The First Amendment; Robert Smith

The eastern Public Radio Network in cooperation with the Institute for democratic communication at Boston University now presents the First Amendment and a free people to a weekly examination of civil liberties in the media. In the 1970s the host of the program is the institute's director Dr. Bernard Reuben. Two recent cases involving civil rights issues one a New York case and the other one decided by the United States Supreme Court deserve our attention. The first one deals with Roy Cohn David shine. I think the listeners will remember their prominence from the McCarthy period and Mr. Roy Cohen's case from subsequent inventors that adventures that he has had. The second case involves the Supreme Court decision in the case of the First National Bank of Boston versus Bill Oddie which was decided by a five to four and which allows in from the decision

corporations to spend almost as much money as they want on political projects. As far as we can read the situation with me to discuss these important cases is my colleague from Boston University Dr. Robert Smith the chairman of the broadcasting film department. Bob Suppose we take a look at Conan versus NBC which was decided in in March as well of one thousand eight hundred seventy eight. It involves Roy Cohen as we said and David shine and charges they brought against the National Broadcasting Company Inc. And Universal city's studios incorporated Universal Studios. Because of a television or made for television movie called Tailgunner Joe and they brought two actions one to protect their rights against invasion of privacy and the second to protect their rights against being defamed. Bob why don't

you pick it up there and if you will start by telling us a little about Tailgunner Joe. Well of the two cases that we're going to talk about this afternoon Bernard I attach much more importance to the second one this first one it seems to me is a made case in the sense that according to the court. CONAN shy and when they learned about the film separately addressed each each of them separately addressed both NBC and universal the motion picture producers and withheld their consent to the use of any actors to represent them and then requested an opportunity to view the movie so that they could correct any errors or inaccuracy as that occurred in it. So in a certain sense this was a case that was in the making from the beginning NBC and universal must have known that it was likely to come up and Conan shine put themselves in a position by withholding consent so that where they could raise the issue. There are two separate issues that come up. The first one of course concerns privacy were they private individuals who might have been living their lives in happy obscurity until the film was

broadcast in which case their privacy was them. Violated and they they suffered some sort of loss. The second concerns defamation was their malice. Is there a demonstration of malice on the part of the producer to defame them. These are two separate issues and the court found separately. I was always makes of it just to show their seriousness of course the amount of money you ask for in a court case shows you seriousness no matter what you expect to get but they on one count wanted five million dollars and on the other count the punitive damages of 15 million dollars. The court decisions though have consistently in a number of cases. A New York Times vs. Sullivan and other recent cases hell that where there is a an overriding public interest in political or social events in what we might call history or public

affairs that you do have to show malice you know order too. Have anybody bring a case excessively against a motion picture producer against a radio producer or a or a television producer. In this particular case though I think that perhaps I attach a little more importance than you inferred because the law of defamation in the law of privacy are now being pushed to very sensitive points to fine point and we literally don't know how far a producer can go for the mass media. Yes defamation is at odds with the First Amendment and the courts have to pick their way through that that no man's land between them. Why don't we talk first about privacy though because I think that you have your shoes there are somewhat clear. The courts over a period of time have have developed three criteria for determining whether or not someone is

like someone's privacy has been violated if they are portrayed in some way in the mass media. The first is if a person is a public officer or an elected official or appointed official of a government. Those people in that category do not have or have minimal protection under privacy of a second if is if the person is a public figure. And so this presumably would include actors and persons of that sort anyone who is in the public arena. And the third is if the topic is of general interest. And this is where perhaps a corporate officer who is does not figure in either of the first to get a Cory's could conceivably be the subject of public interest because of an issue involving the corporation or some other group with which he or she is concerned. In this case I think both Cohen and shine don't have a very good claim on privacy they both figured at one time in the public eye they the film concerned the very incidents for which they were known at that time. And I think it would be

difficult particularly for Roy Cohn to claim that he has been living in obscurity he has figured in a couple of cases that are prominent and had was the subject of essentially a celebrity interview. Just a bit over a year ago in a magazine. And so given that record it seems to me there is relatively little claim to privacy. The the interesting aspect of this I think might be to what extent to someone who is a staff member of say a senator's office or. Perhaps of a less ranking figure and so the State Department the Labor Department. To what extent is that person considered a public figure and the courts have an oyster shine might have taken that position but certainly Cohen could not have. Shine was in most ways a minor figure in the McCarthy period his name was dragged in he was trying to get a commission and so on. But Cohen was the counsel for Karthik committee and Cohen was

the major protagonist against Mr Welch. Cohen was the defender of the principles I think. Cohen When he asked Universal Studios and NBC to see this production had a pretty good idea that it was going to be a very unfriendly rendition of Mr. McCarthy. One of the things that Mr. or Messrs CONAN John didn't like is McCarthy's role as Tailgunner Joe or what not seem to have been depicted in such a way as to give credence for those who believe that it was a fabrication that McCarthy McCarthy's claim was a fabrication that he had shrapnel in his leg and that sort of thing. And also they didn't like the attitudes toward him. Their trips to Europe to investigate the United States Information Agency in the mid 900 hundred 50s. They they didn't like how to talk. Certainly Mr. Condit now defamation.

Yes well let's see you off the privacy the the three categories we've talked about would suggest that there isn't much of a case concerning violation of privacy that's what the court found. Well and I know in this case the historical record in the court or an agreement and their privacy was not I lent him a shot inside the court. In this New York State case it doesn't say too much of the you know New York State Supreme Court except that I missed Mr. Cohen and Mr. shine do have a point and that they have sufficiently. They have sufficiently taken a position that is going to be sanctioned by the constitutional principles. Now whether they will go to another court whether the case will be remanded whether they'll win any money against NBC or what the next stage will be I don't know. But let me ask you this question Bob. They were participants in this story the McCarthy story which is now very much like other major stories in the CT points out the McCarthy period is

known as one of the significant periods in American history. Do you feel that they can be defamed if by someone else's interpretation watching them on television seeing their action reading about them in the newspaper if someone else honestly believes that they their attitude was this or that in going to Europe or in supporting Senator McCarthy or any other thing they did. Certainly they can be defamed I. We can't know what they are. But if the person is doing is making commentary honestly without without too much exaggeration but reaches different conclusions than they do about their own work. Well there is room for a fair comment but this is a dramatic presentation so this falls in a different category and I think it raises an interesting question. For dramatic consistency the director may have to side that he had to depict them in a certain light and may have gone beyond the facts and the court seems to suggest that for instance in the book burning scene I haven't seen the film so I don't want to

pretend that I'm commenting on it from first hand knowledge. But there is a book burning seen in the film and it refers to both CONAN shine and the ordinary observer of the film The court decided would conclude that they were among the book burners and they maintain they were not. This it seems to me as it is a clear issue for the court to deal with and they are defamed if they were in fact not involving that going back to those times. The words book burning of course carry a certain connotation of their own. But going back to that times in the visits to various posts of the United States Information Agency in Europe they did throw a scare they did look around quite a bit. There was a removal of some books now. Again whether they could be accused of being amongst the book burners I think that's pretty far fetched. But if they were amongst those who walked around. Casting an extreme chill the opposite of book burning upon the literary offerings of the United States Information Agency and its operations. I'm not so

sure that the court really has got something grasped here but it remanding it now for further drought yes it will come up again providing the corn in China want to take advantage of this and raise it. What it it does suggest though is that the court will have to deal with the factual matter not with the matter of attitude were they in favor of these activities but rather did they specifically participate in the events depicted in the film and it'll be on those matters of fact that the court will ultimately make its judgement. I think the interesting part though concerns the problem of using real events what sometimes are called docu dramas but fiction is based on real events and a director quite often a writer or director will have to make some take some liberties with facts in order to make a cohesive whole so that the audience has a satisfying dramatic experience. And if he does that he may make a statement that is a general truth but a specific falsehood and under defamation law as it exists now that would constitute defamation if the person wished to. Well I can leave

it. We can say this in this particular case. There was enough there so the courts let another court take a look into the question as to whether you should get compensation. I don't think that we know it all now. On the defamation side where corn and shine will will not be successful but it does raise many many questions as you point about docu dramas. And there is much controversy is there not. Apart from this case on the accuracy of docu dramas as to whether one which depicted the the Indian and Indian saga in the West or whether it was not all made up from the word go to create a very powerful Indian leader in modern television guys. Whether the story of Martin Luther King was sufficiently critical whether the guns are bottom of the guns of ordering or Eleanor and Franklin about the

Roosevelts was sufficiently penetrating or whether Mr. Roosevelt doesn't come out as well as Mrs. Roosevelt. But then again Joseph Lashon his biography I think makes Mrs. Rose come out better almost throughout. Let's now turn to the other case which is the case of. First National Bank of Boston versus Bill Oddie now the Supreme Court of the United States decided by a 5 to 4 decision on April 26 to allow corporations to spend really under the First Amendment. I think as much as they want in relation to issues referendum issues on the ballot what is raised by opening this Pandora's Box Robert. Well I think this goes fundamentally to changes that are happening in the society we live in a society that grew up on on the business tradition as Carl Kazan has called it and free speech was part of that. The Ford advertisement in the 1930s in

which conservative commentators spoke on issues of interest to Henry Ford were an extension of the old entrepreneurial corporation where they the views of the president or the majority stockholders could be expressed freely wherever they wished. This gave them a tremendous advantage in the marketplace of ideas because the corporation if it wanted to could spend a great deal of money to present its views whereas opposing groups. Are likely to be handicapped seldom did one corporation oppose another except in product advertising. The consequence was if you are dealing with will say a citizen group that's opposed to a corporation the the corporation has a potentially great advantage in having advertising budgets to deal with. There has been a slowly developing corrective action in the creation of a different kind of society we have funded public interest groups and citizen groups now that pursue the interests of those other people to speak out on issues.

Well let's take a look at the facts of this case before we go into the intricacies. Massachusetts passed a law saying that corporations could not spend money on referenda or issues that that were not directly related to their business interests commercial interests industrial interests or what have you. The First National Bank and other companies were interested in such items on the referenda. A few years ago as a graduated income tax. Now when Massachusetts passed this law saying that you have to have a direct interest in the referendum question. And there are many referendum questions on electricity rate for electricity and so on and so forth. They appeal to the United States Supreme Court. Now by a 5 to 4 decision with Justices Brennan Marshall white and Rehnquist voting in the minority the court felt that large corporations or corporations have as much free speech as the individual then Burgo went on did he not to make remarks about the

whole issue of monopolies especially media monopolies. There are two parts to this one is should a corporation enjoy free access to the marketplace of ideas through broadcasting. Oddly we are concerned with this kind of problem in publishing there seems to be a sufficient variety of of access media in the world using all book publishing because as Berger pointed out he's worried about these. Conglomerates which are blotting publishing houses and but it's specifically a problem in broadcasting that's where the primary thrust is. This is really the second part of a position that I think just as Berger is trying to develop in 1973. He held that the short comings of unlimited paid access would be to outweigh the advantages for the society as a whole because he as he sought

the views of the affluent would prevail. If they were given unlimited access and at that time he seemed to be arguing for some kind of limitation but he hoped that the limitation would not be a legal one that it would not become a matter for regulatory agencies or courts. And at that time he argued his phrase was for better or worse editing is what editors are for. And he looked to the media themselves to govern their own content. Now he's come one step further and he said that for most corporations he is willing to take a chance on allowing them to spend money as they wish on these issues. But he's bothered by the possibility that a corporation that owns as one subsidiary network as RCA or CBS. Or a publishing house may use that to give themselves an opportunity to propagandize What if for instance Westinghouse which is much concerned with atomic energy and nuclear power generation were to use the Westinghouse Broadcasting Stations to promote the use of nuclear power.

Let's look at that now. Westinghouse you mention Westinghouse we could just use that as an illustrative company or a name of a company. Suppose Westinghouse is against Mrs Jones Mrs Jones. As pointed out by Chief Justice Berger may have a mimeograph machine or may make telephone calls or may may do anything else she wants to oppose them or to support them. They have the same free speech the giant corporation and Mrs. Jones has. And I approve of that that freedom of speech is that way but the difficult part here is that Congress has passed laws trying to regulate elections so that those with the biggest amount of money don't win or don't influence unjustly. The House committee the House of Representatives Committee Chairman Frank Thompson Jr.. Has said that immediately following the Berger decision in this case that he is going to convene the committee to look into the whole question as to whether Congress ought not do something about it. Whether this does not have a chilling effect upon all the previous legislation which aimed at equalising the law I think that the Congress

may take action in this field. The Supreme Court does not preclude it by this decision. Well it's an interesting problem because in this case the First Amendment and the public interest as our society is developing now seem to be clearly in conflict. If corporations have unlimited access this is going to weigh in the marketplace and one way the FCC at one time did a study of controversy the issues and the role of major corporations in them and found that news items on that issue were slightly favored. The if you want the citizen action or the pro-environment group. But once the corporation commercials were included it weighed slightly in favor of the corporation it wasn't a great deal of imbalance either way but it's a decisive issue if a corporation is allowed access to to advocate its point of view. And yet a newspaper the New York Times is a giant corporation it owns New York Times Books it owns the Arno press.

Holt Rinehart and Winston is owned by CBS and Mifflin here in town is in the process of being invested in I gather is I get the term for it. Dc dc Heath is owned by Raytheon. No I'm not implying that because these companies own these institutions that they automatically use these institutions to spread their voices in any direction that is not true Toure. But there is the potential there for forecasting a corporate mold upon what used to be the outlet for individual opinions. And of course books are the outlet for individual opinions. Well there's been a good move there have been a number of instances in which fairly conservative publishers have given voice to fairly radical authors. And so in the marketplace other seem to be enough contenders. That book that's likely to get a sizable market is likely also to find a publisher in broadcasting it operates differently and what's different about broadcasting since we have so many stations now and

UHF television as well as in his own little opinion broadcast. Yes I think what's different about it is not so much the the number of voices but in fact that there is a different tradition we have a regulatory tradition in broadcasting that we don't have in print. I think if this issue were relays were raised in relationship to print should for instance we have a Federal publication committee that would look into publishing I think the First Amendment conflict would be very clear. We think it become accustom to thinking that there ought to be a limitation on broadcasters and so it doesn't seem to us a First Amendment problem if we talk about should a broadcaster be able to. Carry unlimited amounts of material of whatever kind he chooses. They operate with quite different traditions. Well Burger though is right and issues that are raised are clear. The issue coming from this First National Bank vs. Bill Oddie decision which the court in which the court favored the corporation on its spending in a referendum and so

on giving a free speech rights raises questions about how we're going to conduct our whole political life in this country and raises new questions about new election laws and raises new questions about Lobby legislation. I think it's a step back from the citizens movement if we if we say that the corporation's leaders of corporations have all of the First Amendment rights of any private citizen if they wish to express their views even as officers of a corporation but they express them only in the. Media available to any other citizen. We would make a fundamentally different kind of arena for public discourse if we say that the corporation itself has rights in this area. Then we were talking about a society that's probably going to favor. Well let me put it this way in terms of content I assume that most corporations would favor growth in the gross national product that they would favor private property then concern about it that they're likely to be concerned with full

employment I think we're likely to find low taxation. I think we're likely to find that the citizen groups are concerned more with the sociology izing with the the quality of life with the preservation of the environment the assurance of rights for minorities and the poor. So we're making a decision about a different kind of state. Well it is certainly true that when Justice Berger spoke for the court the majority of the court in its 5 to 4 decision he did take a an old bandage off a deep wound and said let's take a look at what that wound really looks like. I'm not saying that free speech is protected this way or that way. But I do want to take the bandage off that's covering the need for the surgeon to probe. And if we believe in freedom of speech I think he's fundamentally correct that Mrs. Jones has the same rights as the giant corporation you mentioned Westinghouse I could take General Motors or General Foods but at the same time the fact that they have the same rights doesn't mean they have the same privileges.

Well this can lead to a distinction let me give you one example we've seen in Exxon commercials on the NBC Nightly News references to the discovering of uranium. There's been no discussion of what their uranium is going to be used for. But there we have a general impression that somehow discovering uranium is a good thing if the corporation feels freer now we're likely to find discussions of the potential of uranium for solving some of our energy problems. We're not only out of readers but they're also. With the same rights they share the same responsibilities so it could very well be that if they step out of line let us just take your own uranium example step out of line and say something that is not so they discovered uranium and this and that and the other thing is going to flow from it. If they misinterpret the facts if they in effect put the squelch on a private interest group by the by the persistence of the power of their propaganda it could be that they can be as responsible as Mrs W or Mrs

Jones is who yells across the backyard fence that her neighbor is in some ways unsavory. And if it's heard by a third party she could be held responsible. Well it raises also one other question this relates to a corporation addressing an editorial. Matter there is a separate tradition in this country of what could be called privilege commercial speech and that is essentially is advertising in any way protected by the First Amendment and we have a of fairly long history in this country of granting certain kinds of protections. But it was tested I think in relation to broadcasting by Cap Cities group station owner when the ban on cigarette advertising was passed. Camp cities took it to the D.C. District Court and lost and the reason they insisted that this was a First Amendment question and the D.C. District Court denied Cap Cities their their appeal and their grounds were that

first of all advertising is protected less stringently than other kinds of free speech that's one distinction another they said that the electronic media have a unique character and so it's not restricted in print there are cigarette ads there. And then they said the Congress has the authority to pass a ban on any kind of advertising at least in the electronic media. And so we have two things happening one is a distinction between broadcast media and print media. The other is the distinction between advertising is protected speech and editorial comment is a different kind of protected so dear listeners we have actually found a connection between in these two cases from New York State and the United States Supreme Court of recent vintage a connection between Roy Cohn in the First National Bank of Boston in the on the ground. Both have raised issues of the First Amendment which are among the most difficult. And both cases show us how much more we have to look forward to in terms of contention analysis reformation and new ideas about what the First

Amendment means. I'm delighted to have my colleague Robert Smith here for this edition. Bernard Reuben. The eastern Public Radio Network in cooperation with the Institute for democratic communication at Boston University has presented the First Amendment as a free people weekly examination of civil liberties in the media. In the 1970s the program was produced in the studios of WGBH Boston. This is the eastern Public Radio Network.