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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   October 1998  issue

Second- Guessing News Judgment   

A federal appeals court orders the FCC to take a harder look at a CBS broadcast.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

It is a basic tenet of constitutional law that the government may not sit in judgment of the accuracy of a news story.

Unless, of course, that story is produced by a broadcaster.

Ever since 1927, when Congress created the agency that became the Federal Communications Commission, broadcasting has been subject to regulations that could never be imposed on the print media, in the name of promoting "the public interest, convenience and necessity." Besides being required to obtain a government license before operating a station, broadcasters must carry political advertising at designated rates and adhere to children's programming rules. And until the FCC abolished it in 1987, broadcasters had to comply with the Fairness Doctrine, which forced them to cover controversial issues of public importance and to provide an opportunity for contrasting viewpoints to be heard.

The commission also has a policy against "news distortion" --staged events or other practices designed to slant the story or mislead the viewer.

For decades, aggrieved individuals and special interest groups of all stripes have tried to convince the FCC that it should punish broadcasters whose programming "distorts" the truth as they see it. For the most part, the FCC has been reluctant to interfere in the news judgments of broadcasters.

In 1969, the commission said that "rigging or slanting the news is a most heinous act against the public interest. But in this democracy, no government agency can authenticate the news, or should try to do so."

Against this backdrop, the FCC rejected complaints filed by Alexander Serafyn, an American of Ukrainian ancestry, after "60 Minutes" aired a segment in October 1994 titled "The Ugly Face of Freedom."

Serafyn contended that CBS was unfit to hold broadcast licenses because, he claimed, "60 Minutes" had painted an inaccurate picture of post-communist Ukraine. He said the program had aired, out of context, a rabbi's statements about the anti-Semitic views of certain radical Ukrainian groups, mistranslated a term for "Jew" as the ethnic slur "kike" and refused the help of a professor of Ukrainian history who offered to give perspective.

Serafyn argued that angry letters from viewers demonstrated significant factual inaccuracies in the program. Most damning of all, he said, "60 Minutes" had no written policy against news distortion; based on quotations attributed to correspondent Mike Wallace and Executive Producer Don Hewitt in the Washington Post and People magazine, he argued, the program actually condoned it under certain circumstances.

CBS declined to submit evidence in its defense, taking the position that an official investigation of its news programs "offends the protections of a free press."

After the FCC rejected Serafyn's complaints, he appealed to the U.S. Court of Appeals in Washington, D.C. In a unanimous opinion on August 11 by Judge Douglas Ginsburg, the three-judge panel reversed the FCC ruling, finding that the commission had acted "arbitrarily and capriciously" when it threw out Serafyn's claims. The judges told the commission to try again.

Although conceding that each individual item Serafyn raised, taken alone, might not be enough to prove his claim, the court said the FCC must reconsider all the evidence and decide whether, taken as a whole, it raised the possibility that the broadcast had distorted the news.

Ginsburg's ruling stands in stark contrast to opinions by legendary jurist J. Skelly Wright, who before his death was chief judge of the D.C. Circuit. Wright wrote in 1985 that the FCC's tough standards of review reflect "an appropriate respect for First Amendment values." As he pointed out in an earlier case involving a Fairness Doctrine complaint, "defamation of a broad group or class is not usually actionable. And this kind of speech, detestable as some of its anti-Semitic and racist aspects may be, approaches the area of political and social commentary. To this extent it makes a stronger claim for First Amendment protection" than would libelous statements about individuals.

No one condones fabrication of news. But controversial issues by their very nature invite complaints of bias, inaccuracy or distortion.

Critics complain that broadcasters deal in fluff and sensationalism rather than substance. The few who do take on hard news stories must weigh heavily the risk of being sued for libel, invasion of privacy or worse. If the D.C. Circuit Court forces the FCC to assume the role of truth tribunal, the inevitable consequence is that broadcasters will be discouraged from covering controversial issues at all.