The Supreme Court reversed the conviction holding that the committee had violated the First Amendment rights of the company, and that it had the same right to sell their books and have their books compete for the minds of men as anyone else did. And I thought that was one of the most wholesome decisions ever handed down by a court. Mr. MCCORMICK. I certainly agree with you. Senator ERVIN. I cite it because of counsel's questions about the subpenas issued. This situation is very much akin to the subpena issue, and it also represents an assault on the First Amendment rights of a conservative organization. We are all familiar with assaults on the First Amendment rights of very radical organizations, such as the underground press, so it behooves all of us, regardless of whether we are conservatives, reactionaries, liberals, or radicals, to unite together to fight for the preservation of the first amendment, because it protects us all. Mr. McCORMICK. I agree. Senator ERVIN. Thank you very much. The subcommittee is adjourned until 10 a.m. tomorrow. (Whereupon, the subcommittee was adjourned.) S. 1311-FREEDOM OF THE PRESS WEDNESDAY, OCTOBER 20, 1971 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senators Ervin (presiding), Hruska, and Thurmond. Also present: Lawrence M. Baskir, chief counsel; Bill Pursley, counsel; and Stanley Ebner, minority counsel. Senator ERVIN. The subcommittee will come to order. The subcommittee concludes its first series of hearings on the state of freedom of the press today. As I have previously announced, we intend to schedule a second series of this important subject in early 1972. This second series of hearings is necessary because there are several critical issues which need further exploration and because there are knowledgeable individuals in this field who have important information and ideas as yet not presented to the subcommittee. Between now and this second series of hearings, the subcommittee will be studying the excellent testimony already presented with a view toward refining the issues for the second set of hearings. Today's three witnesses are all involved in one way or another with the broadcast media. In the course of our hearings we have heard many questions raised as to the validity and scope of government regulation of broadcasting. Some witnesses have asserted that present statutes and administrative regulations and procedures have seriously undermined the impact of the first amendment on broadcasting. Others have called for even greater government control to insure fairness in news coverage or to secure a right to access. Today we shall hear from the chairman and another member of the Federal Communications Commission address themselves to these and other questions concerning the government's regulation of broadcasting. In addition, we shall hear from the North Carolina Broadcasters Association representing hundreds of individuals in one of our States. Counsel will call the first witness. Mr. BASKIR. Mr. Chairman, our first witness this morning is Mr. Dean Burch, Chairman of the Federal Communications Commission. Senator ERVIN. I want to welcome you to the subcommittee and express to you our great appreciation of your willingness to come. and give us the benefit of your observations and experience in the very important field of electronic communications. STATEMENT OF DEAN BURCH, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION; ACCOMPANIED BY RICHARD E. WILEY, GENERAL COUNSEL Mr. BURCH. Thank you very much, Senator. I am delighted to be here. And I commend your committee for the scope of these hearings and the desirability for them at this particular time. I am accompanied this morning by the general counsel of the Commission, Mr. Dick Wiley. Senator ERVIN. We are delighted to have you with us. Mr. BURCH. The Commission appreciates the opportunity to present its views on the important subject of FCC policies relating to broadcast journalism. I think the best way for me to proceed is to describe first the general statutory scheme for regulating broadcasting. Then I will review the way in which the Commission has applied this statutory scheme with respect to broadcast journalism. I shall necessarily paint with a broad brush, but I shall be glad to supply additional details in answer to questions today or by letter if you wish. Broadcast stations are licensed by the government. In contrast, newspapers are not. Government licensing of newspapers has been and continues to be abhorred in this Nation because the power to license carries with it the threat of government control of news, a circumstance well-known to totalitarian nations. While it is undoubtedly old hat to all of you, I think it is essential to repeat here the reason for this distinction between newspapers and broadcasting stationswhy the Government must license broadcast stations. The Supreme Court stated the reason 28 years ago: Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to government regulation. spec Conflicting demands for many uses of radio, both broadcast and nonbroadcast, require that the frequencies which comprise the radio trum must be allocated to various uses or services. Once segments of the spectrum have been allocated for a service--here broadcast service -the frequencies within that segment must be assigned to specific users in a way that prevents destructive interference. Otherwise, interference could effectively preclude the public from hearing any broadcast. Once television broadcast channel 4 has been licensed to one person in Washington, for example, no one else can be licensed to use that channel. The Commission accomplishes this result in the broadcast field by following the licensing scheme embodied in the Communications Act of 1934, as amended. Congress clearly stated the purpose of the act-"[T]o maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority. * * *” The standard Congress established to govern such licensing is the public convenience, interest, and necessity. It is by now beyond dispute that the act's comprehensive scheme for regulating the use of radio in the larger interest of the public is not inconsistent with the First Amendment. This is not because the First Amendment is inapplicable to radio-the protections of the First Amendment certainly do apply to broadcasting. The Supreme Court has so stated on several occasions; Section 326 of the Communications Act so states. Rather Government regulation is permissible because different standards are appropriate for different media of expression in light of their differing natures. Thus, since radio is inherently not available to all, regulation of the use of radio in the public interest does not violate the First Amendment. That is the holding of NBC v. United States in 1943, and it was repeated only 2 years ago in the landmark decision, Red Lion Broadcasting Co. v. FCC. I believe this decision to be so important to the subject of this hearing that I have attached a copy of the unanimous opinion to this statement. Mr. Chairman, you may hear the argument that there are far more broadcast stations than newspapers of daily circulation-that it is much more difficult to start a newspaper than it is a broadcast operation: this is true. But no one will stop you from putting out a newspaper. Only one person can operate on channel 4 here in Washington, and all others will be prevented from doing so. In short, despite the argument as to numbers of stations, the vital consideration is that the radio spectrum remains a precious, scarce resource. In view of the demands pressed upon us by those applying for spectrum space. I can assure you that this is so. And when we revoke or deny a station license, we find eight, 10, sometimes as many as 16 applicants for the frequency. The Supreme Court recognized the limits on spectrum space and rejected this no scarcity argument in Red Lion, which I have cited previously. I might say, Mr. Chairman, that particular argument in Red Lion meets very squarely the position that was presented to you by Walter Cronkite in his testimony before this subcommittee. Chief Justice Burger, in his last opinion as an appeals court judge, said: A broadcaster has much in common with a newspaper publisher, but he is not in the same category in terms of public obligations imposed by law. A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts the franchise it is burdened by an enforceable public obligation. A newspaper can be operated at the whim or caprice of its owner, a broadcast station cannot. What, then, is the public obligation imposed upon broadcast journalism? The first obligation of the broadcaster is to engage in broadcast journalism to devote a reasonable amount of time to informing the public on controversial issues of public importance. A democracy cannot function without an informed electorate. Because of the contribution broadcasting can make to an informed electorate, we have allo |