Section 315(a) of the Federal Communications Act of 1934
provides, in effect, that, if anyone licensed to operate a radio
broadcasting station shall permit any person who is a legally
qualified candidate for public office to broadcast over such
station, he shall "afford equal opportunities" to all other such
candidates for that office, and "shall have no power of censorship"
over the material broadcast under this section.
Held:
1. Such a licensee may not delete material from a candidate's
radio speech on the ground that such material may be defamatory.
Pp.
360 U. S.
527-531.
2. Regardless of state law, such a licensee is not liable for
defamatory statements made in a speech broadcast over his station
by a candidate for public office under § 315(a). Pp.
360 U. S.
531-535.
89 N.W.2d
102 affirmed.
Page 360 U. S. 526
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. [
Footnote 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 requirements 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
Page 360 U. S. 527
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 section. The term
censorship, however, as commonly understood, connotes any
examination of thought or expression in order to prevent
publication of "objectionable" material. 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
Page 360 U. S. 528
defamatory statements from political broadcasts, [
Footnote 2] subsequent judicial
interpretations of § 315 have, with considerable uniformity,
recognized that an individual licensee has no such power. [
Footnote 3] And while, for some years,
the Federal Communications Commission's views on this matter were
not clearly articulated, [
Footnote
4] since 1948, it has continuously held that licensees cannot
remove allegedly libelous matter from speeches by candidates.
[
Footnote 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. [
Footnote 6]
Page 360 U. S. 529
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
Page 360 U. S. 530
first, emphatically forbidden the Commission to exercise any
power of censorship over radio communication. [
Footnote 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 of basis for decision. Quite
possibly, if a station were held responsible for the broadcast of
libelous material, all remarks even 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
Page 360 U. S. 531
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 broadcast, 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 immunity implicit in the section. [
Footnote 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. [
Footnote 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
Page 360 U. S. 532
should "be deemed a common carrier in interstate commerce . . .
," and could not discriminate against other political candidates or
censor material broadcast by them. [
Footnote 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." [
Footnote 11]
The amendment was adopted by the Senate, but its provision
expressly granting immunity was removed by the Conference Committee
without any explanation. [
Footnote 12] Section 18 was incorporated into the
Communications Act of 1934 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, [
Footnote 13] but no legislation providing
either was ever enacted. Thus, whatever adverse inference may 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
Page 360 U. S. 533
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. [
Footnote
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. [
Footnote 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
Page 360 U. S. 534
use of station facilities. [
Footnote 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 us 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. [
Footnote 17] Certainly Congress knew
the obvious -- that, if a licensee could protect
Page 360 U. S. 535
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. [
Footnote 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." [
Footnote 19] Here, petitioner is asking us to
attribute to § 315 a meaning which would either frustrate the
underlying purposes for which it was enacted or, alternatively,
impose unreasonable burdens on the parties governed by that
legislation. In 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
underlying purpose.
Affirmed.
[
Footnote 1]
48 Stat. 1088, as amended, 47 U.S.C. § 315(a).
See also
§ 18, of the Radio Act of 1927, 44 Stat. 1170.
[
Footnote 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.
[
Footnote 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,
reversed 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.
[
Footnote 4]
See In re Bellingham Broadcasting Co., 8 F.C.C. 159,
172.
[
Footnote 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.
[
Footnote 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. . .
."
"
* * * *"
"[S]ection 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."
[
Footnote 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.
[
Footnote 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
[
Footnote 9]
[
Footnote 10]
H.R. 9971, 69th Cong., 1st Sess., as reported to the full
Senate, May 6, 1926, p. 50, § 4.
[
Footnote 11]
67 Cong.Rec. 12501.
[
Footnote 12]
H.R.Rep. No. 1886, 69th Cong., 2d Sess. 10, 18.
[
Footnote 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.
[
Footnote 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 3 164 F.Supp.
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.
[
Footnote 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 a 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.
[
Footnote 16]
A dissent here suggests that, since WDAY's 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.
[
Footnote 17]
In re City of Jacksonville, 12 Pike and Fisher 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.
[
Footnote 18]
See, e.g., statement of Senator Fess, 67 Cong.Rec.
12356.
[
Footnote 19]
Bethlehem Steel Co. v. New York Labor Board,
330 U. S. 767,
330 U. S. 773;
Hill v. State of Florida, 325 U.
S. 538,
325 U. S. 542.
See also San Diego Building Trades Council v. Garmon,
359 U. S. 236;
California v. Taylor, 353 U. S. 553.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN, MR. JUSTICE
WHITTAKER, and MR. JUSTICE STEWART join, dissenting.
The language of § 315 of the Federal Communications Act, "such
licensee shall have no power of censorship over the material
broadcast under the provisions of this section," [
Footnote 2/1] and the legislative history of this
provision call for the conclusion reached in
360 U.
S. namely, that WDAY could not have lawfully deleted
from
Page 360 U. S. 536
A. C. Townley's broadcast his defamation of petitioner. But due
regard for the principle of separation of powers limiting this
Court's functions and respect for the binding principle of
federalism, leaving to the States authority not withdrawn by the
Constitution or absorbed by the Congress, are more compelling
considerations than avoidance of a hardship legally imposed.
Consequently, the claim that WDAY cannot be held liable under
constitutionally enacted state libel laws must be tested not by
inquiring whether a particular result would be "unconscionable,"
but whether the result is or is not barred by federal legislation
as construed and applied in accordance with settled principles of
statutory and constitutional adjudication. When the question in
this case is thus properly put, it is necessary to examine the
three relevant legal concepts to which resort must be had in order
to find that WDAY is not liable for defamatory remarks broadcast by
it.
(1) If § 315 could be construed to contain implicitly, between
the lines, a grant by Congress of immunity from state libel laws,
the Court's result would follow. But it is not possible to find
such implied grant of immunity. It is common ground that an express
provision granting such immunity was excised from the bill which
later became the Radio Act of 1927, and repeated attempts in later
revisions of the Act to introduce similar provisions have
failed.
(2) If there were consistent administrative rulings that the
Communications Act required that immunity be granted, and if that
administrative ruling had been acquiesced in by Congress even by
implication, the Court's result would have support.
(3) If § 315 alone, or together with the remainder of the
Communications Act, could be said to manifest a congressional
purpose to oust state law from application to licensees, or if the
state law could be said to be in clear
Page 360 U. S. 537
conflict with § 315 or the Act as a whole, then, in either
event, it could be concluded that the libel law of the State had
been preempted insofar as its applicability to a broadcaster acting
within § 315 is concerned.
Because I believe that agreement with the Court's conclusion
involves either disregard of the legislative and administrative
history of § 315 or departure from the principles which have
governed this Court in determining when state law must give way to
overriding federal law, I dissent from
360 U.
S. and therefore from its judgment.
An administrative agency cannot, of course, determine the
constitutional issue whether a federal statute has displaced state
law, certainly not by way of determining what Congress has, in
fact, done.
In re Port Huron Broadcasting Co., 12 F.C.C.
1069, the case in which the Federal Communications Commission first
held that stations could not censor, the Federal Communications
Commission's dictum that stations would not be liable was not a
relevant administrative interpretation of the meaning of § 315, but
was a finding that the States were preempted from this area. It was
said not that the broadcasters operating under § 315 had a
federally created defense, but that the state libel laws had been
supplanted.
"The conclusion is inescapable that Congress has occupied the
field in connection with responsibility for libelous matter in
broadcasts under section 315. . . ."
12 F.C.C. at 1075-1076.
We have here not a course of administrative interpretation of an
ambiguous statutory provision; it is not even a case of a single
administrative application of a statute. This is a ruling of
constitutional law -- that the Supremacy Clause, Const. art. 6
requires that the existence of the Communications Act of 1934 oust
the States of jurisdiction to impose libel laws upon broadcasts
made under the provisions of § 315. Such constitutional rulings are
for this Court, and not for
Page 360 U. S. 538
administrative agencies. I would suppose that a consistent
administrative insistence on the constitutionality of § 315, were
that a question, would not affect this Court's consideration of its
constitutionality.
But suppose that, even as to preemption, we are to assume that
Congress should be said to defer to consistent administrative
interpretation. There was no such consistency here in the FCC. The
Commission has never issued a regulation, nor held in an
adjudicatory proceeding that there is immunity. Dictum in the
Port Huron case was affirmatively embraced by only two of
the five Commissioners who presided. Since
Port Huron, the
Commission has referred to its language in that case in
increasingly tentative fashion. In
In re WDSU Broadcasting
Corp., 7 Pike and Fischer Radio Reg. 769, 770, the FCC said of
its dictum in
Port Huron:
"We said in the
Port Huron case that, in our view, the
station was relieved from liability, but that, whether or not this
was the case, the fact remained that a licensee is prohibited from
censoring material broadcast under the provisions of § 315."
In a regulation issued in 1958, the Commission answered the
question "[i]f a legally qualified candidate broadcasts libelous or
slanderous remarks, is the station liable therefor?" in this
way:
"In
Port Huron Bctg. Co., 4 R.R. 1, the Commission
expressed an opinion that licensees not directly participating in
the libel might be absolved from any liability they might otherwise
incur under state law, because of the operation of section 315,
which precludes them from preventing a candidate's utterances."
23 Fed.Reg. 7820. Thus, the FCC has demonstrated apparent waning
confidence in its
Port Huron dictum -- from "[t]he
conclusion is inescapable" to "in our view, the station was
relieved
Page 360 U. S. 539
from liability, but . . . , whether or not this was the case,"
to "an opinion that licensees . . . might be absolved from any
liability."
Even if the FCC's position were of a type to which the principle
of deference or acquiescence were applicable, even if that position
were longer held than just the past decade, and were taken with
more confidence than was true here, the history of congressional
dealings with the question of liability of stations for libel would
not support a conclusion that Congress had acquiesced in such a
ruling. For, when the last congressional discussion of an immunity
provision took place in 1952, the Conference Committee, in
reporting out the revised version of § 315, stated it had rejected
a House immunity provision [
Footnote
2/2]
". . . because these subjects have not been adequately studied
by the Committees on Interstate and Foreign Commerce of the Senate
and House of Representatives. The proposal was adopted in the House
after the bill had been reported from the House committee. The
proposal involves many difficult problems, and it is the judgment
of the committee of the conference that it should be acted on only
after full hearings have been held."
H.R.Rep.No. 2426, 82d Cong., 2d Sess. 21. This language negates,
rather than supports, the conclusion that Congress, in failing to
enact proposed immunity measures, was in fact acquiescing in the
Port Huron dictum. [
Footnote
2/3]
Page 360 U. S. 540
For these many reasons, a conclusion that, in failing to change
§ 315 after the
Port Huron decision, Congress, by its
inaction effected the preemption which the Commission had found is
an assumption wholly unsupported in fact. The attempt to use
congressional acquiescence to support the constitutional ruling of
supersession of state law raises political stalemate and
legislative indecision [
Footnote
2/4] to the level of constitutional declaration. As we should
go slow to read into what Congress has said the negation of state
power unless it speaks explicitly or there is obvious collision, we
should even less willingly find such negation in what Congress has
frankly refused to say.
The Court proceeds not only from an insupportable finding that
Congress acquiesced in the Commission's
Port Huron
opinion. It also relies upon a determination that North Dakota's
libel law could not constitutionally be applied to WDAY in this
case, since the State's libel
Page 360 U. S. 541
laws had been superseded by federal law for broadcasts made
under § 315. A determination of supersession of sate law rests on
legal and political presuppositions which should be made explicit,
and not left clouded. States should not be held to have been ousted
from power traditionally held in the absence of either a clear
declaration by Congress that it intends to forbid the continued
functioning of the state law or an obvious and unavoidable conflict
between the federal and state directives. The first does not exist
here. Indeed, congressional refusal to act has often been suggested
as implied recognition of the opposite. Thus, it may well be urged
that repeated refusal to relieve from state libel laws amounted to
an affirmance that the state laws of defamation should continue in
operation, since the Congress debated the issue in terms of
erecting a defense to these laws, and then declined to do so. In
any event, the legislative history emphatically does not support
the affirmative conclusion that Congress intended preclusion of
state law. Congress can speak with drastic clarity when it so
intends. It has not so spoken here; it has refused to speak with
drastic clarity.
The nature of the conflict which necessitates striking down
state law has been considered in numerous decisions of this Court.
In the much-cited case of
Sinnot v.
Davenport, 22 How. 227,
63 U. S. 243,
this Court said:
"We agree that, in the application of this principle of
supremacy of an act of Congress in a case where the State law is
but the exercise of a reserved power, the repugnance or conflict
should be direct and positive, so that the two acts could not be
reconciled or consistently stand together."
Whether denying to WDAY the power to eliminate defamatory matter
from broadcasts made under compulsion of § 315, while at the same
time refusing to find in
Page 360 U. S. 542
§ 315 either immunity or a negation of state power to apply
libel laws to programs required by the Federal Act is or is not
fair, is not the question with which this Court must, consistent
with the Supremacy Clause and the long history of this Court in
construing it, begin. We are dealing with political power, not
ethical imperatives. The most harmonious deduction to be drawn from
the many cases in which the claim has been made that state action
cannot survive some contradictory command of Congress is that state
action has not been set aside on mere generalities about Congress'
having "occupied the field," or on the basis of loose talk, instead
of demonstrations about "conflict" between state and federal
action. We are in the domain of government and practical affairs,
and this Court has not stifled state action unless what the State
has required, in the light of what Congress has ordered, would
truly entail contradictory duties or make actual, not
argumentative, inroads on what Congress has commanded or
forbidden.
It is to be noted initially that since defamation is generally
regarded as an intentional tort, it is a solid likelihood that the
North Dakota courts would conclude that WDAY's compelled broadcast
of Townley's speech lacked the necessary intent to communicate the
defamation, and that therefore WDAY's conduct was not tortious, or,
if
prima facie tortious, that WDAY was privileged.
[
Footnote 2/5] In no case has any
state court held a station liable on finding that the station could
not censor. Some forty States have enacted statutes granting
various degrees of privilege. [
Footnote
2/6]
Page 360 U. S. 543
In two States, exercising the flexibility of common law
principles, the courts have extended a defense of privilege to
broadcasters compelled to carry broadcasts by § 315. [
Footnote 2/7] Thus, the largely abstract
assumption on the basis of which the Court makes such heavy inroad
on state laws -- that broadcasters will be held without having
committed a volitional act -- may be entirely contradicted by
experience.
How treacherous it is for this Court to be speculating about
state law is well illustrated by a detailed examination of North
Dakota law in the situation presented by this case. A North Dakota
statute extending general immunity to all broadcasts by radio and
television stations was found by the District Court of North Dakota
to violate the North Dakota and United States Constitutions. WDAY,
the appellee before the Supreme Court of North Dakota, did not
except to this finding, and therefore the Supreme Court of North
Dakota declined to rule on the validity of the North Dakota
statute. But no inference may be drawn from the District Court's
conclusions that a station broadcasting under compulsion of § 315
would be liable under North Dakota law. On the contrary, the
District Court found that WDAY had a valid defense not only under §
315 of the Communications Act, but also within the provisions of
Chapter 14-02 of the North Dakota Revised Statutes of 1943. One
section of this chapter extends a privilege to
"one who stands in such relation to the person interested as to
afford a reasonable ground for supposing the motive for the
communication innocent."
And so, rather than being justification for a belief that, under
North Dakota law, WDAY would be liable for defamation, the District
Court's opinion
Page 360 U. S. 544
is clear evidence that at least one North Dakota court believed
that North Dakota law creates a privilege in favor of broadcasters
who are compelled by federal law to broadcast the defamatory
matter. In any event, the finding of unconstitutionality was by a
lower court, and not by the North Dakota Supreme Court, which is,
of course, the final interpreter of North Dakota law.
Even granting the Court's unsupported assumption about state
law, however, there is not that conflict between federal and state
law which justifies displacement of state power. Conflict between
the North Dakota libel law and § 315 might be attributed to the
fact that broadcasters, to avoid being held liable without fault,
will refrain from permitting any political candidate to buy time.
This result, the argument would conclude, is contrary to the
congressional command that stations operate in the "public
convenience, interest, or necessity." 48 Stat. 1083, as amended, 47
U.S.C. § 307. The Federal Communications Commission has determined
that, to fulfill this congressional command, stations must carry
some political broadcasts. But the state libel laws do not prohibit
them from airing speeches by political candidates. They merely make
such broadcasts potentially less profitable (or unprofitable),
since the station may have to compensate someone libeled during the
candidate's broadcast. The Federal Act was intended not to
establish a mode of supervising the income of broadcasters -- not
of protecting or limiting their profits -- but of insuring "a
rapid, efficient, nationwide, and worldwide wire and radio
communication service" for the benefit of "all the people of the
United States." 48 Stat. 1064, as amended, 47 U.S.C. § 151.
We have held that the Communications Act does not govern
relations between stations and third persons.
Radio Station
WOW, Inc. v. Johnson, 326 U. S. 120.
And
Page 360 U. S. 545
we have permitted a state court to award damages for breach of a
contract despite the fact that that breach was ordered by the FCC
as a condition for renewal of a license.
Regents of the
University System of Georgia v. Carroll, 338 U.
S. 586. If North Dakota were to rule that its libel law
applies to broadcasts made under compulsion of § 315, it would rule
that broadcasters are liable without fault. There is nothing in
such liability which conflicts with the necessity of broadcasting
imposed by § 315. If Congress came to fear impairment of its policy
on political broadcasts, Congress could act to alter the condition
which it has created by declining to legislate immunity. There may
be a burden, even unfairness, to the stations. But there may be
unfairness too, after all, in depriving a defamed individual of
recovery against the agency by which the defamatory communication
was magnified in its deleterious effect on his ability to earn a
livelihood. Adjustment of what is fair to all should be done by a
congressional change in the federal law, or, in the absence of such
enactment, by state law, through legislation or common law rulings
that the stations are partially or totally immune. Again,
allocation of risk of loss through defamation does not necessarily
imply the duty not to defame. The application of libel laws by
North Dakota to WDAY merely means that, since the harm could no
more have been avoided by the person defamed than by WDAY, in
balancing these conflicting undesirables, the risk of loss should
fall upon WDAY. Whether or not this would be a wise decision, it
would not conflict with § 315's compulsion to broadcast speeches by
opposing candidates for office.
In discussing in the Federalist Papers the respective areas of
federal and state constitutional powers, Hamilton wrote that state
powers would be superseded by federal authority if continued
authority in the States would be "absolutely and totally
contradictory and
repugnant."
Page 360 U. S. 546
"I use these terms," he wrote,
"to distinguish this . . . case from another which might appear
to resemble it, but which would, in fact, be essentially different;
I mean where the exercise of a concurrent jurisdiction might be
productive of occasional interferences in the policy of any branch
of administration, but would not imply any direct contradiction or
repugnancy in point of constitutional authority."
The Federalist, No. 32 at 200 (Van Doren ed. 1945). Since this
concurrent jurisdiction was "clearly admitted by the whole tenor"
of the Constitution in Hamilton's view,
"It is not . . . a mere possibility of inconvenience in the
exercise of powers, but an immediate constitutional repugnancy that
can by implication alienate and extinguish a preexisting right of
sovereignty."
Id. at 203.
Hamilton's suggestion, emanating from the contest of
constitutional creation, is disregarded in the approach taken by
the Court today on a precisely analogous, if not identical,
question, for there exists here not an explicit conflict, but, at
the very most, an interference with policy. Hamilton said, and this
Court has in the past begun from similar presuppositions, that
alienation of an area of state sovereignty is not to be implied
from occasional interferences by state law with federal policy.
Particularly should this rule be adhered to where the precise
nature of that federal policy on the issues involved rests on the
conjectures of the Court. When a state statute is assailed because
of alleged conflict with a federal law, the same considerations of
forbearance, the same regard for the lawmaking power of States,
should guide the judicial judgment as when this Court is asked to
declare a statute unconstitutional outright.
In this decision, a state law is invalidated by hypothesizing
congressional acquiescence and by supposing "conflicting" state law
which we cannot be certain exists and
Page 360 U. S. 547
which, if it does exist, is not incompatible with federal law
when judged by the considerations governing supersession in the
long course of our decisions, judged as a corpus.
I would reverse the North Dakota Supreme Court and remand the
case to it with instructions that § 315 has left to the States the
power to determine the nature and extent of the liability, if any,
of broadcasters to third persons.
[
Footnote 2/1]
48 Stat. 1088, as amended, 47 U.S.C. § 315(a).
[
Footnote 2/2]
See 98 Cong.Rec. 7401-7416.
[
Footnote 2/3]
The situation would not have appeared to Congress to be one in
which acquiescence was a meaningful concept. Immediately after
Port Huron, the decision was criticized as being without
statutory basis.
Houston Post Co. v. United
States, 79 F. Supp.
199. In discussing the
Port Huron decision before a
House Committee, FCC Chairman Coy insisted that that decision "only
represents the views of the Commission," and that he did not think
"his decision clarifies it as far as the industry is concerned."
Hearings before House Select Committee to Investigate the Federal
Communications Commission, 80th Cong., 2d Sess. 14. After
Port
Huron had been argued, but before the decision, a bill, S.
1333, 80th Cong., 1st Sess., § 15, granting immunity was reported
favorably by the Senate Committee on Interstate and Foreign
Commerce, S.Rep. No. 1567, 80th Cong., 2d Sess. 13, but was never
enacted. Every indication is persuasive that the question was
regarded as open and highly debatable.
[
Footnote 2/4]
Both before and after Port Huron, bills to permit censorship or
grant total or partial immunity have been introduced.
See
H.R. 9230, 74th Cong., 1st Sess.; H.R. 3038, 75th Cong., 1st Sess.;
S. 814, 78th Cong., 1st Sess., § 11; S. 1333, 80th Cong., 1st
Sess., § 15; H.R. 3595, 80th Cong., 1st Sess., § 15; H.R. 6949,
81st Cong., 2d Sess., § 202; H.R. 5470, 82d Cong., 1st Sess.; S.
2539, 82d Cong., 2d Sess.; H.R. 7062, 82d Cong., 2d Sess.; H.R.
7756, 82d Cong., 2d Sess.; S. 1208, 84th Cong., 1st Sess.; H.R.
4814, 84th Cong., 1st Sess.; S. 1437, 85th Cong., 1st Sess., § 401.
The congressional declination to act partakes not of satisfaction
with the
Port Huron decision, but of indecision about the
propriety and constitutionality of the alternative solutions to the
broadcasters' plea of unfairness.
[
Footnote 2/5]
See Developments in the Law of Defamation, 69
Harv.L.Rev. 875, 907-910; Remmers, Recent Legislative Trends in
Defamation by Radio, 64 Harv.L.Rev. 727.
[
Footnote 2/6]
Friedenthal and Medalie, The Impact of Federal Regulation on
Political Broadcasting: Section 315 of the Communications Act, 72
Harv.L.Rev. 445, 485.
[
Footnote 2/7]
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.