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FREEDOM OF THE PRESS

WEDNESDAY, FEBRUARY 2, 1972

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY.

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:15 a.m., in room 1318, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin and Hruska.

Also present. Lawrence M. Baskir, chief counsel, and Bill Pursley, counsel; and Stanley Ebner, minority counsel.

Senator ERVIN. The subcommittee will come to order.

Yesterday during the hearings I made certain oral statements. There is always a hazard in making oral statements which is twofold. The person who makes an oral statement may not express himself correctly or he may not be correctly understood by some of his audience.

I refer to certain statements attributed to me, and if I made any remarks justifying those statements, they certainly were inadvertently made. I did not blame the FBI in any way for its investigation of CBS commentator Daniel Schorr. I don't think Mr. Schorr criticized the FBI in any way in respect to that investigation.

Under the laws and the Executive Office, the FBI is an agency of the executive branch of the Federal Government and it is required to make an investigation whenever ordered to do so either by the President as the head of the executive branch of the Government or any person whom it believes is authorized to speak for the President, and likewise when requested by the Department of Justice.

The FBI merely performed its duty in this case. I accept at face value the statement of Mr. J. Edgar Hoover that the FBI was requested by a properly authorized person in the White House to make the investigation of Mr. Schorr with a view to determining his fitness from the standpoint of character and loyalty to fill some Federal office which was not designated to the FBI or to anybody else. I do agree with Mr. Schorr's observations that before any official, who is authorized by the executive department to request the FBI tomake an investigation to determine fitness for the appointment to Federal office, acts, that official should inform the person being investigated of the investigation, of the objective of the investigation, and the office for which he is being considered.

With due respect to everybody concerned, I think there is a certain amount of stupidity demonstrated by investigating a man's fitness for appointment to Federal office without first consulting that

individual and ascertaining whether he would accept the office if it is offered to him, but the FBI was not responsible in any way for that stupidity.

The FBI performs a most important function in our country. In the first place, it is necessary for those having appointive powers in the Federal Government to ascertain the loyalty and fitness of an American being considered for an appointment to a public office. Therefore, the FBI has that duty when requested to do so by a proper official.

Furthermore, the FBI is authorized to make investigations at the request of the Department of Justice. The Department of Justice is justified in making those requests whenever they have information. which seems to indicate to them that some individual or some group has violated the law or is about to violate the law.

Now, if you had a law that said that the FBI or any other law enforcement agency of the government, Federal or State, couldn't investigate a person or group to ascertain whether circumstances reasonably indicated they were about to violate the law or had violated the law, unless that violation was first established, then in effect, you couldn't have any investigations at all. If the the FBI, or any other agency of government that has law enforcement powers, undertakes to investigate a charge that perhaps I have violated the law or am about to violate the law, they may wind up with a finding after an investigation that I hadn't violated the law and wasn't about to violate the law.

So I just wanted to make these remarks to clarify this situation and to defuse any emotions which might have resulted from anything I inadvertently said or inadvertently was suspected of having said.

Do you have any comments?

Senator HRUSKA. No, I haven't, Mr. Chairman, except to say I regret my inability to have been here yesterday. Other official duties of at least equal importance kept me away. Official duties.

Senator ERVIN. Your absence is fully understandable to the chairman of the subcommittee because the chairman of the subcommittee doesn't know of a single member of the Senate that works any harder than the Senator from Nebraska, and I might add that I know very few in the Congress who work any where near as hard. Senator HRUSKA. You are very charitable. I hope that is not inad

vertent.

(Laughter)

And I know it isn't.

(Laughter)

Senator ERVIN. No that was deliberately made.

Counsel will call the first witness.

Mr. BASKIR. Mr Chairman, our first witness this morning is Mr. Clay T. Whitehead, Director of the Office of Telecommunications Policy of the Executive Office of the President.

Senator ERVIN. Mr. Whitehead became the first Director of the Office of Telecommunications Policy in September 1970. A native of Kansas, Mr. Whitehead received his Ph. D. in management, from Massachusetts Institute of Technology, with concentration on policy analysis and economics.

He joined the White House staff in January 1969. As Special Assistant to the President, his responsibilities included the space program, atomic energy, maritime affairs, communications, liaison with regulatory agencies, and several specific economic and organizational matters.

I want to welcome you to the subcommittee and express our deep appreciation for your willingness to come and give us the benefit of your observations on what I consider one of the most important aspects of our national life.

STATEMENT OF CLAY T. WHITEHEAD, DIRECTOR OF THE OFFICE OF TELECOMMUNICATIONS POLICY; ACCOMPANIED BY ANTONIN SCALIA, GENERAL COUNSEL

Mr. WHITEHEAD. Thank you very much, Mr. Chairman. I am very pleased to be here with you today and to have this opportunity to discuss with the subcommittee some of the aspects of the first amendment which I consider to be an important concern of my office to protect.

I would like first of all to introduce to the subcommittee Mr. Antonin Scalia, sitting at my right, general counsel of the Office of Telecommunications Policy.

Senator ERVIN. We are delighted to have him with us also.

Mr. WHITEHEAD. I wish to address my remarks today specifically to the first amendment implications of the two most significant innovations in our mass communications system during the past decade. The first of these is cable television. Coaxial cable and related technologies enable large numbers of electronic signals-television. signals included-to be carried directly into the home by wire rather than being broadcast over the air. There is no particular limitation on the number of signals which can be provided; systems now being constructed typically have the capacity to carry about 20 television channels, and can be readily expanded to 40.

The original use for this technology was "CATV," or community antenna television. As its name implies, that involved no more than the use of cable to carry broadcast signals picked up by a high master antenna into homes in areas where reception was difficult. In recent years, however, use of the technology has progressed far beyond that. Many cable systems now use microwave relay systems to import television signals from far distant cities. Some originate programing of their own, and make unused channels available to private individuals, organizations, schools, and municipal agencies. Looking into the future, cable technology has the potential to bring into the home communications services other than television-for example, accounting and library services, remote medical diagnoses, access to computers, and perhaps even instantaneous facsimile reproduction of news and other printed material. But I wish to focus today upon the immediate consequences of cable, and in particular its impact upon mass communications.

I do not have to belabor the point that the provision of 20 to 40 television channels where once there were only four or five will drastically alter the character of the medium. It converts a medium

of scarcity into a medium of abundance. As this subcommittee is aware from earlier testimony, one of the most severe problems which must be faced by broadcasters today is the allocation of limited broadcasting time-allocation among various types of programing, and allocation among many groups and individuals who demand time for their point of view. Cable, if it becomes widespread, may well change that by making the capacity of television, like that of the print media, indefinitely expandable, subject only to the economics of supply and demand.

Of course the new medium also brings its own problems, several of which are immediately related to first amendment concerns. Economic realities make it very unlikely that any particular community will have more than a single cable system. Unless some structural safeguard or regulatory prohibition is established, we could find a single individual or corporation sitting astride the major means of mass communication in many areas.

The second aspect of this new technology which bears on the first amendment is, to my mind, the more profound and fundamental, because it forces us to question not only where we are going in the future, but also where we have been in the past. That aspect consists of this: The basic premises which we have traditionally used to reconcile broadcasting regulation with the first amendment do not apply to cable.

In earlier sessions of these hearings, this subcommittee has heard. three principal justifications for Government intrusion into the programing of broadcast communications: The first is the fact of Government licensing, justified by the need to prevent interference between broadcast signals. But with cable, there is nothing broadcast over the air, no possibility of interference, and hence no unavoidable need for Federal licensing. The second is "the public's ownership of the airwaves" which the broadcaster uses. But cable does not use the airwaves. The third is the physical limitation upon the number of channels which can be broadcast in any given area-meaning that there is oligopoly control over the electronic mass media, in effect conferred by Federal license. But the number of feasible cable channels far exceeds the anticipated demand for use, and there are various ways of dispersing any monopoly control over what is programed on cable channels short of controlling content.

In other words, cable television is now confronting our society with the embarrassing question: Are the reasons we have given in the past 40-odd years for denying to the broadcast media the same first amendment freedom enjoyed by the print media really reasons -or only rationalizations? Why is it that we now require (as we in effect do) that each radio and television station must present certain types of programing-news, religion, minority interest, agriculture, public affairs? Why is it that our courts repeatedly intervene to decide, or require the FCC to decide, what issues are controversial, how many sides of those controversies exist, and what "balance" should be required in their presentation? Is it really because the detailed governmental imposition of such requirements is made unavoidable by oligopoly control of media content or by the need to decide who is a responsible licensee? Or is it rather that we have, as a

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