said to have participated in, directed, or at least acquiesced in
a pattern of news distortion. The Commission stated its
policy about 30 years ago as follows:
[W]e do not intend to defer action on license renewals
because of the pendency of complaints of [news distor
tion]--unless the extrinsic evidence of possible deliberate
distortion or staging of the news which is brought to our
attention, involves the licensee, including its principals,
top management, or news management.... [I]f the
allegations of staging ... simply involve news employees
of the station, we will, in appropriate cases ... inquire
into the matter, but unless our investigation reveals
involvement of the licensee or its management there will
be no hazard to the station's licensed status....
.... Rather, the matter should be referred to the
licensee for its own investigation and appropriate han
dling.
.... Rigging or slanting the news is a most heinous
act against the public interest .... [b]ut in this democra
cy, no Government agency can authenticate the news, or
should try to do so.
Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a
footnote the Commission added:
[W]e stress that the licensee must have a policy of
requiring honesty of its news staff and must take reason
able precautions to see that news is fairly handled.
An allegation of distortion is "substantial" when it meets
two conditions, as we summarized in an earlier case.
[F]irst, ... the distortion ... [must] be deliberately
intended to slant or mislead. It is not enough to dispute
the accuracy of a news report ... or to question the
legitimate editorial decisions of the broadcaster....
The allegation of deliberate distortion must be supported
by "extrinsic evidence," that is, evidence other than the
broadcast itself, such as written or oral instructions from
station management, outtakes, or evidence of bribery.
Second, the distortion must involve a significant event
and not merely a minor or incidental aspect of the news
report.... [T]he Commission tolerates ... practices
[such as staging and distortion] unless they "affect[ ] the
basic accuracy of the events reported."
Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming
Commission's holding that CBS's "60 Minutes" had not dis
torted news by staging insurance investigator's interrogation
of fraudulent claimant; because she "actually did participate
in the fraud and did confess, even if not in precisely the
manner portrayed, the 'basic accuracy of the events reported'
... has not been distorted").
As we noted in Galloway, the Commission's policy makes
its investigation of an allegation of news distortion "extremely
limited [in] scope. But within the constraints of the Constitu
tion, Congress and the Commission may set the scope of
broadcast regulation; it is not the role of this court to
question the wisdom of their policy choices." Id. at 21.
In 1994 CBS produced and broadcast a controversial seg
ment of "60 Minutes" entitled "The Ugly Face of Freedom,"
about modern Ukraine. The broadcast angered some viewers
who believed that many elements of the program had been
designed to give the impression that all Ukrainians harbor a
strongly negative attitude toward Jews. For example, inter
viewer Morley Safer suggested that Ukrainians were "genet
ically anti-Semitic" and "uneducated peasants, deeply super
stitious." Also, soundbites from an interview with the Chief
Rabbi of Lviv, Yaakov Bleich, gave viewers the impression
that he believes all Ukrainians are anti-Semites who want all
Jews to leave Ukraine. In addition, CBS overlaid the sound
of marching boots on a film clip of Ukrainian Boy Scouts
walking to church and introduced it in such a way as to give
viewers the impression that they were seeing "a neo-Nazi,
Hitler Youth-like movement." The narrator also stated that
the Ukrainian Galicia Division had helped in the roundup and
execution of Jews from Lviv in 1941, though this Division was
not in fact even formed until 1943 and therefore could not
possibly have participated in the deed. Perhaps most egre
giously, when Ukrainian speakers used the term "zhyd,"
which means simply "Jew," they were translated as having
said "kike," which is a derogatory term.
After the broadcast interviewees and members of the
Ukrainian-American community deluged CBS with letters.
In his letter Rabbi Bleich stated "unequivocally" that his
"words were quoted out of the context that they were said"
and that "the CBS broadcast was unbalanced" and "did not
convey the true state of affairs in Ukraine." Cardinal Luba
chivsky, the head of the Ukrainian Greek Catholic Church,
who had also been interviewed, both sent a letter to CBS and
released a statement to the press. In the latter he stated,
"[M]y office was misled as to the actual thrust of the report.
Mr. Fager [the producer] presented the piece as one about
'post-communist Ukraine.' ... I can only deduce that the
goal of the report was to present all Western Ukrainians as
rabid anti-semites." Many other viewers pointed out histori
