'CHILLING EFFECT' CITED IN FCC DECISION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000201330003-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 22, 2016
• Document Release Date: February 10, 2012
• Sequence Number: 3
• Publication Date: July 16, 1985
• Content Type: OPEN SOURCE

Declassified and Approved For Release 2012/02/10: CIA-RDP90-00965R000201330003-3
LOS ANGELES TIMES (CA)
16 July 1985
`CHFLLING EFFECT' CITED IN
By DAVID CROOK,
Times Staff writer
Government agencies have
been granted a potentially
powerful weapon to chal-
lenge what they believe is unfair or
distorted broadcast news coverage,
leading First Amendment experts
said Monday in discussing a new
decision by the Federal Communi-
cations Commission.
In a decision announced Friday,
the FCC said that the government
may legally contest the fairness of
news broadcasts and, by extension,
challenge broadcasters' rights to
hold radio and TV station licenses. _
The ruling was made even
though the FCC denied a contro-
versial complaint filed by the Cen-
tral Intelligence Agency against
ABC News and even though com-
mission members and staffers con-
cluded that ABC engaged in poor
journalistic practices.
"The bringing of that suit by the
CIA was an improper thing to do,"
said Alan Reitman, associate exec-
utive director of the American Civil
Liberties Union in a telephone
interview. "If this (the fairness
doctrine) is held to apply to a
government agency, then we are
concerned about the chilling effect
on investigative reporting."
Reitman said that the ACLU will
"consider moving into the federal
courts" to challenge the FCC's
decision. In reaction to the CIA's
complaint, the ACLU had sought a
specific ruling barring fairness
doctrine challenges by federal
agencies.
Bob Gurss, an attorney with the
Washington-based public-interest
law firm Media Access Project, said
Monday that the ruling is "contrary
to First Amendment principles (in
allowing) a government agency to
file a complaint with another agen-
cy of the government."
Gurss also argued that the FCC's
ruling left open the way for other
government agencies to challenge
broadcast coverage that they may
find distorted or unfair. "You will
have governments-the Attorney
General, for instance-filing com-
plaints and scaring broadcasters,"
Gurss said.
Steve Bookshester, attorney for
the National Assn. of Broadcasters,
said the FCC decision is "clearly
something that's troubling." His
association, he noted, had joined a
number of professional groups that
had filed briefs in the fnA -ABC
case arguing that the?~ should
turn down the CIA's complaint on
the basis that federal agencies
should not be allowed to bring
cases to the commission.
"As a matter of law and as a
i matter of policy, we thought it was
wrong for the commission to con-
sider that complaint," Bookshester
said.
In turning down the CIA's com-
plaint but affirming its right to
complain, the FCC established a
broad expansion of government
power-an unusual action for an
FCC that has been noted for its
reluctance to exercise any but the
most minimal regulatory power
over broadcasters. Before the CIA's
complaint, first filed last Novem-
ber, the issue of a government
agency's standing had never come
before the FCC.
Stanley Sporkin, CIA general
counsel, said Monday that the
agency was "obviously disappoint-
ed but pleased that we've been
vindicated on the issue of whether
we had standing (to bring an action
before the FCC)." Sporkin said the
agency has not yet decided wheth-
er it will appeal the FCC ruling and
would not make a decision until the
commission hands down its written
ruling-late this week, at the earli-
est.
"There's no such thing as win-
ning or losing in these things,"
Sporkin said. "It is clear that a
terribly erroneous news story was
broadcast and that there is no
recourse to having a network take
remedial action."
In its complaint, the CIA charged
that ABC violated the FCC's fair-
ness doctrine and its rules against
deliberate news distortion in a
FCC DECISION
two-part "World News Tonight"
broadcast last fall. Despite an over-
vAelming amount of contrary evi-
dence, ABC claimed to have proved
that the CIA engaged in an array of
illegal activities through a now-de-
funct Hawaii investment firm. In-
chided in ABC's broadcasts was an
unsubstantiated claim-later re-
tracted-that. the CIA plotted to
murder investment counselor Ron-
ald Ray Rewald, whom ABC iden-
tified as a covert CIA agent.
The CIA charged that ABC had
created "artificial news" and creat-
ed its story "out of thin air." The
intelligence agency asked the FCC
to investigate how ABC managed
to broadcast a story with so little
apparent basis in fact. ABC has
continued to stand by most of its
reporting in the story. The network
insists that the CIA's refusal to
cooperate with reporters allowed
them to broadcast unsubstantiated
and uncorroborated charges.
The FCC, however, never ques-
tioned ABC about the story and
ruled that the CIA failed to estab-
lish a prima facie case. The FCC
said the CIA failed to provide
so-called "extrinsic" evidence that
officials of the network deliberate-
ly set out to falsify the broadcasts.
"What might be described as
'news negligence' is different from
what the commission looks at as
extrinsic fraud," said Dann Bren-
ner, senior adviser to FCC Chair-
man Mark Fowler. "If you could
prove that a news director said, 'I
want this result,' I think that would
evidence extrinsic fraud. If it was
an out-and-out lie, intentionally
done, the commission would look at
something like that."
In a statement, Chairman Fowler
insisted that the fairness doctrine
clearly grants government agen-
cies the right to challenge broadca-
sters before the commission:
"If the Federal Reserve Board or
the State of Hawaii had been the
complainant, the question of stand-
ing would probably have gone
unnoticed. . . . I doubt anyone
would find it inappropriate."
Coninued
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 Declassified and Approved For Release 2012/02/10: CIA-RDP90-00965R000201330003-3
cz.
Fowler also used the opportunity
of the CIA-ABC case to argue that
the fairness doctrine itself-which
requires broadcasters to air all
sides of controversial issues of
public importance-is at the heart
of the First Amendment problem
created by the commission's ruling.
The FCC decision's apparent
"chilling affect" on broadcasters'
rights "has iso cause in the fairness
doctrine, not the CIA," Fowler said.
` Although the CIA failed to prove
that ABC deliberately distorted the
Nets of the Rewald case, Commis
stoner James Quello said Monday
that the network engaged in "jour-
nalistic malfeasance" and "shoddy
journalism."
"The networks-in this case
ABC-are very lucky that this
commission doesn't believe in sub-
stituting its editorial judgment for
broadcasters'," Quello said.
Ronald Ray Rewald, left, cited by ABC as a covert CIA agent, and
Federal Communications Commission Chairman Mark Fowler.
Declassified and Approved For Release 2012/02/10: CIA-RDP90-00965R000201330003-3