Page images
[ocr errors]

men for candidates rather than the candidates themselves, we have in recent years supported legislation which would extend the coverage of section 315 to at least cover authorized spokesmen for legally qualified candidates. Legislation, introduced by Mr. Horan of Washington, incorporating this proposal, was adopted by the House of Representatives last year as an amendment to S. 658, a bill making a series of amendments to the Communications Act. It was stricken out in conference, however, because the conferees believed further study was required. We believe that such study should be given attention by the new Congress. Copies of the Commission's comments on recent legislative proposals seeking to accomplish this objective are being made available for your consideration.

I should also like to say a word in amplification of the term “legally qualified” candidate. For the provisions of law requiring that equal opportunities be afforded to candidates for public office are expressly applicable to all legally qualified candidates—including candidates of minority parties or independent candidates as well as of the two major parties.

The determination of who is a legally qualified candidate for any particular public office will necessarily depend upon the provisions of applicable State law, and our rule relating to this matter accordingly attempts to gear the definition of "legally qualified” to the applicable law. And it is to the State laws which permit candidates to appear on the ballot or be voted for, rather than to the Communications Act or the Commission, that people should look if they believe that as a result of such laws persons advocating subversive programs are securing access to the air as candidates for public office. If they are legally qualified candidates, it is State law—not the Commission or Congress—that makes them so.

I think it is clear that Congress did not intend for the Commission to pick and choose among candidates who, under the laws of the States in which they are running, are qualified to be voted for and to serve in a particular office.

In regard to this matter, I would like to point out that the Commission called to the attention of Congress, previous to the commencement of the recent campaign, the fact that the Communist Party is a legal party in many States, and therefore its candidates might be entitled to broadcast time on an equal basis with the candidates of other parties in those States. In a letter to the chairman of the Senate Committee on Interstate Commerce, commenting on a proposed amendment to section 315 of the Communications Act, dated July 30, 1951, we stated that:

The Commission feels that one further problem should be brought to the committee's attention. At the present time the Communist Party is a recognized political party in most of the States throughout the country. I'nder section 315 of the Communications Act, as heretofore interpreted, Communist Party candidates for any office get equal time on equal terms with all other candidates for that office if any time is afforded for any of the candidates. On June 4, 1951, the Supreme Court of the United States affirmed the conviction of 11 leaders of the ('ommunist Party of the United States under the Smith Act. The committee may want to give immediate attention to determining the status of Communist candidates by statutes rather than relying on various possible interpretations in the light of this decision. A similar statement was made in a letter to the House Committee on Interstate and Foreign Commerce dated August 8, 1951.

There are, of course, close questions as to the interpretation of the term “legally qualified” which arise from time to time and upon which the Commission must pass. In line with the decision of the Supreme Court in United States v. Classic (313 U. S. 299), that primary elections are part of our basic electoral process, the Commission has provided in its rules that section 315 is applicable to candidates in primary elections as well as to candidates in the subsequent general election. Occasionally, we have found, however, that the State laws with respect to primary elections are not very explicit with respect to such questions as to when candidates for nomination can be said to have legally qualified.

One of the more difficult problems with which we are confronted is with the question of who is a "legally qualified” candidate for nomination for President and Vice President of the United States prior to the nominating conventions of the several parties. For here various State laws are of only limited help. The conventions select their own candidates, choosing in some cases those who have previously not announced themselves as candidates or have only campaigned in a few selected States.

In approaching this problem, the Commission has taken the position that Congress clearly could not have contemplated a restrictive approach to the question of who is a “legally qualified” candidate where the office in question is the most important in the world and the public interest in bringing the views of potential candidates to the attention of the American people is so obviously great. We have, accordingly, held that any person who is an announced candidate for nomination by a political party and who can show that he has made bona fide efforts to secure the nomination, such as entering his name in the primary races in one or more States, is entitled to opportunities to use radio and television equal to those provided for all other candidates for the nomination by that particular party.

In this respect it might be of interest to the committee to know that the Commission has held that for the purposes of section 315 of the Communications Act, primary elections of different parties for the same office are different elections. Accordingly, a candidate for the Republican nomination for a particular office is entitled to opportunities equal to those afforded to all other Republican candidates for that office.

I should like to say a word about the provisions of the section which deny a licensee any power of censorship of material broadcast by a legally qualified candidate. This is an absolute prohibition in the law and the Commission has interpreted it as such. It is our understanding that Congress did not wish to permit station. licensees to be able to dictate to candidates in any way how candidates should make use of the broadcast time afforded to them under the section. In keeping with this apparent congressional mandate, we have held that any use of broadcast facilities by a legally qualified candidate which could be of possible aid to his candidacy is a use coming within the purview of the section, even though the candidate may not directly advocate his election during the course of his broadcast. And we have held that the absolute prohibition against censorship includes a prohibition against stations requiring candidates to delete material the licensees believe is or might be libelous under State laws. We have stated our belief that, because the controlling Federal law prohibits stations from censoring possibly libelous material, the broadcast licensees are not subject to being sued under State libel and slander laws—though, of course, the candidate uttering any libel or slander remains personally liable. We have recognized, however, that this immunity of broadcasters from suit has not been universally recognized. We have, therefore, supported in recent years an amendment to section 315 which would expressly provide that broadcasters cannot be held liable for statements made by legally qualified candidates, except in those exceptional cases where the licensee actively participated in the utterance of the libel. As in the case of the proposal to extend the section to include spokesmen for candidates, such a proposal was adopted by the House of Representatives last year as part of an over-all amendment to the act, but dropped by the conferees for further study. We believe early attention to this question is warranted.

Mr. KEATING. May I interrupt there?
Mr. WALKER. Yes, sir.

Mr. KEATING. I emphatically agree with you that Congress should do something about that problem. What did you have in mind as an exception in the case where a licensee actively participated in the utterance of libel! That would be a case, if it occurred, where the licensee should, of course, be liable.

I was curious to know how the licensee could actively participate in the utterance of a libel by a candidate. What factual situation did you have in mind?

Mr. WALKER. Well, I did not have a particular factual situation in mind, but if the licensee himself were to collaborate with the candidate in the program, or participate with him in his views, then something ought to be done.

Mr. KEATING. I see. You had no particular situation in mind?
Mr. KEATING. Thank you.

Mr.- WALKER. It should be made clear that there does exist an important area of governmental concern with those political programs which fall outside of the provisions of section 315. For the Communications Act clearly provides that station licenses and renewals thereof may only be granted where the Commission is able to find that the public interest would be served thereby. And the Commission has consistently lield that one of the most important factors in any station's operation in the public interest is its willingness to afford opportunity for the expression of opposing view points on controversial issues of interest to the listening public. In our view, as expressed in a report on Editorializing by Broadcast Licensees, copies of which I shall make available for the committee, the public interest of the community served by the station rather than the personal interests of the licensee chosen to provide a public service is paramount, and while the licensee is not precluded from stating his own opinion, he cannot do so to the exclusion of other points of view.

Since elections are clearly both highly controversial and of great community interest, it is clear that stations have an obligation to be fair and to present opposing viewpoints in their programing relating to election campaigns, even with respect to the programs which do not fall within the provisions of section 315 and with respect to which absolute mathematical equality of opportunity is not required. And in reviewing the over-all record of stations in licensing proceedingsusually in connection with their applications for renewal of licensethe Commission has an opportunity for determining whether these obligations of stations to present both sides of public issues, has been met.

This fact has meant that even with respect to political broadcasts not falling within the protections of section 315, broadcast stations have been conscious of their duty to present a relatively balanced presentation of opposing viewpoints. This, of course, is not the same thing as providing candidates with an absolute right to equal treatment, and we do not mean to suggest that the general duty of stations to be fair obviates the necessity for requiring absolute equality of treatment of the candidates themselves. But it is important to point out to the committee that we are not confronted with a situation in which stations are free to permit or sponsor partisan one-sided presentations of election issues to the exclusion of opposing points of view, through the device of confining such programing to programs not falling within the rather restricted ambit of section 315 of the Communications Act.

I fully recognize that in this presentation I have been able only to touch the high lights of the role that the Commission plays under the Communications Act with respect to political broadcasts over radio and television. But I have attempted at least to mention the basic problems with which we are faced in this field so that the committee may, in the course of its considerations, have before it, in proper perspective, the law with respect to radio and television broadcasts of a political nature and the basic administrative construction of that law. If there is any further or more detailed information concerning any of these matters which the committee wishes to secure during the course of its present study, the Commission and its staff will be only too pleased to cooperate with you.

The CHAIRMAN. Mr. Keating, do you have any questions?
Mr. KEATING. No, I have no questions.
The CHAIRMAN. Mr. Karsten.
Mr. KARSTEN. No questions.
The CHAIRMAN. Mr. Long.

Mr. Long. No, sir. The points we were interested in having the Federal Communications Commission present to the committee have been vividly and adequately presented to the committee by this memorandum.

The CHAIRMAN. I think you have made a very fine statement, Mr. Chairman. I appreciate your coming up very much.

Mr. WALKER. Thank you. Thank you very much. May I inquire if the documents we mentioned are needed by the committee?

The CHAIRMAN. Yes; we would like very much to have them.

Mr. COTTONE. We will leave a set with your counsel, and you may use your own discretion as to what you may want to use in the record.

The CHAIRMAN. Thank you very much.
Mr. COTTONE. Thank you, sir.

The CHAIRMAN. Sheriff Whitten, of Allegheny County, is the next witness. Sheriff, I wonder if you would be good enough to state your name, occupation, and so forth.



Mr. WHITTEN. Thomas E. Whitten. I am a member of the bar of the Supreme Courts of Pennsylvania and of the United States. I am presently the sheriff of Allegheny County under an appointment by the Governor of the Commonwealth, and I am likewise chairman of the Republican executive committee in that county.

The CHAIRMAN. Thank you, sir. Do you have a written statement ?

Mr. WHITTEN. I have not. I have a few notes that I should like to read to the committee and then discuss afterward.

The CHAIRMAN. Go right ahead, sir.

Mr. WHITTEN. I was pleased to receive the opportunity to appear before your honorable body. Actually, the communication had been addressed to my predecessor, not knowing there had been a change in the chairmanship:

I came to the chairmanship of the county in May of this year and conducted the campaign which closed on November 4.

My feeling at the end of the campaign was that the use of money had little, if any, effect on the final result. Of course, I would not say you would have had a good campaign if you had not had any money, but the overshadowing of the rest of the issues by the character of the candidates themselves, and the issues involved in the campaign, made it such that the use of money had no determination, insofar as the results that were obtained at that time.

I can bear that out by a comparison of the operations in our county in the period of the last 20 years. Our figures did not vary hardly any from 1948 to 1952. Actually the amount spent is about 15 percent higher, but in the increase, which amounted to about $48,000, there was $32,000 represented by the use of television facilities which, of course, were not available prior to this campaign. The increased use of radio was to the tune of about $6,000. That represents pretty nearly $40,000 of the increase.

If you give consideration to the difference in the purchasing power of the dollar in 1948 as compared to 1952, I think you will find in the comparison that we spent no more and probably less money in 1952 than we did in 1948.

Now for a comparison of the results. The Republican candidate in 1948 was defeated by slightly under 80,000 in our county. This year he was defeated by slightly over 11,000.

At the congressional level there is a comparison of the four candidates for the Republican Congress, as compared with the four candidates for the Democrats. The Republicans carried the county by about 13,000 votes. Mr. Fulton by 47,000; Mr. Corbett by maybe 43,000; Mr. Denny was defeated by 27,000; and Mr. Benson, the Republican candidate opposing Mrs. Buchanan, was defeated by about 50,000. So with 90,000 against 77,000, we actually carried the county on no more and probably less money than had been spent 4 years before, so that the question of expenditures in our county, I do not believe, made any difference at all.

The use of television has produced, of course, terrific financial responsibilities, because of the large sums of money which have to be paid.

« PreviousContinue »