible) First Amendment is inapplicable?
Harold W. Bangert: Well if in that event and of course Section 3 --
Felix Frankfurter: (Inaudible) that one may agree with you, and no one agrees with you more than I do as to the facts far reaching importance of keeping the channels (Inaudible) and free, but for one who doesn't take the First Amendment as a doctrine absolute, it doesn't answer the problem, it doesn't conclude the problem.
Hugo L. Black: What statute is it your are relying on that's permitting you to eliminate obscenity?
Harold W. Bangert: Nothing in this actual -- I'm reading Section 326.
Earl Warren: Where is that?
Harold W. Bangert: Section 326 of the Communications Act. And --
Earl Warren: (Inaudible) use the record?
Harold W. Bangert: I'm sure it's in the --
Earl Warren: All right, don't take your time, go ahead and read it please.
Harold W. Bangert: Section 326, it's very brief, “nothing in this Act shall be understood or construed to give the commission the power of censorship over the radio communications or signal transmitted by a radio station and no regulation or condition -- no I missed --
Speaker: In the footnote.
Harold W. Bangert: Yes I see. Oh yes the last sentence was repealed --
Hugo L. Black: Page 23, what page?
Harold W. Bangert: I'm looking at page 52 of the Communications Act. I understand. Now no person within the jurisdiction of the United States shall utter any obscene, indecent or profane language by means of radio communications. And that was said --
Hugo L. Black: Follows immediately after the Senate which says there shall be no censorship as to the radio station, doesn't it? It's a part of the same paragraph --
Harold W. Bangert: Mr. Justice Black that was transposed into the Criminal Code and this is why I'm (Inaudible)
Hugo L. Black: But that was passed originally by Congress.
Harold W. Bangert: Yes Your Honor.
Hugo L. Black: There are two provisions in there saying there should be no censorship, one in Section 19 originally and one in 29. 29 made it an offense however for any person to use obscenity.
Harold W. Bangert: Yes sir.
Hugo L. Black: Did it indicate any purpose to leave that up to the radio station to determine what was obscenity? Was anything in report that says --
Harold W. Bangert: No. We have interpreted it to mean that we are a party to the broadcast that is the broadcaster, in the nature of the publication (Inaudible) the media. It says no person within the jurisdiction shall utter any obscene or indecent language.
Hugo L. Black: Have either of those two original statutes which barred censorship by the radio station, been repealed in whole or in part?
Harold W. Bangert: No sir.
Hugo L. Black: They didn't change?
Harold W. Bangert: They have been changed by the elimination of this language of which we are talking and that was put into the Criminal Code. This is --
Speaker: Under your (Inaudible) if Colorado law governs as to your liability, what is the state of your law? Would you be libel? In North Carolina I think -- North Dakota I beg your pardon.
Harold W. Bangert: Well, if the libel, the publication of the libel, reached into a neighboring state, Minnesota or South Dakota, presumably the person libel, in this case the Farmer's Union which is a corporation in Minnesota, there is a separate corporation, could well come into North Dakota and under the diversity of citizenship --
Speaker: But what's your law, your state law?
Harold W. Bangert: The state law. This would -- then of course we have a conventional libel statute and it would govern, if Section 315 does not displace it.
Speaker: You would be libel, would you?
Harold W. Bangert: If Section 315 is not --
Speaker: If Section 315 doesn't, you would be libel?
Harold W. Bangert: Yes.
Charles E. Whittaker: Would you be entitled to (Inaudible) privilege of the (Inaudible) under the state law?
Harold W. Bangert: I beg your pardon sir.
Charles E. Whittaker: If you could show that under 315 you were compelled to (Inaudible)
Harold W. Bangert: That is the burden of the decision below. The decision below said.
Charles E. Whittaker: Well but it -- as I understand it, now I may be wrong, but the decision below says (Inaudible) immunity from 315.
Harold W. Bangert: Yes.
Charles E. Whittaker: But absent 315, what would be the North Dakota law?
Harold W. Bangert: We don't know.
Charles E. Whittaker: You don't know.
Harold W. Bangert: It has not been litigated. I mean my own estimate of it that it would, this would be a privilege communication. There is a case in North Dakota, Stafney against Standard Oil Company, in which a very similar question arose. The Standard Oil Company responded to an unemployment compensation question there as to why Stafney was discharged, and it wrote in answer to a question, misappropriation of funds. Stafney sued the Standard Oil Company in the state courts. The state court held that this was pursuant to a -- this having to fit the language to our statute, it was pursuant to the -- a privilege governmental order pursuant to a governmental order and absolved the Standard Oil Company's liability. This was (Inaudible)
Felix Frankfurter: Mr. Bangert, would you forgive me if I press you a little more on this obscenity because for me these are very far reaching questions, and one to whom the First Amendment is not an absolute, you have extra difficulty. You say and apparently all the briefs, except that of Liberties Union, (Inaudible) obscenity and so on. Why because obscenity is criminal, there is a provision in the Penal Code of the United States against obscenity. Well take the radio stations in Washington DC. There is a provision in the Penal Code of Washington against criminal libel. I do not know how I can assess criminal prohibition against obscenity as of a more superseding potency than the provision of the Criminal Code against criminal libel. Now in the district with its stations here, well we can't publish this because this constitutes a crime in the Penal Code of the district, in an Act passed by Congress, that's not your client, I understand that.(Inaudible)
Harold W. Bangert: [Attempt to Laughter] May I answer this by saying that criminal libel in North Dakota, the truth is a defense.
Felix Frankfurter: Yes, but there you can argue that the Federal Act displaced the state law, but in the district you can't have any displacement.
Harold W. Bangert: What is truth in any libel action, and what whether or not a matter is or is not libelous, is peculiar within the province of the jury.
Felix Frankfurter: So is obscenity.
Harold W. Bangert: Yes. This is the point that I'm getting at. Well maybe I just agree with you.
Felix Frankfurter: All right.
Harold W. Bangert: But the broadcaster cannot conceivably take a set of facts and know what an eventual jury determination is going to be, this is beyond this province. We cannot possibly determine what in the Sorenson language, of what is the political importance of this language? We cannot conceivably in this instant case finally determine as the court – we can't substitute our court --
Felix Frankfurter: I really am mindful of the difficulty you present but it's equally true about obscenity and it is equally true about threatening the life of the president particularly in the district, we have actually had cases of threatening.
Harold W. Bangert: Yes.
Felix Frankfurter: So I don't -- what troubles me, will you forgive me for saying don't give me much comfort [Attempt to Laughter] but differentiating the right of radio station to if you let me say so censor, obscenity and threat to a person's well being and yet not libel, I don't get the difference.
Harold W. Bangert: I have recently read one of your writing sir and -- in which you quote as a proof, Jefferson's letter with reference to the status of the newspapers to the effect that after all ours is a government based upon people's opinion. And he had to make the selection between newspapers with government or government without newspapers, he would certainly take newspapers with government.
Felix Frankfurter: I think I said that's not the wisest (Inaudible)
Harold W. Bangert: I don't require, I don't recall the qualification, but – I thank you for it.
Earl Warren: Mr. Anello.
Douglas A. Anello: Mr. Chief Justice, members of the Court, may I first address myself to Mr. Justice Frankfurter and add that is not the position of the National Association of Broadcasters, assuming sir, assuming the constitutionality for the moment of Section 315, that the broadcaster may delete anything, including obscenity. May I also sir, clarify something that I believe General Greenspan – General Greenbaum left a little bit up in the air, not concerned what chairman Coy really did say and on page 27 of our brief there is a colloquy between Mr. Coy and Mr. O'Hara of the Congress of the United States. Mr. Coy says the commission's interpretation of Section 315, where it say there shall be no censorship is that there shall be no censorship. If the stations in the various states of the country are censoring political broadcast for defamatory and libelous material, because under state law, they believe that they are libel for libel and defamation. The commission's position is that the federal enactment of the Section 315 has clearly invaded the field and that's the state's statute fall before the federal enactment. Then Mr. O'Hara, the thing that I want to know is does Section 315 repeals the laws of the libel and defamation Mr. Coy our contention is that it is does.
Felix Frankfurter: Would you be good enough to tell me what you think, why you -- what do you think the committee headed by Mr. Johannes in its first interim report that was out of that investigation meant when it said that it received Mr. Coy's insurance with great satisfaction, what kind of satisfaction. What satisfaction did he get --
Douglas A. Anello: That the station would be put upon notice before their license would be withdrawn and this was done in WDSU several years later when the commission said from now on, we will not listen to any excuses, but that the law to us is clear and Your Honors --
Felix Frankfurter: That is what I get from reading their report as a result of our examination that the court – you were on decision, your committee has received assurances from the commission that and I quote, (Inaudible) Mr. Coy who incidentally I respect, an old friend (Inaudible) for the time being at least until the matter is settled, the honest and conscientious broadcaster who uses ordinary common sense in trying to prevent obscene and slander statements from going out over the air. That's the assurance he gave him.
Douglas A. Anello: What they mean there sir is what the question that you directed to Mr. Bangert with respect to the scripts. There is nothing in the law that requires the submission of a script. However, every decent broadcaster would like to see or hear in advance what the candidate is going to say, or anyone else for that matter, hence he asked for a script. He doesn't demand it. And he tries to talk the candidate out of saying things that might be libelous or defamatory or obscene. And I believe Justice Frankfurter that is what the commission meant because certainly in WDSU several years later they left no room for doubt that they would add.
Felix Frankfurter: Well, to me it is kind of a - if were asked by a – if I were asked to make a broadcast and had unqualified power to say what I wanted to say, I don't want the station to argue with me that I should leave out something. That's also form of a censorship.
Douglas A. Anello: It is sir, it is, but at least it is a form of censorship by persuasion and not by mandate or fear.
Felix Frankfurter: Stations are also powerful and they might persuade me because I consider my self interest not to offend the station.
Hugo L. Black: Am I wrong in thinking that (Inaudible) quite a number of opinion by the commission in which they asserted, (Inaudible) asserted that they had -- would not censor for any purpose.
Douglas A. Anello: Well, there were two in particular quite -- well three, Port Huron in the matter of (Inaudible) and WDSU, but sir as recently as October 1958, the commission in a publication used the broadcast facility by candidates for public office, question 43 may a station delete material on a broadcast under Section 315 because it believes the material contained therein is or maybe libelous, the answer, no. Any such action would entail censorship which is expressly prohibited by Section 315 of the Communications Act. This is released by the commission. This is not just Chairman Coy, this is 10 years later, 11 years later the same identical language.
Earl Warren: Is that a regulation?
Douglas A. Anello: Yes sir, this is if you read the questions and answers there are some -- 61 and this was adopted October 1, 1958.
Felix Frankfurter: It is a fact that the 21 years they made no ruling, is it?
Douglas A. Anello: No.
Felix Frankfurter: Or is it so for 21 years we had no administrative ruling.
Douglas A. Anello: That is correct sir.
Felix Frankfurter: And since ‘48 they did the best they could, didn't they?
Douglas A. Anello: I guess so.
Felix Frankfurter: Would you say there has been a continuous uninterrupted unquestioned administrative ruling on this subject?
Douglas A. Anello: Since 1948 yes sir, continuous and non --
Felix Frankfurter: Even that is as the renewals and the commission itself that they may take into account whether a station permitted libelous stuff, didn't it?
Douglas A. Anello: Well, they said they would take into account whether or not a station exercised a power of censorship as I understand. Yes sir.
Felix Frankfurter: But I don't understand how if -- for the station has absolute right not to – a duty not to censor they can take into account, that it has censored and yet grant a renewal as they have, haven't they in stations that have offended that rule?
Douglas A. Anello: The commission renewed Port Huron, they renewed, WDSU, they have, but sir fact is this, that Congress had known of these consistent interpretation and I place the opposite connotation upon their failure to act. If they have acquiesced in the interpretation by the administrative agency, the agency created to carry out their wishes.
Felix Frankfurter: As you well know this Court has in many cases, not of this sort, found significance in the fact that one house had a provision in the law which the other house struck, this Court in many instances has found significance in that kind of a legislative unfolding, that's true isn't it?
Douglas A. Anello: Yes sir.
Felix Frankfurter: And in this case we've had on several instances provisions expressly (Inaudible) knocked out by the other house, has that any significance?
Douglas A. Anello: No sir, no more significant than the fact that the Congress has known exactly what the commission is doing what it is holding and has still failed to say either way. They could just as easily as have said and nothing in this statute shall immunize a radio station.
Felix Frankfurter: So I say that you cancel each other that's my answer.
Douglas A. Anello: (Inaudible) but sir --
Hugo L. Black: I presume you give some weight to the fact that Congress in the first act and ever since has repeatedly said they could not censor.
Douglas A. Anello: Yes sir.
Hugo L. Black: Do you know of any case in the history of this country where Congress has made it a crime for somebody to do something and then permit a state, talking about state law, then permit a statement to come along and put him in jail for it?
Douglas A. Anello: I do not sir. That would completely unconscionable in my opinion. It would violate all the theories of fair play, justice or anything else that we have had in this country. I know of no such thing.
Hugo L. Black: And with reference to their liability obscenity, did the first act also have in a provision making a violation of its provision a crime punishable by both a fine and up to five years in prison?
Douglas A. Anello: I believe sir that the original Radio Act of 1927 contained in it a provision. It also had the no censorship by the government agency and it had substantially the same as 315 --
Hugo L. Black: (Inaudible)
Douglas A. Anello: Yes it had the no censorship by government, no censorship by the licensee. I believe that it also contained a provision that whoever shall utter any obscene or indecent remark over radio shall be subject to a fine of $1,000 or a year in jail. I believe that, that was in the original 1927 Act, I know it was in the 1934 Communications Act, but then I believe in 1948 it was deleted and removed to the Criminal Code. But I say that there again that is not significant, because it also says whoever shall utter, meaning or implying to me at least that the man may utter and then suffer for his consequences. Now here again, the petitioner has stated they have no remedy, but they do have a remedy, they have a remedy against the speaker. The speaker is under no compulsion to speak, the station licensee is under compulsion to put him on. I indicated earlier that, we had some reservation as to the constitutionality as Section 315. They are based upon two factors. One the no censorship carries with it immunity and if this isn't so, I then respectfully submit that 315 is unconstitutional as being a deprivation of due process, because it imposes absolute liability without any control whatsoever, and this is a theory unique, it would be alone in our system of American jurisprudence.
Felix Frankfurter: But that was the starting point, but there must let anybody say anything.
Douglas A. Anello: I believe the words no censorship mean exactly what they say, no prior restraint of any kind. I think Near versus Minnesota is still the law at this Court. And I know of no case, where anybody has ever been enjoined from the publication of a libel. The only infringement upon the First Amendment in that respect, of which -- with which I am familiar relate to upholding certain police regulations that will permit punishment after publication, but even there not prior.
Felix Frankfurter: A newspaper doesn't have to put in any ad that I offer it, does it?
Douglas A. Anello: It does not sir and that brings us to my second point. Petitioner would equate us with newspapers insofar as they say that newspapers are held libel without fault, but it is one thing sir to argue liability without fault, but quite another to argue liability without control. Newspapers may print what they please, they may excise, they may edit. They have no regulatory body to whom they must account every three years, nor any Section 315 telling them what they may or may not do. Equality with newspapers operating under the same conditions with the same complete freedom, responsible only to the bar of public opinions is a consummation devoutly to be wished by every broadcaster in the United States and maybe the time has come when this Honorable Court should take a look at Section 315 from that perspective.
Speaker: This case hardly presents the case that you have, does it?
Douglas A. Anello: Well sir I believe that the constitutionality of 315 is raised, in that you are asked to interpret 315 and you might very well choose to strike it down as being an infringement based upon the First Amendment with a right of a broadcasting station. This Honorable Court and many others have held that insofar the protection of the First Amendment is concerned, both broadcasters and newspapers are entitled to its protection. Now I wonder what would happen --
Felix Frankfurter: You never described what the scope of (Inaudible) We've never decided the scope of the (Inaudible)
Douglas A. Anello: No sir, you have not, and this might be the opportunity within which you might do it. Mr. Justice Stewart, may I address myself to this. What do you suppose would happen, if I maybe pardoned for asking you a question, to a statute, that would say that in order to get second class mailing privileges, a newspaper would, if it carried the speeches of one political candidate would have to carry the complete unexpurgated speeches of another or of every other political candidate. Now under your own doctrine in Hannegan versus Esquire, I believe you stated that a condition requiring the dissemination of beliefs, religious or political would be stricken down as unconstitutional. True it was dicta. You did not have to arrive at that conclusion in the case, but that's language in the case. I believe I have the exact quote here, a condition that certain economic or political ideas not be disseminated. We submit that the reverse is equally true, we say that if --
Potter Stewart: Now here is my question Mr. Anello is this, and perhaps I'm wrong, you tell me if I am, does this case as it comes to us from the North Dakota court, involve any attack upon the constitutionality as such of Section 315?
Douglas A. Anello: Justice Stewart it does not. The North Dakota court relied completely upon Section 315. It held at Section 315 preempted the field. The federal government had entered the field and there was nothing for the states to regulate.
Potter Stewart: And you're in agreement with that position for the purpose of this case, are you?
Douglas A. Anello: Yes sir, I am in complete agreement with that position.
Potter Stewart: And you're not really arguing here that Section 315 is unconstitutional?
Douglas A. Anello: No sir I predicate it, we predicate it in our brief upon it and our oral agreement.
Felix Frankfurter: This case could have gone off on state grant couldn't it?
Douglas A. Anello: On a state ground --
Felix Frankfurter: It could have gone off on a state ground --
Douglas A. Anello: Well the Solicitor General raised that question Mr. Justice Frankfurter, on the theory that there was a statute in North Dakota, the lower court has held unconstitutional. That statute would have protected any broadcast station from any libelous statement irrespective of whether it was made under the compulsion of 315 or not. My --
Felix Frankfurter: As a matter of local law.
Douglas A. Anello: As matter of -- yes sir. But, the Court chose to decide it upon a federal ground and I believe that Anderson versus Brian is authority for the proposition that the mere fact that a lower court may have decided it on a local ground, if however it decided the case on federal grounds, then it is properly within the purview and jurisdiction of this Honorable Court.
Charles E. Whittaker: (Inaudible)
Douglas A. Anello: I beg your pardon sir.
Charles E. Whittaker: (Inaudible)
Douglas A. Anello: Well that might have been Mr. Justice --
Charles E. Whittaker: (Inaudible)
Douglas A. Anello: It was not, that is correct sir, that is correct.
Charles E. Whittaker: (Inaudible)
Douglas A. Anello: They held the North Dakota statute unconstitutional, yes sir. I --
Felix Frankfurter: The North Dakota court, that we are going to make the Supreme Court of United States decide federal questions.
Douglas A. Anello: That is correct sir.
Felix Frankfurter: Isn't that right?
Douglas A. Anello: Yes sir. 31 years, trying to get the case up here, we finally have succeeded.
Felix Frankfurter: At an accommodating court.[Laughter]
Douglas A. Anello: Very much so. But I would like to analogize this newspaper, radio station position a little more closely. Let us examine the situation in 1927, when the Radio Act was first promulgated. At that time as you all know there was chaos because stations encroaching upon each other, and so the Congress established a Federal Radio Commission, at that time there were some 600 stations on the air. The Congress enacted comprehensive legislation, because it felt that is -- that the radio spectrum was limited, so the number of stations would never be too many, but what do we have? We have today over 4,800 radio and television stations in the United States. Now what's happened to newspapers in the same time? In 1930 there were roughly 1,900 daily newspapers, today there are 1,800 daily newspapers. Now the argument has been made that it is competition that causes a newspaper to either prosper or wither. It serves its readers and that is why apart from any First Amendment you need no regulation, assumedly you might because it's interstate commerce if a newspaper sends editions in the various states, you might concededly issue a regulation there, but no, the First Amendment protection. Well, the same thing might be said of radio stations. With 4,800 stations on the air, I believe that competition will determine which survives, which will program in the public interest and which don't, I am confident that the American people may make the judgment, that those that do not serve the public interest by their programming, without regard to the FCC or any other legislative or regulatory body will fall by the wayside.
Felix Frankfurter: Are you suggesting, I suppose you are -- that if newspapers are regulated, you might get more competition?
Douglas A. Anello: I am not sir. I am saying that I believe that one of the reasons for not regulating newspapers apart from traditional freedom of the First Amendment is that the ordinary competitive forces will force the newspaper to cater to the public taste, because it is said anybody can start a newspaper. That means anybody who can buy a printing press, ergo if you build a better newspaper, you will get readers, and if you don't you will lose readers and your circulation and your advertising revenue, but both of us, both newspapers and radio stations live by their advertisers, which in turn means that we must have readers in order to secure revenues. In summation, I would like to say that our position is this. Section 315 as we view it, both in the light of congressional intent, historic decisional law and that law is applied by the Federal Communications Commission, prohibits censorship by broadcast licensees of political candidates for the same office, and this means no prior restraint. By the same token at the very least, the principles of fairness and justice, administrative interpretation, congressional acquiescence and congressional failure to amend the law in view of their knowledge of the administrative interpretations indicate that automatic immunity must flow and if such is not the case, we believe the section is unconstitutional as being violative of the First Amendment and that it would take the broadcaster's property without due process, the property which he would be powerless to protect. Thank you.
Potter Stewart: Just before you sit down Mr. Anello, did I understand you to say at the very outset that you disagreed with Mr. Bangert to the extent that it's your position that under the statute, the licensee is powerless even to censor --
Douglas A. Anello: Obscenity.
Potter Stewart: Hardcore obscenities --
Douglas A. Anello: Yes sir.
Potter Stewart: It's conceded it seems –
Douglas A. Anello: Yes sir.
Potter Stewart: -- without getting into the question of what obscenity may or may not be.
Douglas A. Anello: The way the statute is written, yes sir.
Earl Warren: Do we have to go to that far to --
Douglas A. Anello: I don't think so. I do think that I can play a little mental gymnastics and probably I think Justice Stewart put his finger on it, the hardcore, there are certain word that are obscene, and I suppose you might argue that because there is a statute that specifically states that the utterance of obscene words are punishable. Then you might argue that the Congress when it said no censorship was accepting that hardcore of obscenity from the term no censorship, but we don't find that with respect to libel, but I would say that requires a little mental gymnastics on my part Mr. Chief Justice.
Earl Warren: A direct incitement to crime?
Douglas A. Anello: A direct -- that's right, because obscenity it is said serves no useful purpose. The dissemination of political information is exceedingly important and what is libel? Well, in Campbell versus Connecticut you said in the realm of religious faith and political beliefs what's heresy to one is faith to another. You cannot determine in advance what is libelous in a political speech. It will vary from jurisdiction to jurisdiction. It might be libelous in Maine or not in Texas. It depends upon where it is and broadcast stations have no walls around them, unlike newspaper. They reach the four corners of the United States. You may censor or not censor, but the damage is done, it's gone.
Felix Frankfurter: We have had Mark Antony's speeches in actual political life and not merely in Shakespeare's plays.
Douglas A. Anello: Thank you.
Felix Frankfurter: People can be very skillful in dealing with other (Inaudible)
Earl Warren: Mrs. Pilpel.
Harriet F. Pilpel: Mr. Chief Justice and may it please the Court. I think that some of the sessions have gotten away from the central issue in this case, which is whether under Section 315, Station WDAY, the respondent in this case is immune from damages for broadcasting material which was admittedly libelous about our client, the Farmers Educational and Cooperative Union of North Dakota. As Mr. Bangert said in his argument, Congress has not conferred any immunity from such a suit as this, and as Mr. Justice Harlan indicated in his question, over and over again Congress has been asked to legislate this immunity and over and over again Congress has refused so to legislate. Mr. Anello who immediately preceded me, gave reasons why he did not think the Congress could be said to have acted against immunity in this situation, but in a brief filed by his own association, a little over ten years ago, which I have in my hands and which was submitted to the Congress in connection with the hearings on the Port Huron case, he said it seems equally certain that they did not -- that Congress determined to say out of the field of defamation and to leave the state laws on libel and slander untouched. There is no provision in Section 315, which confers any immunity on a radio or television station for broadcasting libelous remarks. There is another provision in the Federal Communication Act, namely Section 414 which states specifically that the Act shall not be construed in such a way as to abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter shall be in addition to such remedy. By arguing as we found that Mr. Anello does, it seems to us that they totally over list the existence of Section 414 and read into Section 315, words which are obviously not there. I say obviously not there because as has been apparent in the course of this argument, there have been repeated efforts to put them there. This is not a case of Congress having not acted. It's a case in which Congress acted by refusing to legislate immunity. No one had even made any contention that broadcasters were immune from liability, until 1948 in the famous Port Huron case which we've already discussed. As a matter of fact, some three years before that, the commission itself had expressed great doubt as to whether or not an immunity existed in the Bellingham case and had specifically tabled that question and said we are not called upon to decide whether there is an immunity under state law or not. When the Port Huron case came along there followed the congressional hearing which we have already discussed, then the case of WDSU reiterated Port Huron about the meaning of censorship, but did not categorically assert that there was an immunity. As I recall the words of the commission in the WDSU, there was something like whatever maybe the rule as to immunity we hope such and such as the censorship. Shortly after the decision in the Port Huron case, there were further considerations of the matter in Congress and the house tax and immunity amendment which was rejected again in 1952 by the Conference Committee, and this time in report number 2426 82d Cong., 2d session, which is cited on page ten of our reply brief, the Committee of Conference stated very definitely what it thought it was doing. And I quote what they said, “The committee of conference agreed to omit the provision with respect to liability of licensees in civil or criminal actions because these subjects had not been adequately studied by the Committees on Interstate and Foreign Commerce of the Senate and the House of Representatives. The proposal was adopted in the House after the bill had been reported from the House Committee. The proposal involves many difficult problems and it is the judgment of the Committee of Conference that it should be acted on only after full hearing has been held.” Since that time identical bills have been introduced into Congress on either six or seven occasions and on each such occasion Congress has expressly refused to legislate the immunity which the Supreme Court of North Dakota held existed in this case. Apparently no one seriously denied this Congressional history but the allegation is that you can infer immunity from the no censorship provision of Section 315 in the teeth of Congressional refusal to declare immunity. I would like very briefly to address myself to a few questions which came out in the course of the discussions that preceded my getting up. One was Mr. Bangert's statement about the (Inaudible) of having 48 or now 50 different laws of libel. I am sure it's not necessary to call to the attention of this Court that in all of broadcasting, except possibly under section 315, there are 48 or 50 different state laws of libel which apply. Mr. Bangert argues the case as if he were pleading for a federal law of defamation applicable to all television and radio broadcasting. There is no such federal law. Congress has not chosen to act, even assuming it had the power to act. What the licensee does everyday is to act with reference to the laws of 48 or 50 different states? Furthermore as to whether the prohibition of Section 315 on censorship is absolute, which some of Your Honors have asked, I would like to call your attention to the fact that the Supreme Court of North Dakota in two instances acknowledged that it was not absolute. In the first place it quoted with approval and we cite that -- this appears on page 37 of the record, the statement of the Federal Communications Commission itself indicating that the censorship -- the no censorship provision is not absolute. The commission said and I quote here on, “Nothing in this opinion is intended to indicate that a licensee is necessarily without power to present to broadcast of statements or utterances in violation of the provisions of the Communications Act or any other federal law on broadcast coming within the requirement of Section 315 of the Communications Act.” I don't believe the commission has ever retreated from that position. The second thing that the North Dakota Supreme Court did by way of I think revolt against its own apparently absolute standard was to say in its judgment on (Inaudible) not that the station could not -- was immune for all statements but only that the stations were immune from liability for defamatory statements made by candidates, and the exact words of the court, the judgments are “where such statements are germane to the political issues discussed by such candidates,” this appears at the top of the page 52 of the record. We submit that the standard of germaness which apparently was used by the court below is a standard which would clearly be in violation of the no censorship provisions of Section 315. We do not believe that that is true of any standard which would permit a licensee to continue to function in accordance with state law that is to refuse to aid and abet the commission of an act in the state which would violate either the civil or the criminal law of the state.
Earl Warren: Mrs. Pilpel, suppose the court came to the conclusion that under 315 this station was compelled to take -- take the script of any candidate and suppose it was also of the opinion that it had absolutely no power to censor that script, would it still be you position that the station is libel?
Harriet F. Pilpel: Your Honor it would definitely still be our position that the station is libel because we believe that the two of -- the innocence of the station totally overlooks the innocence of the third party plaintiff which is whom we are representing. If we take -- if the Congress has created a situation in which the station is impudent to delete libels then we are faced with two innocent third parties. The station is one innocent third party and the innocent bystander is the other innocent third party. Now the station is in my opinion far more likely -- should be the one on whom liability is accessed as between the two for many reasons. In the first place no one has mentioned that Section 315 specifically states that no station shall be under any obligation to take any political candidates' broadcast. So if it does not wish to be riddled with liability in such a situation. It can simply refuse to accept any political candidates' broadcast. In the second place, we believe that the station is in a position where it could protect itself in a variety of ways in a situation in which Your Honor mentioned. For example it could ask the candidate to set -- to put up a bond, an indemnity bond so that if the station would have libel, it would have some protection on the indemnity bond of the candidate. The third party can't possibly do that because he doesn't know it's going to be this third party.
Earl Warren: Do you think that the, that the station has the right to demand of a candidate that it put up a surety bond that it will not, not injure anyone else?
Harriet F. Pilpel: I believe Your Honor that the purpose of Section 315 was to create equal opportunities among political candidates, and therefore my answer to your question is that if there were no discrimination in this requirement, if the station elected to take political broadcast, political candidate's broadcast and said to all political candidates still on Your Honor's assumption that they can't take out libel. This puts us in a position where we maybe responsible in damages. I see no reason why I could not equally say to all such candidates we will ask you for the indemnity bonds. And --
Earl Warren: There would be nothing, there would be nothing in the Communications Act, in any federal statute to prevent that?
Harriet F. Pilpel: We don't believe there's anything in the act. We are aware of the fact that in somewhat seem to us rather unclear expressions of opinion on the part of the commission, there has been some doubt expressed as to whether this would be equal treatment of candidates with all other speakers. But we feel that every statute must be given a reasonable interpretation that if Your Honors should feel that no censorship means no right to delete the libel and since as we submit there is no immunity, it would not be unreasonable if all candidates were equally required to put up a bond, but even if we are wrong on that, the station could still protect itself in a third way namely by taking out insurance. The fact is that many stations are presently covered with insurance and while it is true that if Your Honors would hold the way you've indicated it might be that the insurance would get more expensive. The fact we have ended, it's quite inexpensive now and even if it become more expressive political candidate business is a very profitable business. Our brief points out that in the 1956 campaign, the radio and television stations made about $10 million on political candidates' broadcast. And we would think that if you are in a position where you have to choose between a broadcaster who knows that he is assuming a risk and who deliberately assumes it and who has (Inaudible) of protecting himself, it would be left unreasonable to impose liability on him than it would be to impose liability as has been done by the court in this case on the innocent bystander, namely the plaintiff.
Earl Warren: Did I understand you to say that some of the stations do take out insurance against libel in the political campaigns?
Harriet F. Pilpel: We understand that the stations have a general form of coverage which would cover their liability for defamation in all situations.
Earl Warren: Including political campaigns?
Harriet F. Pilpel: I am not aware that there is any distinction in the policies between political campaign and any other kind of broadcasters.
Earl Warren: There might have been lot of difference; practically they don't have to take everything, do they?
Harriet F. Pilpel: They don't have to take political candidates, that's all there is. As I said Section 315 specifically says no obligation is imposed to accept any broadcast on behalf of any political candidate, but if you accept any then you must give equal opportunity to all other candidates for the same office. So it is strictly matter of their own decision whether they want it or not.
Felix Frankfurter: You speak very confident and I am not surprised you do, in construing that statute as disallowing, it leaving a station free to accept no candidate, but as I understand that that is within the operating etiquette of the commission. They have refused renewals where a station has exercised that right on the ground that it's against public policy for them to exercise that right.
Harriet F. Pilpel: I don't want to be in a position of attacking the commission but if --
Felix Frankfurter: And I don't want to be – you defending them I guess –[Laughter]
Harriet F. Pilpel: I would like to say with respect to that, they -- the commission has somewhat vacuolated in its ruling that whether -- as to whether a refusal to accept candidate's broadcast is to count against it when the question whether they are operating in the public interest as is said. There is no question but the Section 315 says they have no obligation.
Felix Frankfurter: That is to say -- to use the word you used nobody else has referred it up to now that seem to be very important, it's bearing on the kind of obligation that rests on station. If my reading of English would not obscure by the interpretation that the commission has placed upon it, I should think the sentence is pretty clear that they can keep hands off and not accept any political fraudulence. So I think that's -- not only as a commission -- you call it vacuolating -- vacuolating as it is -- not only has it acted on the opposite attitude, but generally meaning through the reach you are looking at them, there is wise good assumption that's all right. In fact it's one more illustration that this case involves the problem in it have more darkness shed upon the question before us --
William O. Douglas: But aren't there commission rulings that if you don't give facilities to candidates from public office that you -- that can be used against you when you apply for a renewal license or --
Harriet F. Pilpel: I question although that's not involved in this case, whether the commission by holding that the public interest criterion requires political candidate's broadcast, has gone against Section 315, which specifically holds that they are not required to carry such –-
William O. Douglas: But there are such –
Harriet F. Pilpel: -- there are such rulings. To the best of my knowledge Your Honor no station has been denied a renewal of a license on that ground but I think that the commission has warned them from time to time if they will consider that as part of appraising their overall --
William O. Douglas: So there maybe a practical pressure --
Harriet F. Pilpel: There maybe unless that -- it was clarified in a decision for example in this Court which would state that no obligation to carry political candidates' broadcast, which is a specific position. It cannot be used -- the opposite of that cannot be used in terms of the general criterion of the public interest, because to that extent the commission has whittled down the words of Section 315 as to no obligation.
Felix Frankfurter: But as your argument indicates that you can properly utilize that Section 315 (Inaudible) it bears down the central question (Inaudible) commission if a station is free not to accept any political (Inaudible) whatever effect that they have upon it (Inaudible) the sufficient knowledge in most instances, who the political candidate will be to cover (Inaudible) and in order avoid taking his stuff (Inaudible) I just not have any other body so you have indicated, that's one of the protection of --
Harriet F. Pilpel: We believe that's so and Your Honor also just mentioned something which I think points to another important factor and that is that we are not a political candidate. And therefore if you were to hold some rule of non immunity or something with reference to political candidate we would still urge that you hold with the dissenting judge in the court below then when it comes to a client like ours who is an innocent third party, who has no right of reply, who under the statute has no right to equal opportunity that that person must be given a remedy or he is totally without recourse. Thank you Your Honors.