The U.S. Court of Appeals here upheld broad freedom for radio and television news broadcasters in presenting controversial issues in a ruling yesterday that effectively narrowed the grounds for challenges to their objectivity under the broadcast fairness doctrine.
The court upheld a Federal Communications Commission decsion that CBS did not have to respond to complaints that its 1972 coverage of so called "national security" issues had been one-sided.
The complaints had been filed by a group called the American Security Council Education Foundation (ASCEF), which had reviewed all of the CBS Evening News broadcasts for 1972 and found them to be "dovish." The group had asked the FCC to order CBS to provide those holding "hawkish" viewpoints a reasonable opportunity to present the other side.
The appeals court agreed with the FCC, however, that the issue of "national security" was too broad to force any response from CBS. Such complaints of bias, the court said, have to be "particular" and "well-defined," and not made under a "broad umbrella concept" such as "national security."
"ASCEF's blunderbuss approach to the fairness doctrine would contribute little, if anything, toward achievement of the fairness doctrine's goal, while posing all the dangers associated with governmental administration of fairness obligations," U.S. Circuit Judge Edward A. Tamm wrote for the court, which divided 6 to 3.
If ASCEF's position were accepted, Tamm said, it might force broadcasters to censor themselves and have a "serious effect on daily news programming decisions."
In its view of CBS news programs, ASCEF looked at four topics it considered relevant to "national security": U.S. military and foreign affairs; Soviet military and foreign policy; China's military and foreign policy; and Vietnamese affairs.
It divided CBS's treatment of individual reports on these issues into three categories: in favor of the U.S. increasing national security efforts, keeping efforts about the same, or decreasing efforts.
ASCEF claims it found that CBS's programs presented foreign threats to national security as requiring increased national security efforts in only 3.54 percent of its broadcast, and accused the network of engaging in advocacy journalism on "basic national security issues."
The fairness doctrine requires broadcasters to cover controversail issues of public importance and provide a reasonalbe opportunity for the presentation of opposing views. ASCEF alleged to the FCC that it had gathered specific factual information showing that CBS had violated the fairness doctrine.
The FCC said the complaint did not make a case strong enough to require CBS to respond, because it was not based on a "particular, well-defined issue." The commission added that it would be unfair to the broadcasters to force them to respond to something as vague as "national security."
Tamm said the burdens to CBS in attempting to respond to the complaint are "particularly apparent," since the network would have to review all of its programming relevant to national security - and attempt to define that term at the same time.
"That 'national security' means different things to different people is in contestable," U.S. Circuit Chief Judge J. Skelly Wright noted in a separate concurring opinion. " . . . National security by its very nature simply cannot be reduced to a definable core."
The three judges who disagreed with the majority said the FCC SHOULD HAVE AT LEAST FORCED THE NETWORK TO RESPOND TO THE ASCEF study because of its obligation to the public to see that both sides of an issue are presented on the air.
U.S. Circuit Judge Malcolm L. Wilkey, writing for himself and Judges George Mackinnon and Roger Robb, said the majority's ruling appears to approve an open-ended policy allowing the FCC to decline to review difficult fairness doctrine challenges over the complex issues.
The complaint by ASCEF raised issues of such significance, and the topic of national security was controversial enough that the FCC should have automatically put fairness doctrine machinery in motion against CBS, Wilkey and the other dissenting judges said.