On Petition to Review an Order of the Federal Communications Commission.
Hastings, Senior Circuit Judge, Cummings and Stevens, Circuit Judges.
This petition asks us to set aside an order of the Federal Communications Commission denying the complaint of petitioners that American Broadcasting Companies, Inc. ("ABC") violated the Federal Communications Commission's fairness doctrine and personal attack rule by refusing petitioners air-time to respond to an August 10, 1972, broadcast of the Dick Cavett Show containing Polish jokes.
During the program in question, comedian Bob Einstein, masquerading as Gil Drabowski, president of an imaginary Polish Anti-Defamation League, told four "Polish jokes," all denigrating the intellectual or motor skills or personal hygiene standards of Poles. The show was hosted by comedian Steve Allen. The setting was an interview of Einstein by Allen regarding a fictitious lawsuit against the three television networks brought by Drabowski on behalf of his organization, demanding a public apology for Polish jokes told on the networks and endeavoring to make sure that there would be no more Polish jokes broadcast by the networks. Thereafter, in jest, Drabowski gave the four objectionable jokes assailed by petitioners, as examples of those shown by the networks for which his organization thought an apology was required.*fn1 As a result of a protest by petitioners and others, on the following evening, Steve Allen explained that Einstein's comedy sketch involving Polish jokes was intended to amuse "just as the 'All in the Family' show, which is the No. 1 show in the country, intends to amuse when it does jokes about the Polish, Italians, and every group in the world." Allen then stated that he, Bob Einstein and ABC apologized to those who were offended. Although Allen indicated that he had invited a spokesman for a protesting Polish American organization to "speak his piece" during the August 11th show, no such spokesman appeared.
On October 4, 1972, petitioners wrote ABC requesting "equal time" to reply "under Federal Communications Commission Regulations" to the August 10th telecast. ABC replied as follows on October 31st:
"We are sorry that anything said or done by either Steve Allen or Bob Einstein offended you. The following evening Steve Allen apologized on behalf of himself, Mr. Einstein and the ABC Television Network.
"No harm or malice towards Polish-Americans was intended and we are most sincerely regretful that you were hurt or offended.
"For your information, 'equal time' under Section 315 of the Communications Act is limited in scope to candidates for public office and, accordingly, we respectfully decline your 'equal time' request."
Eight months thereafter, petitioners filed a complaint with the Commission, requesting it to rule under the personal attack rule of the fairness doctrine and under the fairness doctrine itself that petitioners were entitled to equal time or a reasonable opportunity to respond free of charge on the ABC network "to the personal attacks on the character, intelligence, hygiene or appearance of members of the Polish American community, an identifiable group," on the August 10th telecast. The complaint contended that demeaning and defamatory attacks in the guise of ethnic humor constituted a controversial issue of public importance "because such programming represents a single warped and negative point of view which has an enormous influence on the viewing audience."
On September 26, 1973, the Commission's Broadcast Bureau denied petitioners' complaint, noting at the outset that Section 326 of the Federal Communications Act (47 U.S.C. § 326) prohibits the Commission from censoring broadcast material.*fn2 Under the fairness doctrine, the Broadcast Bureau acknowledged that if a station presents one side of a controversial issue of public importance, it is required to afford reasonable opportunity for the presentation of contrasting views. The Bureau's ruling further stated:
"It is the responsibility of the broadcast licensee to determine whether a controversial issue of public importance has been presented and, if so, how best to present contrasting views on the issue. The Commission will review complaints to determine whether the licensee can be said to have acted reasonably and in good faith.
"In support of your contention that the broadcast of Polish jokes constitutes a controversial issue of public importance, you state that the jokes 'belittle a large segment of the population' by perpetuating a 'dumb Polack image.' However, you have not shown that there is any controversy in this country concerning the intelligence or other qualities of Polish Americans. [Footnote omitted.] Accordingly, we are unable to find from the evidence presently before us that ABC was unreasonable in concluding that the broadcast of the jokes and attendant remarks did not constitute the discussion of a controversy of public importance.
"Since we have determined that the network was not unreasonable in concluding that no controversial issue of public importance was involved, the broadcast of the Polish jokes could not constitute, under the Commission's rules, a personal attack. In order for the personal attack rule to be applicable, the attack must occur during the discussion of a controversial issue of public importance. Section 73.123(a) of the Commission's Rules and Regulations. Even had a controversial issue of public importance been involved here, it does not appear that these jokes and attendant remarks could have constituted a personal attack under the Commission's rules. The statement of a particular view, however strongly or forcefully made, does not necessarily constitute a personal attack. The Port of New York Authority, 25 FCC 2d 417 (1970). To qualify under the ...