J. SKELLY WRIGHT, Circuit Judge:
The question on these appeals is whether the Federal Communications Commission abused its discretion in holding that a 25-minute program broadcast by the Democratic National Committee, setting forth views on public issues in response to views previously presented by the President and presidential spokesmen in a number of broadcast appearances, gave rise to an obligation on the part of the Columbia Broadcasting System to provide comparable reply time to partisan Republican spokesmen. For reasons that follow, we reverse the Commission's order.
Television has become, in recent years, a principal vehicle by which the President presents to the public his views on important issues of the day. Indeed, no single fact of our changing political life overrides the significance of the expansion of the President's ability to obtain immediate and direct access to the people through the communications media. For the words of the President, speaking as he does both in his constitutional roles of chief executive and commander-in-chief and in his extra-constitutional role as head of his party, carry an authority, a prestige and a visibility that have a counterpart in no other institution.
Moreover, there is an inherent newsworthiness in anything the President says. In addition to his huge direct audiences, in most cases over all nation-wide commercial television and radio networks simultaneously, all of what he says is later reported somewhere and something of what he says is reported almost everywhere. In the case of the incumbent administration, these built-in advantages of the presidency in forging public opinion have been used to an unprecedented degree. In his first 18 months in office, President Nixon appeared on network prime time (7:00 to 11:00 P.M.) television as often as Presidents Eisenhower, Kennedy and Johnson combined in a comparable period during their administrations.
The President's extensive use of the media cannot, of course, be faulted, for there can be no doubt that in the distillation of an informed public opinion such appearances play a very basic role. But if the words and views of the President become a monolithic force, if they constitute not just the most powerful voice in the land but the only voice, then the delicate mechanism through which an enlightened public opinion is distilled, far from being strengthened, is thrown dangerously off balance. Public opinion becomes not informed and enlightened, but instructed and dominated.
To minimize the risks of such imbalance and to preserve the essential integrity of "politics through communication," the television networks, under the occasional prodding of the courts and the Federal Communications Commission, have attempted to achieve a balanced presentation of opposing opinions. This balancing process has extended not only to regularly scheduled news broadcasts, specials and documentaries, but also to
In this spirit, on June 22, 1970 CBS offered Lawrence O'Brien, Chairman of the Democratic National Committee (DNC), 25 minutes of broadcast time for presentation of views of the Democratic Party on public issues. The offer was made in light of the "cumulative impact of broadcast appearances of representatives of the party in office" and "the disparity between presidential appearances and the opportunities available to the principal opposition party" in order to achieve "fairness and balance in the treatment of public issues."
Mr. O'Brien accepted the CBS offer and the broadcast was aired on July 7, 1970. The format employed involved presentation of excerpts of previously broadcast presidential statements on various issues, followed by a critical commentary or rebuttal by Mr. O'Brien as to each presidential statement.
On July 8, 1970, the chairman of the Republican National Committee (RNC) requested CBS to provide free time to RNC comparable to that afforded for the July 7 broadcast.
In substance, RNC argued that a national committee such as DNC was an inappropriate spokesman "to discuss specific political, economic and social issues — the `gut issues.'"
On July 23, 1970, CBS submitted a letter in opposition,
Although the Commission agreed that "CBS has acted in good faith" and "is to be commended for its concern,"
Having found the broadcast to be "unresponsive," however, the Commission then concluded that it therefore fell within the ambit of the Commission's recent Zapple ruling,
On August 20, DNC filed a petition for reconsideration of the Commission's initial opinion.
The RNC opposition to the CBS petition for reconsideration
The Commission conceded also that its August 18 ruling "did not take into account
Finally, the Commission never addressed itself to the contentions advanced by CBS concerning the Hays ruling. The citation of Hays in a footnote,
One last matter must be mentioned before turning to our resolution of the issues presented on this appeal. Although the Commission's brief, in line with the opinions below, strenuously argued that the "unresponsiveness" of the O'Brien broadcast gave rise to a right of reply in favor of RNC, at oral argument, to the astonishment of this court, counsel for the Commission urged that we disregard the responsiveness issue and, rather, that we uphold the Commission's order on a totally new ground — that an RNC reply is mandated simply because CBS failed to dictate to DNC the precise issues to be discussed, without regard to the actual content of the broadcast. We return to this matter below.
Much of our evolving body of administrative procedure rests upon the cornerstone requirement of reasoned decision making. 2 K. Davis, Administrative Law Treatise § 16.12 (1958). Without such a requirement, effective judicial review would be impractical if not impossible, and administrative litigants and the public generally would be set adrift on a potential sea of unconscious preference and irrelevant prejudice. Moreover, judicial vigilance to enforce the rule of law in the administrative process is particularly crucial where, as here, the area under consideration is in a constant state of flux. Greater Boston Television Corp.
We do not challenge the Commission's well established right to modify or even overrule an established precedent or approach, for an administrative agency concerned with furtherance of the public interest is not bound to rigid adherence to its prior rulings.
The Hays ruling arose in the context of President Johnson's 1968 State of the Union address.
The Commission, however, sustained CBS' refusal to provide time to Democratic congressional leaders to reply to the 1968 Republican broadcast. In so doing, the Commission relied upon traditional fairness doctrine principles, stating that its role was not to substitute its own judgment for that of the broadcaster, but rather to determine whether the licensee could be said to have acted in good faith in discharging its obligation to provide a balanced presentation of opposing viewpoints. The Commission concluded that CBS had acted within the wide discretion afforded it under the fairness doctrine, and therefore held that the Republican broadcast did not give rise to any reply-to-reply rights in favor of Democratic spokesmen.
Although Hays' relevance to the instant controversy is readily apparent, the Commission failed even to mention it in its initial order of August 18. In an effort to rectify this situation and to compel the Commission to face up to Hays, the CBS petition for reconsideration dealt at length with the Hays question, asserting vigorously that Hays was a controlling precedent which must be squarely confronted by the Commission.
Faced with two facially conflicting decisions, the Commission was duty bound to justify their coexistence. The Commission's utter failure to come to grips with this problem constitutes an inexcusable departure from the essential requirement of reasoned decision making. The rule of law is intended to eliminate the appearance as well as the reality of arbitrariness, and if the public's faith in its administrative agencies is to be maintained, it is imperative that these agencies act in a wholly rational, logical fashion, completely free from even the appearance of bias, prejudice and improper influence. This is particularly true where, as here, the agency is functioning in the midst of a fierce political battle, where the stakes are high and the outcome can affect in a very real sense the political future of our nation.
The Commission's handling of this case does not mark its finest hour. Put to the test under pressure it waffled. Unable to articulate reasons for overruling or distinguishing Hays, the Commission effectively ignored its own obvious precedent. Under the circumstances, its arbitrary action may not stand.
Our reversal of the decision below, however, is not premised solely upon the Commission's mistreatment of Hays, for we find serious fault with other aspects of the opinion as well. In an apparent effort to avoid a direct confrontation with its earlier ruling in Hays, the Commission adopted a wholly unreasonable view of the factual setting of this controversy. By selecting rigid and arbitrary blinders, the Commission failed to see beyond Mr. Nixon's five speeches on Vietnam in evaluating the "responsiveness" of the O'Brien broadcast. The result, of course, was an arbitrary and therefore impermissible application of the Commission's own "responsiveness" doctrine.
Congress has delegated to the Commission the responsibility to ensure that broadcast licensees "operate in the public interest and * * * afford reasonable opportunity for the discussion of conflicting views on issues of public
Cognizant of the potential hazards of unbridled administrative discretion, Congress has wisely devised a scheme whereby "agencies and courts together constitute a `partnership' in furtherance of the public interest."
In granting RNC a right to reply to the "Loyal Opposition" telecast, the Commission shunned all reliance on the traditional balancing principles of the fairness doctrine. Generally, the fairness doctrine requires "that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage." Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 369, 89 S.Ct. 1794, 1796, 23 L. Ed.2d 371 (1969). See Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949); Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance [Fairness Primer], 29 Fed.Reg. 10415 (1964). The licensee may exercise wide latitude "in determining what subjects should be considered, the particular format of the programs devoted to each subject, the different shades of opinion
This carte blanche licensee discretion has, however, been circumscribed in certain areas where it has been felt that an "equal opportunities" approach might better serve the end of fairness. Thus in Section 315 of the Communications Act,
Section 315, however, applies only "to campaign appearances by candidates, and not by family, friends, campaign managers, or other supporters." Red Lion Broadcasting Co. v. F.C.C., supra, 395 U.S. at 382, 89 S.Ct. at 1803. Thus to ensure that the spirit of the statutory requirement is not frustrated by discrimination in the sale of air time to the supporters of candidates, the Commission, in its recent Zapple ruling,
Arguing that "`electioneering' is a continuing process,"
The July 7 "Loyal Opposition" broadcast was structured around presentation of excerpts of previously aired presidential statements on various issues, followed by critical commentary or rebuttal by Mr. O'Brien as to each presidential statement.
As a result, the Commission held that, since Mr. Nixon's televised speeches "had by far concentrated on the Indochina war issue," the DNC broadcast should "first and foremost" have been geared to a discussion of that issue.
We fail to see the logic underlying the Commission's decision to limit its consideration solely to presidential speeches televised between November 3, 1969 and June 3, 1970. Indeed, the only discernible purpose served by such a decision is the creation of an illusion that Mr. Nixon had not previously addressed himself to the other six issues discussed in the O'Brien broadcast. Thus the Commission never even attempted to justify its choice of June 3, 1970 as the cutoff date. The O'Brien broadcast was aired on July 7, 1970, and CBS offered the time for the broadcast on June 22. This being so, we see no sense whatever in the Commission's refusal to consider a 22-minute appearance by Mr. Nixon on June 17, 1970,
Similarly, the Commission offered no explanation for its choice of November 3, 1969 as the starting date for its analysis. The July 7 presentation was, after all, the first "Loyal Opposition" type program to be carried by CBS during the Nixon administration other than the traditional response by Democratic congressional leaders to Mr. Nixon's 1970 State of the Union address.
Moreover, the Commission's analysis of the "responsiveness" issue was limited solely to an evaluation of presidential speeches. The opinions below made no attempt to explain why other types of presidential broadcasts — such as televised press conferences — should be ignored. In a footnote to its brief,
Thus we see no reason why press conferences should not also be taken into account in the "political party" situation. Here, Mr. Nixon's press conferences broadcast over CBS both before
Finally, although the Commission noted in a somewhat cursory fashion that appearances by Republican Party leaders "on news-type programs [do] not satisfy the fairness requirement in the `political party' situation,"
While we do not here rule on the propriety of the Commission's new "responsiveness" doctrine itself, we do note that in many instances its application, by creating a right to reply under Zapple even though no fairness doctrine imbalance actually exists, may have extremely harsh consequences, not only for the litigants themselves, but for society generally. It can hardly be doubted that the power of the media in shaping public opinion plays a paramount role in our present political process. Yet any misapplication of the Commission's new doctrine would seriously distort this power, providing the
To avoid these consequences, it is imperative that the Commission exercise extreme caution in applying its new rule. A right to reply, in this context, should be granted only after an exhaustive examination of the relevant facts. The Commission, however, in constructing its new rule in an apparent effort to circumvent its earlier ruling in Hays, dealt with with these facts in a notably shoddy fashion, arbitrarily ignoring many critical aspects of the factual setting in which this controversy arose. The Commission's determination of "non-responsiveness" cannot, therefore, be sustained.
Finally, in a gallant, yet misguided, effort to "save" the Commission's ruling, counsel for the Commission at oral argument abruptly changed gears, urging, contrary to the primary contentions in his brief, that we uphold the ruling on a new and highly strained interpretation of the opinions below.
We are cited to several passages from the Commission's opinions as supportive of this new interpretation. Typical of these is the Commission's statement that the July 7 broadcast "was `party-oriented' rather than `issue-oriented,' because of CBS' abstention in this critical area of issues to be covered."
We therefore cannot accept counsel's new and thoroughly distorted interpretation of the opinions below. This being so, we are powerless to affirm the Commission's ruling on this
Moreover, even if we were to accept as valid counsel's novel construction of the opinions below, the decision still could not be affirmed on that basis, for the "specification of issues" rule would itself fail the primary test of rationality.
Whether the issue is viewed as one of fairness on the substantive issues discussed or equality of opportunity as between political parties, there is no discernible relationship between the existence of instructions to a party spokesman as to the specific issues he should discuss and the fairness of the coverage achieved. A partisan broadcast is not made more "party-oriented" simply because the issues covered are selected by the spokesman rather than by the network. The question of fairness cannot so readily be divorced from the actual content of the broadcast.
Finally, it is highly questionable whether the mandate to broadcasters inherent in this "specification of issues" rationale to dictate, censor or restrict partisan political spokesmen in their televised presentations accords with the commands of the First Amendment. The public must be equipped to make hard choices between competing political philosophies. This end is best served when there is robust debate among the people most directly involved — the spokesmen themselves — not where the operator of a federally licensed facility must circumscribe that debate as a condition precedent to airing it at all. See Red Lion Broadcasting Co. v. F.C.C., supra. Moreover, since presidential addresses are governed solely by the fairness doctrine, and not by the "specification of issues" rationale, the Commission's extension of Zapple is essentially a one-way street. This is particularly dangerous where, as here, application of the "specification of issues" doctrine would require reply time for the party in power even though there exists neither a fairness doctrine imbalance nor a lack of responsiveness as to the particular issues discussed in the initial broadcast. Such a result is certainly contra-fairness, and raises serious questions concerning the requirement of governmental neutrality in the area of the First Amendment. Cf. Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828 (1953); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267, 280 (1951). For all these reasons, then, we must reject counsel's brave last-ditch effort to salvage the Commission's ruling.
The sudden promulgation of the "specification of issues" justification for the ruling below is just one more step in the Commission's seemingly endless attempt throughout these proceedings "to vindicate its own idiosyncratic conception of the public interest [and] of the requirements of free speech." Red Lion Broadcasting Co. v. F.C.C., supra, 395 U.S. at 395, 89 S.Ct. at 1809. Yet the need for an informed public opinion — the great driving force underlying any working democracy — is simply too great to be subjected to the vagaries of irrational and arbitrary decision making. We conclude, therefore, that the ruling below, marked
TAMM, Circuit Judge (concurring):
The administrative process requires that government agencies and commissions issue reasons for their actions. Here the Commission has outdone itself by giving four reasons for its action — albeit different reasons at each step of the proceedings. In its initial order the Commission ruled that Columbia Broadcasting System was bound to grant time to the Republican National Committee because Chairman O'Brien referred only briefly to the war in his statement and because "The Loyal Opposition" was party-oriented rather than issue-oriented, thereby bringing this case within the Commission's Zapple
(A. 311, emphasis supplied, footnotes omitted.)
In its brief the Commission chose to change its position yet a third time. It claimed that special circumstances had rendered the general doctrine inadequate to assure reasonable opportunity for the public to receive conflicting views. These circumstances, viz., a speech by a candidate, political editorializing, or a speech by a candidate's supporters, limit the broadcaster's discretion. The FCC was not concerned with CBS' overall fairness. It claimed that O'Brien's presentation was not responsive and that CBS had failed to assure that it would be. Even though the FCC was cognizant that the President's numerous speeches created an imbalance on the war issue requiring presentation of the other side of the coin, CBS' fatal error, it said, was in granting time to D.N.C. for any purpose without supervision. Therefore, the only imbalance, the Commission contended, was one created by CBS in failing to give R.N.C. time to respond to D.N.C. Not satisfied with even this position as espoused in the briefs, the Commission made an eleventh-hour change in its game plan at oral argument. As Judge Wright points out, the Commission urged that we entirely disregard the responsiveness issue raised in the briefs and affirm the FCC on one ground and one ground only — failure of CBS to instruct D.N.C. on precisely which issues to raise during the broadcast.
I can neither accept nor sympathize with the manner in which the Commission has handled this litigation. They have created a debacle in seeking a sound basis for their decision. They have been unable to bring the case at bar within Zapple and have been similarly unable to distinguish it from Hays. Their opinions at the hearing level as well as the position urged in the briefs and at oral argument show a capricious, arbitrary and inconsistent approach to this case. The Commission cannot constantly change its position quocumque modo velit. I feel constrained to sound a trumpet in warning against such attempts by administrative agencies to play
In the other complaints, the Committee for Fair Broadcasting, Fourteen United States Senators, and Business Executives' Move for Vietnam Peace all urged that network coverage of the presidential addresses on Vietnam (referring specifically to those speeches occurring between November 3, 1969 and June 3, 1970) required that they be given comparable time and format to present their opposing views. The Commission refused to order the networks to grant time to these complainants or to apply an equal opportunities requirement to presidential or other official appearances. The Commission did hold, however, that format should be considered in determining whether a licensee had achieved overall fairness. Accordingly, in light of the imbalance created by the large number of presidential addresses on Vietnam, the Commission required the networks to make additional uninterrupted time available to spokesmen selected by the networks for discussion of the Indochina war issue. Thus consideration of the RNC complaint in this context may well have led the Commission to mischaracterize that complaint as one dealing particularly with the President's recent speeches on Vietnam.
The 6th speech considered by the Commission was the President's January 26, 1970 appearance explaining his veto of a $20 billion appropriations bill for the Departments of Labor and Health, Education and Welfare. 6 WCPD 76. However, no weight was given to this address in the Commission's determination of "unresponsiveness." In addition, a 7th speech televised during this period, the President's January 22, 1970 State of the Union message, was not considered by the Commission in evaluating the responsiveness of the O'Brien broadcast. This was probably because Democratic congressional leaders had already been given an opportunity, on February 9, 1970, to reply to this particular address.