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man, in such a way that if defamatory remarks are made the broadcaster will have the right-and the licensee will have the right-to shut off the station to that user who makes such remarks.
Maybe I am wrong. Maybe that is not in the American tradition, or something of the sort, but it seems to me to be that way, and I would like to have the gentlemen comment.
Mr. HEALD. Mr. Congressman, that of course would be another solution to the problem. It would be going the other way. It is strictly a matter of congressional policy and congressional policy to date is that it does not want to give the licensee that right.
Now, he has that right, of course, as to all others I should not only say the right but the responsibility, as to all other broadcasts, and he would be directly responsible as the licensee if he did not delete such libelous statements.
It is a matter of congressional policy. Up to date that policy has been that the licensee should not have that right as applied to political broadcasts.
The suggestion made as an alternative would solve the dilemma of the broadcaster and if Congress would prefer to go that way, it would be a way out of the problem; but as it stands at present, he cannot do it. He cannot censor and he cannot cut out libelous matter.
Mr. HINSHAW. I know he can cut out the libelous matter, but it seems to me that where there is outright defamation by a person, defamation of character of an individual, that it ought to be under some sort of control.
Mr. Harris. Will the gentleman yield? Mr. HALE. Will the gentleman yield? Mr. ROGERS. Will the gentleman yield ? Mr. HINSHAW. I will yield the floor. Mr. HARRIS. Mr. Rogers. Mr. ROGERS. I wanted to ask a question, but I will yield. I think Mr. Hale was first.
Mr. HALE. I wanted to make a comment. This is very interesting to me. I never read this Port Huron case and I never heard of it, but if the present law is that the station is powerless to do anything about a speech which it knows is going to be given over its facilities, which it knows is defamatory, I am very much surprised because I have a vivid recollection that when I first ran in a primary I submitted—and I always submitted the text of my speeches in advance to the attorney for the studio, and he went over them with a fine-tooth comb, so I was not allowed to defame anybody. And I supposed that was routine.
Certainly in political campaigns now, the texts of speeches are submitted in advance and it never occurred to me that the station could not refuse to broadcast a speech which was in any way defamatory.
If the law is what you say it is, I am amazed.
Mr. HEALD. Well, as to political broadcasts, if I may say so, Congressman, it is really the practice and I may say the standard practice to review all speeches of political candidates and when you find defamatory matter in their speech, you bring it to their attention and urge that it be removed. However, if the candidate is adamant and refuses to remove it, then the station is really in trouble.
There is one other technicality, of course-
Suppose there is submitted a statement, a text, which contains obscene or blasphemous material, does the station have the right to delete that?
Mr. HEALD. If he is a legally qualified political candidate and he is the second candidate. There is a loophole on a technicality. If the station starts out in the beginning and no political candidates have appeared, and the first candidate appears with a libelous statement and he refuses to delete it, the station then is free to say, “All right. No candidates have appeared at all and no candidates will appear at all,” because the law is such that it provides that if the first candidate on has made such a statement, you must give an equal opportunity to others to reply.
So if you have given no candidate the right to go on the air then, of course, technically you can refuse the air to another candidate, and you are complying with the law.
And several court decisions have turned on the point that the candidate who made the defamatory statement was the first candidate and therefore the station was not required to let him appear.
However, once you permit a political candidate to appear then all other legally qualified candidates for the same office, by law, are entitled to equal time-and that is the point—then the station is powerless to delete anything, no matter how bad it may be. .
Now, Congressman Hale, as to obscenity, of course, that throws an additional problem on it, because there are Federal statutes prohibiting obscene language being broadcast over the air.
Mr. HALE. That is a criminal offense.
Mr. HEALD. By State law, that is correct. Of course, there may be additional Federal laws that he would be violating; and then there is the question of the license for the station and the station is in a real dilemma if he is a qualified candidate.
Mr. HARRIS. Mr. Rogers.
Mr. Rogers. Mr. Heald, there are 1 or 2 questions in keeping with what Mr. Hale has been talking about.
Now, there is one thing in my mind, and as an attorney, I am sure you have thought about this
if the bill were passed as it is—What effect would it have on State laws in conflict with it?
What would be your jurisdictional situation insofar as that is concerned?
Mr. HEALD. That is a question that has been raised by several courts, Mr. Rogers, and some courts have questioned whether or not the Federal statute could deprive the citizen of the States of the property rights or protection of the right of their good name.
I feel, however, and I think there is substantial authority from the courts, that this is a matter of Federal jurisdiction and Federal legislation would preempt the field and that the State courts would be bound to adhere to it, to follow this rule, and it would be constitutional.
Mr. HARRIS. Will the gentleman yield right there?
Mr. HARRIS. You mention in your statement that there are 36 States, I believe, that have amended their State laws.
Mr. HEALD. That is correct, sir.
Mr. HEALD. In various forms. I have copies with me of all of the State statutes I mentioned, in case the committee would be interested.
Mr. HARRIS. We would be interested, but I do not know that we want to make the record that extensive. Could you name the States for the record ?
Mr. HINDSHAW. Mr. Chairman, I suggest that the list of the States be given with a citation of the statement but not necessarily place the entire statute in the record.
Mr. HARRIS. I was going to suggest submitting a list of citations of the statutes and a brief comment thereon as to what type of liability, if any, there is.
Mr. HEALD. I would be glad to do that, Mr. Chairman. I have that here, but not in that condensed form. I have the names of the States. I have each statute typed out in full for the 36 statutes.
Mr. HARRIS. You can just say that a certain State Mr. HEALD. I will be glad to report that. Mr. HARRIS (continuing). Relieves the station of all liability. Mr. HEALD. I would be glad to work that out for you. Mr. HARRIS. State B, and so forth, and so on, does this or that. Mr. HEALD. I will be glad to do that. Mr. HARRIS. Condense it in a form so that we will get to the meat of all of it, without making such a voluminous record.
(The information requested follows:)
SUMMARY OF STATE LIBEL AND SLANDER PROVISIONS A total of 36 States and the Territory of Alaska have amended their libel laws since 1952 to provide some degree of protection to broadcasters.
The following 27 States have enacted laws which provide that the licensee
Wyoming In addition, the following 22 States have enacted a provision that the licensee of a broadcast station or his agent or employee shall not be liable for defamatory statements made over the facilites of the station unless it is proved that they have failed to exercise due care to prevent the utterance of the defamatory statement: Arizona Maine
North Carolina Louisiana
Ohio Two States, Mississippi and North Dakota, have amended their laws to provide that the licensee of a broadcasting station will only be liable for the defamatory statements uttered by himself or an agent or employee thereof.
POLITICAL BROADCASTING-STATES WITH LEGISLATION RELIEVING BROADCASTERS OF
Question. If a candidate insists upon including defamatory material in a broadcast, and the station cannot censor it, who is liable if the person defamed sues?
Answer. In every State the speaker is liable. In many States, it is very likely that the station would be jointly liable. The States of Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming (and the Territory of Alaska) have, by legislation, lessened the chance of a broadcaster being held liable for defamation, which, under the FCC's interpretation of section 315, he was powerless to keep off the air. Because the law varies from State to State, broadcasters should consult their own attorneys to ascertain the situation in the locality wherein they operate.
[NARTB, General Counsel's Office, April 1952]
SEC. 910. LIBEL OR SLANDER; DEFAMATORY MATTER.-In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove on the trial the facts showing that the defamatory matter was published or spoken of him.
SEC. 911. IMPORT OF WORDS.--Every accusation of false swearing presumptively imports a charge of perjury, and every accusation importing the commission of a crime punishable by indictment must be held presumptively to mean what the language used ordinarily imports.
SEC. 913. RETRACTION MITIGATES DAMAGES.—The defendant in an action of slander or libel may prove under the general issue in mitigation of damages that the charge was made by mistake or through inadvertence, and that he has retracted the charge and offered amends before suit by publishing an apology in a newspaper when the charge had been thus promulgated, in a prominent position; or verbally, in the presence of witnesses, when the accusation was verbal or written, and had offered to certify the same in writing.
Sec. 914. AGGRIEVED PERSON MUST GIVE NOTICE TO PUBLISHERS OF ALLEGED LIBEL BEFORE VINDICTIVE DAMAGES CAN BE RECOVERED.— Vindictive or punitive damages shall not be recovered in any action for libel on account of any publication concerning the official conduct or actions of any public officer, or for the publication of any matter which is proper for public information, unless 5 days before the bringing of the suit the plaintiff shall have made written demand upon the defendant for a public retraction of the charge or matter published ; and the defendant shall have failed or refused to publish within 5 days in as prominent and public a place or manner as the charge or matter published occupied, a full and fair retraction of such charge or matter.
SEC. 915. WHEN ACTUAL DAMAGES ONLY RECOVERABLE.—If it shall appear on the trial of an action for libel that an article complained of was published in good faith, that its falsity was due to mistake and misapprehension and that a full correction or retraction of any false statement therein was published in the next regular issue of said newspaper, or in case of daily newspapers, within 5 days after service of said notice aforesaid, is an conspicuous a place and type in said newspaper as was the article complained of, then the plaintiff in such case shall recover only actual damages.
SEC. 916. RECANTATION AND TENDER; EFFECT OF.-If the defendant, after or before suit brought, make the recantation and amends recited in the preceding sections, and also tender to the plaintiff a compensation in money, and bring the same into court, the plaintiff can recover no costs, if the jury believe and find the tender was sufficient.
SEO. 917. EFFECT OF TENDER RECEIVED.—The receipt of the money tendered, if before suit brought, is a bar to the action; if after suit, releases the defendant from all damages and costs, except the costs which accrued before the tender and receipt of the money.
(NARTB, General Counsel's Office, April 1952]
Alaska Compiled Laws, 1949 SEC. 65-4-28. LIBEL AND SLANDER.—That if any person shall wilfully, speak, write, or in any other manner, publish of, or concerning another, any defamatory or scandalous matter with intent to injure or defame such other person, he shall be guilty of a misdemeanor, and upon conviction thereof he shall be imprisoned * * *. Any allusion to any person or family, with intent to injure, defame, or maliciously annoy such family shall be deemed to come within the provisions of this section.
NOTE.—Criminal statute; civil action not defined.
Be it enacted by the Legislature of the State of Arizona:
SECTION 1. The owner, licensee, or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee, or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee, or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast: Provided, however, The exercise of due care shall be construed to include a bona fide compliance with any federal law or the regulation of any federal regulatory agency.
SEC. 2. In no event, however, shall any owner, licensee, or operator, or the agents or employees of any such owner, licensee, or operator of such a station or network of stations, be held liable for any damages for any defamatory statement uttered over the facilities of such station or network by or on behalf of any candidate for public office.
SEC. 3. In any action for damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only such actual damages as he has alleged and proved.
[NARTB, Legal Department, June 1953]
AN ACT To relieve radio broadcasting stations from liability for defamatory matter in
Be it enacted by the General Assembly of the State of Arkansas:
SECTION 1. Neither the owner, licensee, or operator of a visual or sound radio broadcasting station or network of stations nor his agents or employees shall be liable for any damages for any defamatory statement published or uttered in, or as a part of, a visual or sound broadcast by a candidate for political office in those instances in which, under the acts of Congress or the rules and regulations of the Federal Communications Commission, the broadcasting station or network is prohibited from censoring the script of the broadcast.
Sec. 2. All laws or parts of laws in conflict herewith are hereby repealed. Sec. 3. This Act shall take effect upon its passage and approval by the Governor. Approved : February 23, 1953. Effective: June 11, 1953.
(NARTB, General Counsel's Office, April 1952]
CALIFORNIA CIVIL CODE
SEC. 45. LIBEL.--- Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes