orivilege in order for the media to continue providing the public-as they have for almost two centuries-with "the widest possible dissemination of information rom diverse and antagonistic sources" (Associated Press v. United States, 326 U.S. 1, 20). 4. That the absence of a privilege has not rendered the press ineffective in gathering news is evidenced by its inability yet to convince Congress or a number of state legislatures that the reporter's privilege is essential to a free press in a free society.10 Although bills creating such a privilege have been proposed on several occasions, none has ever emerged from committee." There is presently Dending before the Judiciary Committee another bill which provides protection of the newsman's confidential sources and communications. See S. 1311, 92d Cong., 1st Sess. (1970). In addition, the Committee on Rules of Evidence is in the process of formulating evidentiary rules for the federal courts." It is in such forum, or in Congress, that the value judgments relating to recognition of a newsman's privilege should be debated and resolved. The Attorney General and a number of states have recognized that this is a Helicate area, and that it is desirable to interfere as little as possible with the news-gathering activities of the media (see nn. 2, 4, supra). This, however, is different from according to the news media a privilege under the Constitution to De free of the duty imposed on all citizens to give testimony relating to a crime. The past two hundred years illustrate convincingly that such a privilege is not necessary to a meaningful exercise of the protected freedoms of the press to write,13 to publish" and to circulate the news. As Justice Holmes said, speaking of a related type of constitutional problem, in Otis Co. v. Ludlow Manufacturing Co., 201 U.S. 140, 154: We are bound to be very cautious in coming to the conclusion that the Fourteenth Amendment has upset what thus has been established and accepted for a long time. Whether or not such a privilege is desirable is, as stated at the outset, a different question altogether. The desirability of according a privilege to news reporters and the scope of such a privilege are matters, we submit, that should be eft to the legislative process. CONCLUSION For the reasons stated, the judgments of the Court of Appeals for the Commonwealth of Kentucky in No. 70-85 and the judgment of the Supreme Judicial Court for the Commonwealth of Massachusetts in No. 70-94 should be affirmed. Respectfully submitted. SEPTEMBER 1971. ERWIN N. GRISWOLD, 10 Indeed, on several occasions Congress has, even in the face of an apparent claim of privilege, cited newsmen for contempt for refusing to answer questions before a congressional investigating committee. Thus, in 1857, the House of Representatives appointed a Committee to investigate published charges to the effect that members of the House were accepting bribes. A newspaper correspondent, J. W. Simonton, appeared before the committee and refused to disclose names of members whom he claimed had approached him, inquiring whether, through him, they could procure money for their votes on certain bills. His refusal was based on the ground that a disclosure would violate a confidence. See Cong. Globe, 34th Cong., 3d Sess. 274-275, 277, 404. 411-413 (1857). For a complete report of the proceedings in this matter, see S. Misc. Doc. No. 278, 53d Cong., 2d Sess. 85190 (1894). For a similar case in the Senate, see id. at 311-504 (1894). See, e.g., S. 1851, 88th Cong., 1st Sess. (1963); H.R. 8519, 88th Cong., 1st Sess. (1963); H.R. 7787, 88th Cong., 1st Sess. (1963). See New York Law Revision Commission, Report, supra, at 88-95 (1949), for a listing of bills introduced in the 71st, 72d, 74th, 75th, 76th and 78th Sessions of Congress. 12 As of now, the Proposed Rules of Evidence for the United States District Courts and Magistrates (46 F.R.D. 161) not only do not provide a newsman's privilege but sharply limit the number of personal-relationship privileges-even excluding a general physicianpatient privilege. 46 F.R.D. 161, 249-269 (Rules 5-03 to 5-06). 13 See, e.g., New York Times v. Sullivan, 376 U.S. 254; Time, Inc. v. Hill, 385 U.S. 374; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81. See, e.g., New York Times Company v. United States and United States v. The Washington Post Company, Nos. 1873 and 1885, October Term, 1970 decided June 30, 1971. 15 See, e.g., Winters v. United States, 333 U.S. 507, 510; Lovell v. Griffin, 303 U.S. 444; Grosjean v. American Press Co., 297 U.S. 233; Near v. Minnesota, 283 U.S. 697. SUPREME COURT OF THE UNITED STATES (No. 71-863-October Term, 1971) COLUMBIA BROADCASTING SYSTEM, INC., PETITIONER V. DEMOCRATIC NATIONAL (No. 71-864) FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, PETITION- (No. 71-865) POST-NEWSWEEK STATIONS, CAPITAL AREA, INC., PETITIONER v. BUSINESS (No. 71-866) AMERICAN BROADCASTING COMPANIES, INC., PETITIONER v. DEMOCRATIC NATIONAL On Writs of Certiorari to the United States Court of Appeals for the Brief for Petitioner American Broadcasting Companies, Inc. Attorneys for Petitioner: American Broadcasting Companies, Inc. Of Counsel: MCKENNA, WILKINSON & KITTNER, 1150 Seventeenth Street, N.W., Wash- INDEX Opinions below. Jurisdiction. Constitutional provisions and statutes involved. Question presented. Statement of the case. A. Agency Proceedings. B. The Court of Appeals Decision. Summary of argument. Argument. Introduction. I. The First Amendment does not compel the designation of broadcast A. The Relevant First Amendment Objective is to Guarantee II. An individualized "right to purchase spot advertisement time on A. A Comprehensive Legislative and Administrative Frame- lic Interest Through the Presentation of Full and Fair 1. The Public Trustee Concept Underlying the Statu- III. The decision of the Court of Appeals will substantially impede Conclusion. TABLE OF AUTHORITIES COURT CASES Amalgamated Food Employees Local Union 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968). Associated Press v. United States, 326 U.S. 1 (1945). Avins v. Rutgers, 385 F.2d 151 (3rd Cir. 1967), cert. denied, 390 U.S. 920 (1968). Banzhaf v. FCC, 405 F2d 1082 (D.C. Cir. 1968), cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842 (1969). Business Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642 (1971). Democratic National Committee v. FCC, D.C. Cir., No. 71-1637, decided February 2, 1972, slip op. FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940). Federal Communications Commission v. American Broadcasting Co., 110 F. Supp. 374 (S.D. N.Y. 1953), aff'd, 347 U.S. 284 (1954). Green v. FCC, 447 F.2d 323 (D.C. Cir. 1971). Greenbelt Cooperative Publishing Assoc. v. Bresler, 398 U.S. 6 (1970). Henry v. FCC, 302 F.2d 191 (D.C. Cir. 1962). Hillside Community Church, Inc. v. City of Tacoma, 76 Wash. 2d 63, 455 P.2d 350 (1969). Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). Kissinger v. New York City Transit Authority, 274 F. Supp. 438 (S.D.N.Y. 1967). Larus & Brother Co. v. FCC, 447 F.2d 876 (4th Cir. 1971). Lee v. Bd. of Regents, 306 F. Supp. 1097 (W.D. Wis. 1969), aff'd, 441 F.2d 1257 (7th Cir. 1971). Marsh v. Alabama, 326 U.S. 501 (1946). Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (1st Cir. 1950). McIntire v. William Penn Broadcasting Co., 151 F.2d 597 (3rd Cir. 1945), cert. denied, 327 U.S. 779 (1946). Mills v. Alabama, 384 U.S. 214 (1966). National Broadcasting Co. v. United States, 319 U.S. 190 (1943). Office of Communication of the United Church of Christ v. FCC, 359 F.2d 944 (D.C. Cir. 1966). Public Utilities Commission v. Pollack, 343 U.S. 451 (1952). Pulitzer Pub. Co. v. FCC, 94 F.2d 249 (D.C. Cir. 1937). Red Lion Broadcasting Company v. FCC, 395 U.S. 367 (1969). Regents of New Mexico v. Albuquerque Broadcasting Co., 158 F.2d 900 (1947). Rosenbloom v. Metromedia, Inc., 415 F.2d 892 (3rd Cir. 1969), aff'd, 403 U.S. 29 (1971). Terminiello v. Chicago, 337 U.S. 1 (1949). Time Inc. v. Hill, 385 U.S. 374 (1967). United States v. Guest, 383 U.S. 745 (1966). United States v. Paramount Pictures, 334 U.S. 131 (1948). Whitney v. California, 274 U.S. 357 (1927). Wirta v. Alameda-Contra Costa Transit Dist., 68 Cal. 2d 51, 434 P.2d 982, 64 Cal. Reptr. 430 (1967). Zucker v. Panitz, 299 F. Supp. 102 (S.D.N.Y. 1969). 76-387-7280 FEDERAL COMMUNICATIONS COMMISSION PROCEEDINGS Adoption of Standards Designed to Eliminate Deceptive Advertising from Tekvision, 23 Pike and Fischer Radio Regulation 1550 (1971). Applicability of the Fairness Doctrine to Broadcast Licensees, 29 Fed. Reg. 10415 (1964). Business Executives' Move for Vietnam Peace, 25 F.C.C. 2d 242 (1970). Center for Law and Social Policy, 23 Pike and Fischer Radio Regulation 187 (1971). Cullman Broadcasting Co. 40 F.C.C. 576 (1963). Democratic National Committee, 25 F.C.C. 216 (1970). En Banc Program Policy Statement, 20 Pike and Fischer Radio Regulation 1901 (1960). F..C. News Release No. 10624, April 26, 1972. F.C.C. Public Notice No. 85462, released June 7, 1972. Great Lakes Broadcasting Co., 3 F.R.C. Annual Report 32. In re Fairness Complaint of Sidney Willens and Russell Millin, 33 F.C.C. 2d (1972). In re Mrs. R. J. Paul, 26 F.C.C. 2d 591 (1969). In re Notice of Inquiry and Notice of Proposed Rulemaking in Docket No. 18859, 23 F.C.C. 2d 27 (1970). In re Notice of Inquiry in Docket No. 19260, 30 F.C.C. 2d 26 (1971). In re "The Selling of the Pentagon," 30 F.C.C. 2d 150 (1971). Letter to ABC, CBS and NBC, 16 F.C.C. 2d 650 (1969). Letter to Nicholas Zapple, 23 F.C.C. 2d 707 (1970). Minshall Broadcasting Co., 11 F.C.C. 2d 796 (1968). New York City Health and Hospitals Corp., 32 F.C.C. 2d 299 (1971). Primer on Ascertainment of Problems by Broadcast Licensees, 27 F.C.C. 2d 650 (1971). Report on Editorializing by Broadcast Licenses, 13 F.C.C. 1246 (1949). CONSTITUTION AND STATUTES UNITED STATES CONSTITUTION First Amendment (passim). Communications Act of 1934, as amended (47 U.S.C.). Sections: 153 (h) 301. 307(a). 307 (d). 308 (a). 309 (a). 310(b). 312(a). 315(a). 326. MISCELLANEOUS Campaign Communications Reform Act, Pub. L. No. 92-225 (February 7, 1972). CONF. REP. No. 92-580, 92d Cong., 1st Sess. (1971). 67 CONG. REC. 12356 (1926). 67 CONG. REC. 12501-503 (1926). 68 CONG. REC. 2567 (1927). Alfred I. DuPont-COLUMBIA UNIVERSITY SURVEY OF BROADCAST JOURNALISM 1970-1971. H.R. 1986, 73rd Cong., 2d Sess. (1934). H.R. 3595, 80th Cong., 1st Sess. (1947). H.R. 6949, 81st Cong., 2d Sess. (1950). H.R. 11851, 87th Cong., 2d Sess. (1962). H.R. REP. No. 802, 86th Cong., 1st Sess. (1959). Hearings on H.R. 8301 Before the House Committee on Interstate and Foreign Commerce, 73rd Cong., 2d Sess. (1934). Meiklejohn, POLITICAL FREEDOM THE CONSTITUTIONAL POWERS OF THE PEOPLE (1960). S.J. RES. 209, 91st Cong., 2d Sess. (1970). OPINIONS BELOW The opinion of the Court of Appeals (App. 446) is reported at 450 F.2d 642 (1971). The Memorandum Opinion and Order of the Federal Communications Commission in Democratic National Committee (App. 247) is reported at 25 F.C.C. 2d 216 (1970). The Commission's letter decision in Business Executives' Move for Vietnam Peace (App. 357) is reported at 25 F.C.C. 2d 242 (1970). JURISDICTION The judgment of the Court of Appeals was entered on August 3, 1971 (App. 492). Petitions for rehearing were denied by an order of the Court of Appeals (App. 494) entered on October 4, 1971. Petitions for certiorari were filed on January 3, 1972, granted by this Court on February 28, 1972, and a contemporaneous order of consolidation thereby entered. The jurisdiction of this Court is based on 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED This case involves the First Amendment to the United States Constitution and Sections 3 (h), 315(a) and 326 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 153 (h), 315(a) and 326. The First Amendment to the Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Section 3(h) of the Communications Act of 1934, 48 Stat. 1065, et seq., as amended, 47 U.S.C. 153 (h), provides: "Common carrier' or 'carrier' means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Act; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier." Section 315 (a) of the Communications Act of 1934, 48 Stat. 1088, as amended, 47 U.S.C. 315(a), provides: "If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, that such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any (1) bona fide newscast, (2) bona fide news interview, (3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or (4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." Section 326 of the Communications Act of 1934, 48 Stat. 1091, as amended, 47 U.S.C. 326, provides: "Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be |