The Washington Post, August 21, 1970, at A-22,"col. 4:

Air Supremacy

The Washington Post, August 26, 1970, at A-14, col. 4:

@1970 HERBLOCK

Copyright 1970 by Herblock in The Washington Post

a period of seven months triggered the fairness doctrine, but that the networks and affiliates failed to present views contrary to the President's sufficiently often and in comparable format.30

The Republican National Committee [RNC] has alleged that CBS triggered the fairness doctrine when it broadcast a half-hour statement on July 7, 1970, by Lawrence F. O'Brien, on behalf of the Democratic National Committee [DNC]. RNC argues that it is entitled to reply time, because although CBS gave Mr. O'Brien time to respond to the President's Vietnam addresses, he in fact spent only a few minutes on that topic and devoted his remaining time to controversial issues not touched by the President.

Finally, Eleven United States Senators have asked for "equal time without cost" to reply to a 30-minute program presented on NBC by a number of Senators who were members of the Amendment to End the War Committee.

II

During the seven month period from November 1969 to early June 1970, the President delivered five major speeches on the war in Southeast Asia on November 3, 1969; December 15, 1969; April 20, 1970; April 30, 1970; and June 3, 1970. These speeches were given substantial prior publicity in newspapers and over television. With one exception, all were delivered during the "primest" of prime-time hours between 9:00 p.m. and 10:00 p.m. The shortest was 14 minutes; the longest was 41 minutes. Each speech was carried simultaneously by the three national networks. Each speech was carried live. Each speech was broadcast completely intact, without interruptions, cuts, commercial insertions, or delays. There were no questions asked of the President, either before, during, or after his addresses. In every case, the President himself initiated the speeches, chose the day and hour for those speeches (apparently with an eye toward the largest prime-time audiences), and evidenced his willingness to accept live television coverage. The speeches were delivered in settings conducive to live television coverage designed to present the most favorable possible image of the President and his views. And the speeches were delivered in "series"-arranged in a pattern of periodic installments or statements, each bringing the country "up to date" on the status of the administration's policies. Often the President made references to earlier speeches, reminding the audience of his prior positions and comparing them with the war's progress.

It is important to emphasize the President's powers in controlling his use of television in these cases. Not only does he control format and content, he is allowed to eliminate competition by simultaneous carriage on the three networks as well as many other stations. In addition he is able to control when his "psuedo-event" will occur-just prior to an invasion, timed with the taking of public opinion polls, or coinciding

30 The Amendment to End the War Committee and Fourteen United States Senators also raise the separate issue of "access for consideration" [i.e., payment], stating that the networks have refused to permit them to purchase time to present views opposing the President's. My disagreement with the majority position on this issue is fully detailed in Democratic National Committee, FCC 70-861, August 5, 1970, and I will not repeat those considerations here. See also Business Executives Move for Vietnam Peace (WTOP-AM), FCC 70-860, August 5. 1970, dealing with the precise problem of "access for consideration" with respect to short one-minute "commercial-type" announcements.

with the release of "good" or "bad" news. The power of a President to "go to the people" via television is a power granted to a chief executive which is perhaps unmatched in any other democratic country which accepts the principle of limited and diffused governmental power.

III

The first three complainants, Committee, Fourteen Senators, and Business Executives, argue that the networks and their affiliates have failed to devote significant time and attention to views opposing the President's. I agree for the following three reasons.

The President is our most prominent national leader. In terms of power and prestige he occupies a unique position in the government of this country. The fact that the Executive is personified in the person of the President, whereas the "Legislative Branch" is diffused in 535 Senators and Congressmen, gives the President a special advantage in a television age. That he also combines the roles of King, Prime Minister, and Celebrity in Chief gives his TV appearances an added influence.

The unusually strong impact of Presidential messages is increased when, as here, those messages are delivered in a series, in prime-time, simultaneously on all three networks, without interruptions by commercials or questions, and with the dramatic urgency that a "live" presentation coupled with vigorous advance publicity can create. It is to be noted that these advantages can backfire. The President's November 3, 1969 speech on Vietnam was heralded to the news media as possessing great originality, news value and importance by White House spokesmen. When the news media generally found little in it that was new, and allowed some rebuttal and criticism of the President's views to appear, Vice-President Agnew's Des Moines speech followed, and the reign of repression and response we have witnessed during the past few months which I have detailed in speeches and elsewhere. See my "Vice President Agnew Statement" (November 17, 1969); "Subpoenas, Outtakes, and Freedom of the Press" (February 12, 1970); "The Talkin' Blues" (March 2, 1970); "Public Channels and Private Censors" (The Nation, March 23, 1970); Chicago Journalism Review (May 1970, pp. 7-10); "The Power of the People and the Obligation to Dissent" (May 8, 1970).

IV

I concur fully in the majority's resolution of the petition presented by Senator Dole and ten other Senators. Paid political speech should not be deemed to generate fairness response requirements where broadcasters are already meeting overall fairness requirements as the majority finds the networks have done in this instance. I would hold that the 11 Senators should be able to purchase time from NBC if they so desire. (See Business Executives, FCC 70-860; Democratic National Committee, FCC 70–861). I would also distinguish this situation from those circumstances where repeated commercials paid for by sponsors would be deemed to raise fairness obligations leading to free time. (See Friends of the Earth FCC 70-862).

V

My concurrence in the majority action on the petition of the Republican National Committee is extremely reluctant. As the majority points out in paragraph 54, something like the CBS program "Loyal Opposition" was clearly necessary to redress the balance between the major parties, as well as the imbalance between access by the President and the Congress. For the networks to make no response to the issues that have been raised in these matters before the Commission would, in my view, call for even more drastic Commission action. For CBS and the other networks now to cut back their efforts to achieve fairness in the area of political speech would be disastrous.

Mr. O'Brien's DNC broadcast was intended as a balance to the ability of the President to use television in addresses and news conferencesas CBS recognized in titling the program the "Loyal Opposition." It was an effort to give access to spokesmen who could play a role similar to that of a "shadow government" in a parliamentary system.

The Republican National Committee, by contrast, does not hold the same position in comparison with the Democratic National Committee as the DNC does to a Republican President. President Nixon speaks as Party Leader as well as President, and there is no suggestion that the views of the RNC are in any sense at variance with those of the President. It may very well be that the RNC ought to be given time in its own right from time to time. But it does not follow that the RNC must be given time to reply to the DNC every time the DNC is given time to reply to the Republican President.

In this instance, however, I am prepared to concur in the majority's decision, given the content of the DNC program. Certainly there is nothing in the majority's opinion to suggest that the RNC is entitled to anything more than a five minute reply under these circumstances. I will want to give this matter further consideration in light of future developments.

VI

I concur in the majority's holding that the public interest requires that time be made available "by an appropriate spokesman for the contrasting viewpoint to that of the Administration on the Indochina War," as argued by the BEM petition, the Committee for Fairness petition, and the petition of the 14 Senators.

I do not agree, however, with the majority's reliance on the supposed "uniqueness" of the series of five addresses by President Nixon. Whenever a President speaks one could almost say that, by definition, he has spoken on what the Fairness Doctrine characterizes as a "controversial issue of public importance"-if it wasn't such an issue before he expresses his views, it is after he speaks. Furthermore, by definition, he almost always expresses only a single point of view, or side of the argument, regarding that issue. Therefore, I believe that the nature of our political system requires that every broadcast of an uninterrupted Presidential address gives rise to an obligation to present appropriate contrasting viewpoints.

It will often be the case that the "appropriate" spokesman to address the views of the President will come from the Congress. We must

not forget that when the President addresses the nation, he inevitably speaks as an advocate and as the head of his Party-whether Democratic or Republican.

It is almost impossible to separate the various roles of the Presidentelected representative of all the people, chief national spokesman, chief diplomat, commander-in-chief, ceremonial head of the government, chief legislator, chief executive officer, and party leader. (Neustadt, "Presidential Government" in the International Encyclopedia of the Social Sciences, v. 12, p. 451 (1968).) This being the case, I think it is imperative that leaders of opposing parties, and opposing viewpoints in Congress, be given the opportunity to rebut his unilateral statements. This rebuttal is necessary to present different views on issues, to represent opposing political parties, and to the very perpetuation of a system of co-equal branches of national government in a television age. The problem of finding and presenting spokesmen who can realistically approach the President's impact and prestige is difficult if not impossible. We have no "shadow prime minister" or "shadow cabinet” as in some parliamentary systems where there are national figures who the public knows stand an election away from being head of the government. The President has an inherent advantage because of his office which is further enhanced by the absence of the "head of the loyal opposition" as a spokesman. This circumstance suggests that more response to the President is needed, not less, in order to maintain a balance. This imbalance on television may also ultimately result in opposition party candidates for the Presidency being selected a year or two earlier than at present, in order to personify the opposition for the television audience, i.e., the electorate.

VII

A second important consideration supporting my conclusion is that the considerations before this Commission touch the vital "separation of powers" upon which our government is based. The first three Articles of the United States Constitution divide the government into three branches: the legislative, the executive, and the judicial. The first enacts the laws; the second administers them; and the third interprets and enforces them. Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). This principle of separation of powers is fundamental to our scheme of constitutional government. See, e.g., National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Sharp, The Classical American Doctrine of "Separation of Powers," 2 U. Ĉhi. L. Rev. 385 (1935).

The effectiveness of each branch of government, and in particular the legislative and executive branches, depends on the extent to which they can communicate with the electorate-both to solicit views and opinions on the proper conduct of governmental business, and to explain and justify actions of government to the people. If one branch of the government increasingly gains effective access to the media of communications, while the other branch is systematically excluded, then the power balance, presumably designed to safeguard our citizenry from the tyrannies and abuses of excessive power, will be upset.