Law in the news; Freedom of expression upon public questions

The National Education already own network presents a law in the news with Professor Joseph R. Julan associate dean of the University of Michigan Law School. There are a number of well understood legal propositions. One of them is freedom of expression upon public questions being secured by the First Amendment as the United States Supreme Court has said and repeated this constitutional safeguard was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Judge learned hand once put it this way. The First Amendment presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many this is and always will be folly. But we have staked upon it our all in New York Times against Sullivan the High Court held us right of freedom of expression to bar a public official from recovering damages for a

defamatory falsehood relating to his official conduct unless the public official proves that the statement was made with actual malice. This meaning with knowledge that the statement was false or with reckless disregard of whether it was false or not. This New York Times case may be said to have enlarged the First Amendment right of freedom of the press. This by removing or at least significantly limiting the law of libel is a restrictive legal principle except in the most extreme of cases. Now in a quite different context the issue of freedom of expression is again before the court. The New York Times case is however being urged as controlling precedent. The court is faced with the constitutionality of the Federal Communications Commission Fairness Doctrine licensees are required to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. This provision of the Federal Communications Act

has been construed as imposing an affirmative obligation to provide a balanced presentation of controversy or public issues of substantial importance within this framework. The FCC has a personal attack rule which requires broadcasters to allow persons criticized during broadcast time and under certain circumstances time in which to defend themselves. This is of course not precisely analogous to a case of libel or the law of libel but if a newspaper is no longer to be materially inhibited by the laws of libel under the New York Times decision why should a radio or TV station be deterred from political commentary by way of having to provide free airtime to one under personal attack. Such FCC rules so the argument goes will lead to a blandness in broadcasting rather than the biting criticism which is so necessary to our government and in the course of the discussion of public importance matters. There are of course differences between newspapers and radio and TV facilities as solicitor general Griswold pointed

out to the court in the course of oral argument in the case at issue. We don't have a federal press commission but we do have a Federal Communications Commission. We don't license newspapers but we do license stations and Dean Griswold continued. It is inconceivable we the United States would enjoin publication of a newspaper still on license stations are stopped so there must be some difference. The solicitor general was defending the right to reply to personal attack rule of the FCC FCC noting that the government and the FCC are the real champions of the First Amendment by encouraging the right to press views not already popular. Counsel for the broadcaster to say the least. Disagreed. He suggested that the pervasive threat presented by the rule would have a chilling effect on broadcasters. The rule imposing a self imposed form of censorship which would work against free speech. The censorship being no less virulent for being self imposed. The argument was further made in that this requirement that both sides of a controversy be presented

if one is would lead to neither being presented. This case is an important one. The airwaves are limited and as Mr Justice White put it any question to council if the exclusive right to use the airwaves is given to one shouldn't there be an obligation to share really as is true of the public streets still. Should the First Amendment receive a somewhat different interpretation when being applied to radio and television. And when the press is involved although the airwaves may indeed be limited it's pretty difficult for the man on the street to start a newspaper these days. But on the other hand who wants a federal press commission not this commentator. PROFESSOR JOSEPH R. Julan associate dean of the University of Michigan Law School as a presented law in the news recorded by the University of Michigan broadcasting services. This is the national educational radio network.