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Mr. HINSHAW. You could have just said "Senegambian.”
There are two aspects to it.
In the first place, there is no such thing as a Federal liability law. Mr. HEALD. That is correct, sir. There is not.
Mr. DOLLIVER. We have no background of libelous suits in the Federal courts at all. There is no Federal law on which you can base a libel suit. That is a matter which comes under the States in our system.
Mr. HEALD. That is my understanding, sir.
Mr. DOLLIVER. So this proposal here would be an interference or intervention in a field which up to this time has been exclusively the province of the various States, is that correct?
Mr. HEALD. That is correct, sir.
Mr. DOLLIVER. You have said that there are 36 of the 48 States that have in various ways taken care of this. Do you have an explanation as to why the other 12 States have not passed any laws!
Mr. HEALD. As far as I am concerned, it would be a matter of conjecture. We support and have prepared what we call a model statute which we distribute upon request to broadcasters who are interested in presenting it.
The 36 States who have adopted it have adopted it in various forms. As I tried to point out in my statement, the laws are not adequate. In many cases they have adopted a portion of it or some part of it. Some have adpoted the entire statute.
The problem is that it is not uniform. A broadcast station in many cases covers several States, so if you have a libel, the crime is committed in every place it is heard. So it is conceivable that a broadcast station with 1 statement could be liable in 5 or 6 States.
Mr. DOLLIVER. I suppose the plaintiff in such a case would choose his own forum or choose several forums if he wanted to present his case.
Mr. HEALD. Yes.
Mr. DOLLIVER. In every instance, even if this law were passed relieving the station from liability, he would be dependent upon State law which says this creates no liability whatever for libel; does it?
Mr. HEALD. That is correct, sir. It does not.
Mr. HEALD. That is correct. He would be left with his remedy against the candidate. He would still have that right.
Mr. DOLLIVER. That brings up another question. Assume that a powerful radio tycoon got hold of a station and deliberately started upon a procedure of libeling somebody in a political campaign and he has the advice of skillful lawyers and had divested himself of every shred of any property on which a judgment for libel could be collected. In effect, then, the injured party has no remedy because he cannot go against the station under this proposed legislation. Is that not true?
Mr. HEALD. That would be true providing the station presented a legally qualified candidate—the station itself in a political campaign would not be affected. However, it would be responsible for any libelous statement under the control of the station.
May I point out that this bill provides that if the station licensee engages or joins in or is willful in any respect in committing this libel with the candidate he is not free from libel. This freedom from liability will arise only if and when the station has no responsibility for it in any way and has tried to have it removed but could not do so. Mr. DOLLIVER. Has tried to have what removed?
Mr. HEALD. The libel removed from the statement. If he agrees with it, if he abets with the candidate, or in any way makes it possible for the candidate with his cooperation to make this libel, then the station would be liable. This freedom would not apply. This exemption is limited to the very narrow case where the station has no right and is unable to prevent the libel from being uttered over the station. Mr. HARRIS. Would the gentleman yield?
Mr. DOLLIVER. Yes.
Mr. HARRIS. Do I understand you to say, then, that if a candidate would submit a statement to the station and the station had the opportunity to go over the transcript and found that there was without question libelous statements in the transcript, that you interpret the language in the proposed bill that he would then be willfully and intentionally a party to the libelous proceedings?
Mr. HEALD. I did not intend to make it that strong, Mr. Chairman. If I did, I misstated it.
He would have to participate and be actively cooperative.
Mr. HARRIS. When he puts him on the station he rather actively participates.
Mr. HEALD. But he does not participate in having the libel uttered. I would say it would have to be a conspiracy between the two where together they decided to commit this libel knowingly and willfully.
If the station, through negligence or by some mistake, failed to find the defamation on review or if seeing it and beforehand and knowing that the candidate would not remove it, I do not believe that would be a participation, knowingly and with intent to defame, as defined by the statute.
The example of Congressman Dolliver was a case where the station knowingly, willfully, intended to defame and was using the cloak of the candidate in trying to relieve himself of the liability.
This specific exemption would not relieve him of liability.
Mr. DOLLIVER. Mr. Chairman, that brings up another matter which is closely related to what has already been said; namely, it throws the burden of proof upon the plaintiff in such circumstances to prove the intent to defame or to prove the collusion which is an almost impossible burden for him to carry.
Mr. HEALD. That, I think, would be true.
Mr. DOLLIVER. Because of that procedural circumstance, it virtually relieves the defendant broadcasting station from any liability.
How can a plaintiff go in and show that the broadcasting facility deliberately and willfully entered into a collusion with the speaker to defame the victim?
Mr. HEALD. I think that is a very practical difficulty, Congressman Dolliver, but I think you would have one practical advantage. Certainly if you sue the candidate he would be glad to have the station brought in if they were equally guilty and I am sure it would be joined in the suit.
You have one practical advantage there.
Second, a complete record must be kept of all these matters for public review. So that you would have a starting point at that place to find out what contracts, who these people were, what arrangements they had. So it would not be quite as difficult as in the ordinary case. You would have several definite advantages.
But I must concede that there would be some problem. But it is not greatly different than what a plaintiff faces in any lawsuit.
Mr. DOLLIVER. I yield to Mr. Hinshaw.
Mr. HINSHAW. Would not the mere fact that the station read the transcript first and permitted broadcasting over their facilities constitute collusion of itself?
Mr. HEALD. I think that would be evidence which could be rebutted. For instance, if the station made an effort after getting the speech. and tried to have it removed and called it to the candidate's attention or something like that, and he refused, I think that would rebut any presumption that would arise from that. But if they did not take that precaution, I think that would be either evidence of negligence or gross enough, it would be evidence of willfulness.
Mr. HINSHAW. Do you mean if the candidate should make an assertion in his remarks that had not been submitted to the broadcast station that they would be excused?
Mr. HEALD. Of course, they would be because it would be impossible to do anything about it. In my opinion it would be. They would have no knowledge of it and no way of preventing it.
Mr. HINSHAW. Can they require a candidate to submit his remarks? Mr. HEALD. They cannot, as a matter of fact. If he refuses to do so and still wants time, there is nothing he can do about it, if he is the second candidate. They can, as a matter of policy, before they allow any candidate to appear, say, "You must submit scripts to us in advance." That would be applicable to all candidates. But they must treat all candidates alike.
Mr. HINSHAW. You say if he is first a candidate, they can require him?
Mr. HEALD. That is that technical point. The law provides that you must give all candidates equal time and opportunity. That means if you do not give anyone time, of course you are treating everyone equally. So it is possible when the first candidate appears and asks for time to set up certain basic rules, one of which is that all candidates must submit scripts. Then if the station treats all candidates equally he can require that all the way down the line. If he once allows the first candidate to appear without a script and just go on the air, then in turn he must treat all candidates equally.
Mr. HINSHAW. I am in some doubt myself if they can refuse.
Mr. HINSHAW. No; the station can refuse. They are a public service organization.
Mr. HEALD. Legally, they can refuse to give all time. There is another responsibility that they will be faced with, of course. They have a responsibility to operate in the public interest. Any station that would refuse to give political candidates time would probably and would very definitely be charged with failure to live up to its responsibility as a licensee. When its license came up for renewal, a very serious question would arise as to whether or not it should be renewed.
But under 315, it would not be a violation.
Mr. DOLLIVER. Just one other line of questioning, very briefly. I notice on page 2 you state there in the last paragraph, on the one hand
2 they are subject to a loss of their license if they do not permit the broadcast of defamatory matter in political broadcasts by legally qualified candidates.
I would like to ask you this question: Has there ever been a denial of the license renewal for that reason? Mr. HEALD. No, sir; there has not.
In the Port Huron case, the Commission specifically said, however, that if the station does not allow this to be broadcast, the license will be subject to denial.
While they have not done it, they have on two occasions, to my memory, in the WDSU case, 1951, specifically enforced their pronouncement that the candidate must be allowed to talk with no censorship of defamatory matter.
Mr. DOLLIVER. But there has been no actual revocation?
Mr. HEALD. We have the members of the Commission's staff here who can affirm, but to my knowledge, there has been no actual denial on that ground.
Mr. DOLLIVER. Does anyone wish to deny that or change that statement?
Mr. CHARLES EFFINGER SMOOT (Assistant General Counsel of the Federal Communications Commission). I do not know if there have been any denials. I do not know of any. That does not mean they may not have occurred.
Mr. DOLLIVER. You would certainly know about it if there had been anything of that kind ?
Mr. HEALD. I would feel confident there have not.
Mr. FLYNT. Mr. Heald, have there been many libel or slander suits brought against radio stations because of statements that candidates made against each other!
Mr. HEALD. I could not answer that accurately. I would estimate that in relation to the total number of suits brought in ordinary circumstances, I would say there are very few. That result is because the stations have fortunately been able to persuade the candidates, since most candidates are reasonable men and not doing this on purpose and the defamatory matter is unintentional, they have been successful in persuading the candidates to delete it.
There have been some cases, thought.
Mr. FLYNT. Do you not think the fact that a possibility does exist is going to make the stations a little more anxious that no defamatory statements go out over their airways? Do you not think it is a safeguard to the public generally and a safeguard to a man who does not want to be defamed for the station to have a positive and affirmative interest in this thing?
Mr. HEALD. That may be true, sir. I think, however, that the station, because of its normal interest in protecting its reputation, irrespective of whether or not there is a libel, the fact that a defamation has been made over its facilities will affect its future operations
I do not think that the passage of this act would in any way change the care in which the stations would approach this matter. I think there are other matters which are equally important to the station which it must protect. Its goodwill in the community is the only means by which this station can live. Any defamatory matter destroys that goodwill.
I think they will be equally diligent in protect and try to prevent the uttering of defamatory statements so that they are not liable.
Mr. Flynt. You will agree that with the burden of possible obligation and liability existing, that it causes them to take, more than a passive interest in protecting the good names of people who might be running for office ?
Mr. HEALD. May I say it is an additional spur. I agree to that.
Mr. Flynt. A lot of times a great many people wonder whether it is worth while to be in public office or not when you have to subject yourself to iniquitous defamations, either directly or indirectly.
Do you not think that the public interest is safeguarded even more than ever—the public interest generally, as well as the interest of candidates and officeholders—is protected to a very great degree by the fact that station management and station officials are going to try to keep anybody from being defamed over their station?
Mr. HEALD. I think that is so. I feel, however, Congressman, that this precaution is taking place at the present time and is a standard procedure in every well-run station and would continue.
I think this law will protect the station in the rare instance where the candidate is such that he will not listen to reason and insists on going ahead and the station is powerless to prevent it.
It is possible under this law as it presently stands for a candidate who for some reason is mad at his opponents and is losing all sense of reasoning to practically ruin a broadcast station if he insists, because he could cause libeľ statements to go out over the airways.
I submit that this statute is intended to cover that instance.
While you are correct in your statement that it would be an additional spur, I do not think that there is any need for that. I think the standard procedure of the station and its other interests, which are equally important, will force a station to continue to delete defamatory material whenever it legally can.
Mr. Flynt. No further questions.
Mr. HALE. The citation 4 Pike and Fischer RR 1 on the Port Huron case. What is that?
Mr. HEALD. That is the service that publishes all Federal Communications Commission decisions.
Mr. HALE. That is a decision of the Commission?
Mr. HEALD. No, sir; that is a Commission decision to which I referred.
Mr. HALE. Has any circuit court of appeals made a finding equivalent to that or similar to that in the Port Huron case ?
Mr. HEALD. As to whether or not they are prohibited from censoring? That matter, to my knowledge, has never been challenged. I know of no case where that point has come up.