Farmers Educational & Cooperative Union v. WDAY, Inc.

360 U.S. 525, 79 S. Ct. 1302, 3 L. Ed. 2d 1407, 1959 U.S. LEXIS 660

• Court: Supreme Court of the United States
• Decided: June 29, 1959
• Docket: 248
• Status: Published

Opinions

Mr. Justice Black

delivered the opinion of the Court.

We must decide whether § 315 of the Federal Communications Act of 1934 bars a broadcasting station from removing defamatory statements contained in speeches broadcast by legally qualified candidates for public office, and if so, whether that section grants the station a federal immunity from liability for libelous statements so broadcast. Section 315 reads:

“(a) 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 upon any licensee to allow the use of its station by any such candidate.”¹

This suit for libel arose as a result of a speech made over the radio and television facilities of respondent, WDAY, Inc., by A. C. Townley — a legally qualified candidate in the 1956 United States senatorial race in North Dakota. Because it felt compelled to do so by the requireménts of § 315, WDAY permitted Townley to broadcast his speech, uncensored in any respect, as a reply to previous speeches made over WDAY by two other senatorial candidates. Townley’s speech, in substance, accused his opponents, together with petitioner, Farmers Educational and Cooperative Union of America, of conspiring to “establish a Communist Farmers Union Soviet right here in North Dakota.” Farmers Union then sued Townley and WDAY for libel in a North Dakota State District Court. That court dismissed the complaint against WDAY on the ground that § 315 rendered the station immune from liability for the defamation alleged. The Supreme Court of North Dakota affirmed, stating: “Section 315 imposes a mandatory duty upon broadcasting stations to permit all candidates for the same office to use their facilities if they have permitted one candidate to use them. Since power of censorship of political broadcasts is prohibited it must follow as a corollary that the mandate prohibiting censorship includes the privilege of immunity from liability for defamatory statements made by the speakers.” For. this reason it held that the state libel laws could not apply to WDAY. 89 N. W. 2d 102, 110. We granted certiorari because the questions decided are important to the administration of the Federal Communications Act. 358 U. S. 810.

I.

Petitioner argues that § 315’s prohibition against censorship leaves broadcasters free to delete libelous material from candidates’ speeches, and that therefore no federal immunity is granted a broadcasting station by that sec-tion. The term censorship, however, as commonly understood, connotes any examination of thought or expression in order to prevent publication of “objectionable” mate-rial. We find no clear expression 'of legislative intent, nor any other convincing 'reason to, indicate Congress meant to give “censorship” a narrower meaning in § 315. In arriving at this view, we note that petitioner’s interpretation has not generally been favored in previous considerations of the section. Although the first, and for years the only judicial decision dealing with the censorship provision did hold that a station may remove defamatory statements from political broadcasts,² subsequent judicial interpretations of § 315 have with considerable uniformity recognized that an individual licensee has no. such power.³ And while for some years the Federal Communications Commission^ views'on this matter were not clearly articúlated,⁴ since 1948 it has continuously held that licensees cannot remove allegedly libelous matter from speeches by candidates.⁵ Similarly, the legislative history of the measure both prior to its first enactment in 1927, and subsequently, shows a deep hostility to censorship either by the Commission or by a licensee.⁶

More important, it is obvious that permitting a broadcasting station to censor allegedly libelous remarks would undermine the basic purpose for which § 315 was passed— full and unrestricted discussion of political issues. by legally qualified candidates. That section dates back to, and was adopted verbatim from, the Radio Act of 1927. In that Act, Congress provided for the first time a comprehensive federal plan for regulating the new and expanding art of radio broadcasting. Recognizing radio’s potential importance as a medium of communication of political ideas, Congress sought to foster its broadest possible utilization by encouraging broadcasting stations to make their facilities available to candidates for office without discrimination, and by insuring that these candidates when broadcasting were not to be hampered by censorship of the issues they could discuss. Thus, expressly applying this country’s tradition of free expression to the field of radio broadcasting, Congress has from the first emphatically forbidden the Commission to exercise any power of censorship over radio communication.⁷ It is in line with this same tradition that the individual licensee, has consistently been denied “power of censorship” in the vital area of political broadcasts.

The decision a broadcasting station would have to make in censoring libelous discussion, by a candidate is far from easy. Whether a statement is defamatory is rarely clear. Whether such a statement is actionably libelous is an even more complex question, involving as it does, consideration of various legal defenses such as “truth” and the privilege of fair comment. Such issues have always troubled courts. Yet, under petitioner’s view of the statute they Would have to be resolved by an individual licensee during the stress of a political campaign, often, necessarily, without adequate consideration or basis for decision. Quite possibly, if a station were held responsible for the broadcast of libelous material, all remarks evenly faintly objectionable would be excluded out of an excess of caution. Moreover, if any censorship were permissible, a station so inclined could intentionally inhibit a candidate’s legitimate presentation under the guise of lawful censorship of libelous matter. Because of the time limitation inherent in. a political campaign, erroneous decisions by a station could not be corrected by the courts promptly enough to permit the candidate to bring improperly excluded matter before the public. It follows from all this that allowing censorship, even of the attenuated type advocated here, would almost inevitably force a candidate to avoid controversial issues during political debates over radio and television, and hence restrict the coverage of consideration relevant to intelligent political decision. We cannot believe, and we certainly are unwilling to assume, that Congress intended any such result.

II.

Petitioner alternatively argues that § 315 does not grant a station immunity from liability for defamatory statements made during a political broádcast even though the section prohibits the station from censoring allegedly libelous matter. Again, we cannot agree. For under this interpretation, unless a licensee refuses to permit any candidate to talk at all, the section would sanction the unconscionable result of permitting civil and perhaps criminal liability to be imposed for the very conduct the statute demands of the licensee. Accordingly, judicial interpretations reaching the issue have found an immu-' nity implicit in the section.⁸ . And in all those cases concluding that a licensee had no immunity, § 315 had been construed — improperly as we hold — to permit a station to censor potentially actionable material.⁹ In no case has a court even implied that the licensee would not be rendered immune were it denied the power to censor libelous material.

Petitioner contends, however, that the legislative history of § 315 shows that Congress did not intend to grant an immunity.^ Some of the history supports such an inference. As it reached the Senate, the provision which became § 18 of the Radio Act of 1927 provided in part that if a station permitted one candidate to use its facilities, it should “be. deemed a common carrier in interstate commerce . . .” and could not discriminate against other political candidates or censor material broadcast by them.¹⁰ . In the Senate, Senator Dill — the bill’s floor manager — introduced an amendment to this provision which, among other things, specifically granted a station immunity from civil and criminal liability for “any uncensored utterances thus broadcast.” ¹¹ The amendment was adopted by the Senate, but its provision expressly granting immunity was removed by the Conference Committee without any explanation.¹² Section 18 was incorporated into the Communications Act of 193á with no explanatory discussion. Subsequently, a great deal of pressure built up for legislation to remove all possible doubt as'to broadcasters’ liability for libel either by granting them a power to censor libelous statements or by providing an express legislative immunity. Many legislative proposals were made to accomplish these purposes,¹³ but no legislation providing either was ever enacted. Thus, whatever adverse inference mhy be drawn from the failure of Congress to legislate an express immunity is offset by its refusal to permit stations to avoid liability by censoring broadcasts. And more than balancing any adverse inferences drawn from congressional failure to legislate an express immunity is the fact that the Federal Communications Commission — the body entrusted with administering the provisions of the Act — has long interpreted § 315 as granting stations an immunity.¹⁴ Not only has this interpretation been adhered to despite many subsequent legislative proposals to modify § 315, but with full knowledge of the Commission’s interpretation Congress has since made significant additions to that section without amending it to depart from the Commission’s view.¹⁵ In light of this contradictory legislative background, we do not feel compelled to reach a result which seems so in conflict with traditional concepts of fairness.

Petitioner nevertheless urges that broadcasters do not need a specific immunity to protect themselves from liability for defamation since they may either insure against any loss, or in the alternative, deny all political candidates use of station facilities.¹⁶ We have no means of knowing to what extent insurance is available to broadcasting stations, or what it would cost them. Moreover, since §.315 expressly prohibits stations from charging political candidates higher rates than they charge for comparable time used for other purposes, any cost of insurance would probably have to be absorbed by the stations themselves. Petitioner’s reliance on the stations’ freedom from obligation “to allow use of its station by any such candidate,” seems equally misplaced. While denying, all candidates use of stations would protect broadcasters from liability, it would also effectively withdraw political discussion from the air. Instead the thrust of § 315 is to facilitate political debate over radio and television. Recognizing this, the Communications Commission considers the carrying of political broadcasts a public service criterion to be considered both in license renewal proceedings, and in comparative contests for a radio or television construction permit.¹⁷ Certainly Congress knew the obvious — that if a licensee could protect himself from liability in no other way but by refusing to broadcast candidates’ speeches, the necessary effect would be to hamper the congressional plan to develop broadcasting as a political outlet, rather than to foster it.¹⁸

We are aware that causes of action for libel are widely recognized throughout the States. But we have not hesitated to abrogate state law where satisfied that its enforcement would stand “as an obstacle to the. accomplishment and execution of the full purposes and objectives of Congress.” ¹⁹ Here, petitioner is asking us to attribute to § 315 a meanifig which would either frustrate the underlying purposes for which it was enacted, -or alternatively impose unreasonable burdens on the parties governed by that legislation. Iri the absence of clear expression by Congress we will not assume that it desired such a result. Agreeing with the state courts of North Dakota that § 315 grants a licensee an immunity from liability for libelous material it broadcasts, we merely read § 315 in accordance with what we believe to be its undérlying purpose.

Affirmed.

1 48 Stat. 1088, as amended, 47 U. S. C._ § 315 (a). See also, § 18 of the Radio Act of 1927, 44 Stat. 1170.

2 Sorensen v. Wood, 123 Neb. 348, 243 N. W. 82. Following this decision the case .was remanded for a new trial. Appeal from a judgment for plaintiff was dismissed by the Supreme Court of Nebraska. Appeal to this Court was dismissed sub nom. KFAB Broadcasting Co. v. Sorensen, 290 U. S. 599, because, as the records of this Court disclose, the Supreme Court of Nebraska's holding had been based on adequate state grounds, namely, that the case had become moot through settlement.

3 See Lamb v. Sutton, 164 F. Supp. 928; Yates v. Associated Broadcasters, Inc., 7 Pike and Fischer Radio Reg. 2088; Felix v. Westinghouse Radio Stations, Inc., 89 F. Supp. 740, rev’d on other grounds, 186 F. 2d 1; Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A. 2d 440; Josephson v. Knickerbocker Broadcasting Co., 179 Misc. 787, 38 N. Y. S. 2d 985. But see Daniell v. Voice of New Hampshire, Inc., 10 Pike and Fischer Radio Reg. 2045; Houston Post Co. v. United States, 79 F. Supp. 199.

4 See In re Bellingham Broadcasting Co., 8 F. C. C. 159, 172.

5 In re Port Huron Broadcasting Co., 12 F. C. C. 1069; In re WDSU Broadcasting Corp., 7 Pike and Fischer Radio Reg. 769; Public Notice (FCC 54-1155), Use of Broadcast Facilities by Candidates For Public Office, 19 Fed. Reg. 5948, 5951; Public Notice (FCC 58-936), Use of Broadcast Facilities by Candidates For Public Office, 23 Fed. Reg. 7817, 7820-7821.

6 See S. Rep. No. 1567, 80th Cong., 2d Sess. 13-14 (1948), where, discussing S. 1333, the Committee Report stated:

“The flat prohibition against the licensee of any station exercising any censorship authority over any political- or public question discussion is retained and emphasized. This means that the Commission cannot itself or by rule or regulation require the licensee to censor, alter, or in any manner affect or control the subject matter of any such broadcast and the licensee may not in his own discretion exercise any such censorship authority. . . .

“[SJection 326 of the present act, which deals with the,question of censorship of radio' communications by - the Commission . . . makes clear that the Commission has-absolutely no power of censorship over radio communications and, that it cannot impose any regulation or condition which would'interfere with the right of free speech by radio.” .

And see, e. g., H. R. Rep. No. 404, 69th Cong., 1st Sess. 17-18 (minority views); S. Rep. No. 772, 69th Cong., 1st Sess. 4; ,67 Cong. Rec. 5480, 5484, 12356; 78 Cong. Rec. 10991-10992; Hearings before Senate Committee on Interstate Commerce on S. 1 and S. 1754, 69th Cong., 1st Sess., pt. 2, 121, 125-134; Hearings before Senate Committee on Interstate Commerce on H. R. 7716, 72d Cong., 2d SeSs., pt. 2, 9-13; Hearings before Senate Committee on Interstate Commerce on S. 814, 78th Cong., 1st Sess. 59-68, 943-945.

7 §29 of the Radio Act of 1927, 44 Stat. 1172; §326 of the Communications Act of. 1934, 48 Stat. 1091, as amended, 47 U. S. C. § 326.

8 Lamb v. Sutton; Yates v. Associated Broadcasters, Inc.; Josephson v. Knickerbocker Broadcasting Co., supra, note 3. Cf. Felix v. Westinghouse Radio Stations, Inc.; Charles Parker Co. v. Silver City Crystal Co., supra, note 3.

9 Houston Post Co. v. United States, supra, note 3; Sorensen v. Wood, supra, note 2; Daniell v. Voice of New Hampshire, Inc., supra, note 3.

10 H. R. 9971, 69th Cong., 1st Sess., as reported to the full Senate, May 6, 1926, p. 50, § 4.

11 67 Cong. Rec. 12501.

¹²

H. R. Rep. No. 1886, 69th Cong., 2d Sess. 10,18.

13 See, e. g., H. R. 9230, 74th Cong., 1st Sess.; S. 814, 78th Cong., 1st Sess., §§ 7, 9, 10, 11; S. 1333, 80th Cong., 1st Sess., §15; 98 Cong. Rec. 7401. See also Hearings before the Senate Committee on Interstate Commerce on H. R. 7716, 72d Cong., 2d Sess., pt. 2, 9-11; Hearings before Senate Committee on Interstate Commerce on S. 2910, 73d Cong., 2d Sess. 63-67; Hearings before Senate Committee on Interstate Commerce on S. 814, 78th Cong., 1st Sess. 59-68, 162-163; 362-381, 943-945; Hearings before Select Committee of the House to Investigate the FCC, pursuant to H. Res. No. 691, 80th Cong., 2d Sess. 1-109.

14 See note 5, supra. In Port Huron only two of the five Commissioners participating in the decision expressly concluded that § 315 barred state prosecutions for libel. Two of the others expressed no view on the subject. And one dissented. The Commission’s 1948 report to Congress stated, however, that the Commission had interpreted § 315 to grant a federal immunity. 14 F. C. C. Ann. Rep. 28 (1948). And in WDSU, released November 26, 1951, a majority of the Commission affirmed the Commission’s Port Huron decision. 7 Pike and Fischer Radio Reg. 769. See also 24 F. C. C. Ann. Rep. 123 (1958); Lamb v. Sutton, supra, note 3, at 932-933; Daniell v. Voice of New Hampshire, Inc., supra, note 3, at 2047; Charles Parker Co. v. Silver City Crystal Co., supra, note 3, 142 Conn., at 619, 116 A. 2d, at 446.

15 The Commission’s position with respect to § 315 was not only reported to Congress in an Annual Report.of the Commission, 14 F. C. C. Ann. Rep. 28 (1948), but it was made the subject of-a special investigation by á Select Committee of the House, expressly constituted for that purpose. See H. R. Rep. No. 2461, 80th Cong., 2d Sess. See also In re WDSU Broadcasting Corp., supra, note 5, at 772-773. Compare H. R. Rep. No. 2426, 82d Cong., 2d Sess. 20-21. For examples of legislative proposals to modify §315 see, e. g., S. 2539, 82d Cong., 2d Sess.; H. R. 4814, 84th Cong., 1st Sess.

16 A dissent here suggests that since WDAYis broadcast was required by federal law, there is a “strong likelihood” that the North Dakota courts might hold that the broadcast was not tortious under state law, or if tortious, was privileged. The North Dakota District Court, however, struck down a state statute which would have granted WDAY an immunity as in violation of a state constitutional provision saving to “every man” a court remedy for any injury done his “person or reputation.” In this situation we do not think that the record justifies the inference that WDAY could have obtained an immunity by calling it a privilege. But whatever North Dakota might hold, the question for us is whether Congress intended to subject a federal licensee to possible liability under the law of some or all of the 49 States for broadcasting in a way required by federal law.

17 In re City of Jacksonville, 12 Pike and Fischer Radio Reg. 113, 125-126, 180 i-j; In re Loyola University, 12 Pike and Fischer Radio Reg. 1017, 1099. See also In re Homer P. Rainey, 11 F. C. C. 898. Cf. F. C. C. Report, In re Editorializing by Broadcast Licensees, 1 Pike and Fischer Radio Reg., pt. 3, 91:201.

18 See, e. g., statement of Senator Fess, 67 Cong. Rec. 12356.

19 Bethlehem Steel Co. v. New York Labor Board, 330 U. S. 767, 773; Hill v. Florida, 325 U. S. 538, 542. See also San Diego Building Trades Council v. Garmon, 359 U. S. 236; California v. Taylor, 353 U. S. 553.