The First Amendment; John Taylor Williams

The First Amendment and a free people. A weekly examination of civil liberties and the media in the United States and around the world. The program has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University the host of the program is the institute's director Dr. Brown a group of. How far should government go in trying to promote minority access to the mass media in this country. What remedies should it pro pound in with the force of law or the force of regulation or sheer power of government. One of the rights of minorities to insist that in a free capitalistic society they be given greater access to radio and television and so on. Today I have the pleasure of having as my guest John Taylor Williams the distinguished legal attorney who represents many literary clients from the firm of Haussmann Davison and Shannon. John Williams is a graduate of Harvard University in the University of Pennsylvania Law School. He's a practitioner

who specializes in communication and intellectual property law. John I. Ask that question. So let me just bring it right at you. How far should government go and what are the theories behind government intervention to push for more minority access in the mass media. That's a big question right. That's not a simple one either. No. And I think you first have to start off with what your goals are before you before you decide how you're going to get there and assuming that increasingly the goal as articulated by both the courts and the legislature and the press and the consumers of communications products are that they want a balanced reporting and they want balanced reporting not only in an intellectual sense of balance that both sides of an issue are covered but they want to be sure that it's balanced in the sense of the participants coming from both genders all races

and religions and that's a fairly new goal I think for the press. Since the world began basically right well there are affirmative action programs of every type and the new approach of the courts especially I'd like to sort of generalize before we get to these specific cases is to invent doctrines and then follow one of the doctrines of the courts and of government is affirmative action. Another doctrine is what what your percentage is of the general minority population and and how willing you are to to bring minorities into the program. Could I do well for a moment on this theory of the invention of doctrines as a court procedure that's becoming exceedingly popular. I think that's that's a good thing to do. One of the problems I think with

doctrines is of course there's always a counter doctrine against those doctrines that are designed to achieve affirmative action or the doctrines that are designed to achieve. Non-interference with the press in the form of First Amendment protections now shalt not dictate programming Thou shalt not dictate the way news is gathered and the way news is written and the way news is broadcast and those two sometimes come into conflict. Isaiah Berlin has this philosophy that art and democracy are the antithesis of each other if you will. If you really look at the definitions of both of the men and that is in a way the problems with these doctrines. You have one doctrine designed to achieve the most free intellectual discourse possible and at the same time you have the problem that that free intellectual discourse may not be balanced because the people who are engaging in free intellectual discourse are upper income white

males who own control or work in the communications media and that obviously has to bring. Slant Well one of the things that is obvious is that the number of minority peoples Hispanics blacks Asian Americans indeed women and others in the mass media especially in positions of executive importance of direction editorial work or whatnot is very very small. It's pathetically small pathetically small and not enough is being done to to correct the situation. Now one of the ways that people are attempting to adjust or putting pressure on is through these cases being bought by minority groups. I'd like to refer to the first case that a lot centers on and that's titled The bilingual bicultural coalition on Mass Media Inc. Which is the parent versus the Federal Communications Commission.

This was a case that as I say rests upon which rests so many newer cases in the last year was the basic issue there. Well the case is a mouthful isn't it just getting the name out. Actually there were two cases that were hurled together by the. By the FCC and then they were heard together by the United States Court of Appeals in Washington the first one you just referred to the bilingual bicultural coalition was a group challenging the license renewal of a station in San Antonio Texas station KOSU no on the basis that it had not met its affirmative action goals is to find both by EEOC and the Federal Communications Commission and shouldn't be renewed. In particular because it had an enormous amount of Mexican-Americans in its broadcast area and its an employment area and yet its percentage was nowhere comparable to the amount of people available from Mexican-Americans

and the companion case Chinese for affirmative action versus the FCC was a similar case brought by. The Chinese for affirmative action representing the Asian population of a station again up for renewal that had a broadcast area in San Francisco and Oakland California which had a large Asian population and the court in revealing the fact that the FCC had granted renewals in those two cases went through I think painstakingly and it's clear that the court was concerned about whether or not they were in this case setting up artificial goals and whether or not even if they set them up there was any ability to enforce them because the courts only hear the appeals and the license renewals and the challenges to those renewals. And there are 3000 renewals a year that the FCC has to handle with only I think 12 or 13 judges. The more complex that renewal procedure becomes the more it bogs down. On the

other hand they did not want to dismiss challenges brought by groups such as these appellants where the statistical data that these opponents came up with showed a real underutilization in the broadcaster and the license application. In this case the applicant's of the dominant minority group in the broadcast area so the two things that really came out of that case which seem to be extremely important and one of the so-called dominant minority theory where the court says that the FCC should focus in on the dominant minority in the area the applicant and secondly whether or not as to that dominant minority of the stations met its burden of of hiring enough people and having enough people in certain grades of employees to meet the so-called zone of reasonable is test that the FCC originated in 77 so no the zone of reasonable and US means that the station in any particular case given

its dominant minorities given the available people given a an affirmative action intention have enough people women or minorities or minorities to satisfy the courts that they represent the community or that their programming is produced by a collection of people who fairly depict the community situation. You mention two things though that are not that in a way the courts have chosen not to mix and one is whether there is some form of discrimination in programming. In other words does the programming. Truly represent the various minorities which the programming area is serving as opposed to does the broadcaster which produces the programming have employees in various categories that meet their affirmative action let's let's keep to the employee's side. There are two major categories of employees. Those who are in the top

four situations of employment in terms of their positions being influential at a television or radio station and those who are in the more menial jobs. And a lot depends upon how many people are important people. We're dealing with very small percentages are typically in in some stations we have less than 15 percent women and other minorities do we not. Oh I think many you know many. And so what when you talk about a doctor another Mary Tyler Moore probably other than when you talk about a doctor in your employment situation should meet the census figures somehow the census proportions. How do you do this and and what are the courts saying for example what do the courts say in the bilingual case teamed up with the Chinese for affirmative action case. What did they order done. When these groups come in and say we

insist that more minorities be put in to these stations otherwise we think that the license or not be renewed for the people that have it. What did the court ordered. Well my recollection of what the court did here and which court was it this is the United States Court of Appeals in the District of Columbia. It's in Washington basically that's the court that will hear all the appeals coming up from the FCC licensing. This is the circuit court level right that's right now it's the law. It's the court hearing next to our Supreme Court. Our second highest court of appeal. Supreme Court being the ultimate court. And there they actually went they split on the case involving the San Antonio licensee. They suggested that the FCC ought to reconsider licensing that station whereas they affirmed the licensing of the station being challenged for not having enough Asian employees. So they they did make it distinct. Difference in the approach to the two license applicants for renewal.

And if you use a sort of a rule of reason approach certainly the San Antonio Texas applicant who had a Mexican-American audience and employment area that is. My recollection is around 44 percent of the available people for employment in the station were Mexican American and I think they were down around 14 percent of their employees and I don't think they had anyone in the top four positions as you've talked and that had increased I think 1 percent over the last year they've been reviewed for affirmative action. The court referred to it as a passive affirmative action program that was probably doing it more justice than it deserved whereas the Chinese for affirmative action suit. The Asian job applicant pool was actually not the dominant minority recollections that the black applicant pool was the dominant minority in the in that station in San Francisco Oakland. And there they looked at the records of the employer and they looked at a little differently

then the FCC had they looked at people who were only temporary but later became part time they took a sort of a larger view and they felt that they had met the test in the zone of reasonable is test as it comes down and it's not ironclad clearly out of those cases. Is this 50 percent goal. In other words your employees in job categories other than the top four. If you have an area for instance that has 44 percent Mexican-Americans and that's your dominant minority at least 50 percent of that number should be represented in your actual profile of your employees so you would should have somewhere in excess of 22 percent of your employees drawn from the Mexican-American community. But when you get into the top four jobs it drops to 25 percent of the dominant minorities applicant pool. Dumb down a minority of course is somewhat of a misnomer since the largest minority of women who are actually majority in in many job applicant pools as far as total

persons go. So one of my friends referred to women as the 51 percent minority. Well it's statistically I think probably even larger than that. Now when we deal with Mexican-American or black Americans we know there is a tremendous lack of professional training. We know that a lot of that lack of professional training because there are lack of training programs there's a lack of monies there's a lack of collegiate programs offering them positions I don't want to go through all of that that history. But when it comes to women. It's not quite that way. There aren't as many women of vailable for top positions as one would think. Fifty one percent of our population doesn't give us 51 percent availability in Los Angeles in the case of Los Angeles Women's Coalition versus the Federal Communications Commission. Again the District of Columbia Circuit the United States Court of Appeals what was the

substantial problem there. Again my recollection of that case burn was that the Los Angeles Women's Coalition were challenging. Again it was the license renewal of a station. And they were saying that there was a substantial under-employment of women by the by the renewal applicant. This was a station called K T TV K. S.O.P in Los Angeles. And again the court following bilingual case we've just been talking about this case involving the San Antonio and in Oakland San Francisco stations used this statistical approach and they use something called the standard Metropolitan Statistical Area to determine where the employees are being drawn from where the eligible employment pool is and then they take a look at that and compare the various minorities in that pool with the profile of the station. In this case the applicant for renewal.

And here they found that they were within the zone of reasonable is a set out in the bilingual case as far as their employment of women. And they also were I think a little provoked by the fact that this case was brought nine months after the renewal process instead of. During the renewal process of the FCC would have had a better opportunity to look over the complaint that the Los Angeles women's call coalition had. It also seems to be somewhat of a mixture of programming content as well as under-employment they were they were taking it both ways and it's understandable they were saying well even if you meet this statistical mumbo jumbo that you set out the fact of the matter is that the programming is still clearly male dominated and the male stereotyped image of what women are interested in hearing is not Charlie's Angels and whatever it may be it's that's clearly a man's definition of women's programming. And again there's obviously something to be said for that approach but the mixture of the two didn't appeal to the court. Now when the protest by the women's. Protest group lobby

group was met by the court determining that the case be reminded to the Federal Communications Commission. To me this means that we really don't know what to do with this. I think in this case that's not sober. Well why not. Well if you read the decision I've got it right in front of me. When I reached the conclusion that I did know let's see we're not I mean if you read the decision I think the court is saying we're going to send it back down again for findings that are consistent with the bilingual case. But they send a fairly distinct message to the commission that in their opinion if you apply the rules that we set out bilingual this case is going to be dismissed by the commission. And the dissenting judge remember there's a dissent in this case he says. He says Why the hell send it back then we can decide right up here that this case is basically frivolous. This station has met its affirmative action goals and it and those affirmative action goals are in compliance with Arizona reasonable test. Well this is where you get all hung up. I don't think that the

case was frivolous. I think it's frivolous under the terms of the doctrine. I think the doctrines the zone of reasonableness is impossible to apply. If you get on a seat let's say there are six seats on the inside of a circular hoop say twenty five feet tall and you're rolling down the street. You're always inside the hoop you're never going to escape from that trap. You never smash to death because you would be smashed if you're on the other side of who put your always inside in order to break out of this. This hoop women have to get more people in the executive positions. How do we how do we get the courts to understand that this nice little pat relationship they have with the FCC the FCC with the courts and these and these don't shield me darkness are not going to be satisfactory to the minority groups. Well I don't want to be cast in the position of defending the court in any of these cases because it's impossible to defend them if you're concerned about.

A truly representative group of employees who will truly represent programming decisions that are based on everybodys decision about what program content should be and so that everybodys point of view is taken into consideration. I'm not so sure that I would agree with that either in other words. I'm not sure you're advocating that. I'm not saying that a community ought to be reflected exactly in radio or television stations but on the other hand I'm saying that most of the minorities are consistently ignored. Let us take the question of blacks. There are so few blacks in radio and television stations that a good case can be argued and I've just read a brilliant treatise on this that the so-called coon image of blacks and the high yeller image of blacks this minstrel see imagery has come from before our national history was begun and can be seen in the latest

version and some of the programs of 979 on television. The only way to break out of that particular hooping is to get blacks who understand doing some creative programming somewhere along the lines when you cross from 15 percent to 17 percent to 19 percent there is no there is no percentage that I would stand for. You do discover a creative person who creates new programs. If you're too small in percentage the chance the odds against you being creative in programming at the station a very small right but it you know it really is very sophisticated because you want to have your minority employees just as your majority employees doing what they do best. And if they happen to have no interest in affirmative action broadcasting their interest isn't great music. You can't really force that person to say what we want you as our minority program or we want you to determine what the needs of the community are for broadcasting input and if you're not good

at that we don't really want you as our music critic or a drama critic or face to face News interviewer I think. The problem with this goes back to your point about when you start stereotyping in the form of statistics you begin to also stereotype in the form of programming because it's a self-fulfilling prophecy prophecy and you want those people to represent the minorities. Statistics that are assigned to them and then of course they're supposed to perform only as a minority and they're not supposed to perform as as an intellectual broadcaster. And so there's a. I mean this is what's happened of course in the sense of the of the backlash an affirmative action where you hold spots open in universities and employers for minorities and you give you give a privilege or a special special interest to people who are from minorities and of course the majority says look it should be the best person because they can afford to say that since if the statistics are such that they have a 2 out of

1 chance of getting it but there is and there is that other other end of your problem. JOHN WILLIAMS Let me let me throw this out to you. If there is a problem that you suggest in these doctrines and I suggested these doctrines maybe we need not to attack doctrines but we need a new doctrine. Maybe the search for doctrines is a valid search that the courts can apply tests. One of the tests might be that if you are in a capitalistic society as we are we enjoy the much of the benefit of that society. That and you make X Y Z millions dollars on a television station that you ought to be taxed a certain percentage. To support training programs is in colleges and universities for creative television radio writing novels or whatnot and hope from that that you will get the creative top tore the top four position people coming into the industry. In other words I'm saying that it's not so much representation that bothers me as

the fact that that we're ignoring the the paucity of opportunity to become a person of significance in our mass media society. Oh I've you know I wouldn't I wouldn't differ with that I'd I think probably it's a three prong thing and all of them will end up in some kind of doctrines one is when the license originates in the first place whether it's by renewal or by original application. That there should be a lot more sampling of what the community wants as far as program and ownership. And I think ownership is extremely important the court points out in the dissent and bilingual. You can talk all you want about the employees and how many you get from each minority group. But if minorities don't own or have a voice in ownership they really never going to have a great voice in programming because the emphasis is going to be on entertainment not on content. And if they don't get good ratings and that show goes off and if the if if you lose black nose and get the Jeffersons basically which is I think the

way all broadcasting is going is becoming it's becoming an entertainment media as opposed to an information media. And I think that's why public television is public radio and all of these forms of information communications are becoming more and more popular and they're not having the trouble they had originally getting the funding as people are fed up with the communications media that's completely oriented to entertainment. Now we're on the edge of cable television we're on the edge of. Also it's a new innovative kind of mass media communication. If there is a breakout for minorities maybe it should be subject to these discussions to be subject to investigations by such organizations as the Securities and Exchange Commission to see how money is raised for funding and how money is raised through banking and whatnot so that that there will be some minority owned television stations. There must be there should be affirmative action as to the number of stations that minority should hold in

our society where you saw that announcement that I'm sure use that I saw which was these disk stations that were going to be licensed in the Indian reservation out in Roseburg So reservations out North Dakota and the Small Business Administration made a loan to Tom broker who was a millionaire a self-admitted millionaire to set up those stations because they quote couldn't find any qualified minorities and of course that's the almost 90 percent Indian broadcasting area to take over the ownership of the station. Well I don't know what they mean by qualified because I think that that is specifically untrue. I think if you're looking for somebody who owns a bank or somebody there owns a giant finance company say well I want to be part of that team backing that I think you're not liable to find too many American Indians or blacks or Mexican-Americans and so on. But I think if you look for specific individuals you can find them. I know that I think in Rochester New York they connect newspaper chain health

to this group to finance 24 of its 27 million dollars necessary to establish this as a black dominated radio station. And even here in town we did have some help to get one of our television in Boston one of our television stations with that just being subject to Renewal financed by 15 percent of black representation on the board of directors. But it shouldn't have to rest on paternalism. No but. My final question is this Joan Williams and I really am trying to dig at this are the courts really helping fast enough. Are they helping effectively enough or are we being hung up on any long range process of FCC legal action in which the minorities might by 1990 find themselves not sufficiently advancing from. I would think the courts are the real refugees and where I'd head if I were a minority and particularly if I had minority clients who were interested in under SCHIP or

participation in the programming station because the FCC whether you like it or not is highly politicized it's made up of seven people all presidential appointees in the chairman's appointed by the sitting president and Cheney and one person comes off every year and a new one goes on is very little can know when the courts are sufficiently sensitized. The federal courts Well they're certainly more familiar with applying affirmative action goals and standards than the FCC is. Well John Williams I want to thank you very very very much because this is a very difficult area but one of those areas in which upon almost everything depends and it's simple to talk in the abstract but talking about these three cases I find exceedingly helpful and I hope the listeners have as well. For this edition Bernard Ruben. The First Amendment and a free people a weekly examination of civil liberties and the media in the United States and around the world. The engineer for this broadcast was Margo

Garrison. The program is produced by Greg Fitzgerald. This broadcast has produced cooperatively by WGBH Boston and the Institute for democratic communication at Boston University which are solely responsible for its content. This is the station program exchange.