intent to distort. The Commission was not unreasonable,
however, in finding that Safer's phrase "some Ukrainians"
and his other references to extremist groups effectively limit
ed the scope of Bleich's comments to "a segment of the
Ukrainian population." Id.
CONTENTS:
Title Page
I. Background
II. News Distortion
A. Evidentiary standard
B. Licensee's policy on distortion
C. Nature of particular evidence
1. Extrinsic evidence
(a) Outtakes of the interview with Rabbi Bleich
(b) The viewer letters
(c) The refusal to consult Professor Luciuk
2. Evidence of factual inaccuracies
D. Misrepresentation
III. Conclusion
(b) The viewer letters
The Commission held that the letters CBS received from
viewers were extrinsic evidence because they were "external
to the program." Id. at 8148. In the Commission's view,
however, the letters were not probative because the letter
writers were not
"insiders," that is, employees or members of manage
ment of CBS. Nor are they persons with direct personal
knowledge of intent to falsify.... And letters sent by
viewers subsequent to the broadcast [are] evidence clear
ly incapable of going to intent, because intent is a state of
mind accompanying an act, not following it.
Id.
The Commission's reasoning here is flawed in two respects.
First, a person need not have "direct" personal knowledge of
intent in order to have relevant information that constitutes
circumstantial evidence about such intent. See Crawford-El
v. Britton, 93 F.3d 813, 818 (1996) ("[T]he distinction between
direct and circumstantial evidence has no direct correlation
with the strength of the plaintiff's case"); CPBF v. FCC, 752
F.2d at 679 ("Intent [may] be inferred from the subsidiary
fact of [a broadcaster's] statements to third parties"). Sec
ond, evidence that sheds light upon one's intent is relevant
whether it was prepared before or after the incident under
investigation; consider, for example, a letter written after but
recounting words or actions before an event.
Upon remand, therefore, the Commission may wish to
consider separately two types of letters. First, there may be
letters that convey direct information about the producers'
state of mind while the show was in production. For exam
ple, Cardinal Lubachivsky charged that the producers misled
him as to the nature of the show. Second, there are letters
that point out factual inaccuracies in the show. For example,
Rabbi Lincoln, a viewer, wrote in about the mistranslation of
"zhyd." Although letters of this type may not have indepen
dent significance, they may yet be probative in determining
whether an error was obvious or egregious, and if so whether
it bespeaks an intent to distort the facts. See Part II.C.2
below.
CONTENTS:
Title Page
I. Background
II. News Distortion
A. Evidentiary standard
B. Licensee's policy on distortion
C. Nature of particular evidence
1. Extrinsic evidence
(a) Outtakes of the interview with Rabbi Bleich
(b) The viewer letters
(c) The refusal to consult Professor Luciuk
2. Evidence of factual inaccuracies
D. Misrepresentation
III. Conclusion
(c) The refusal to consult Professor Luciuk
Serafyn asserted that CBS's refusal to consult Professor
Luciuk demonstrated its intent to distort the news because
only someone with no intention to broadcast the truth would
refuse to use the services of an expert. The Commission
found that evidence of the broadcaster's decision was extrin
sic to the program but that it "falls far short of demonstrating
intent to distort the ... program" because the "[d]etermina
tion[ ] as to which experts to utilize is a decision solely within
the province of the broadcaster." WGPR, 10 FCC Rcd at
8148. Once again, the agency's reasoning is too loose.
Serafyn raises no question about the broadcaster's discretion
to decide whom, if anyone, to employ; it is only because the
broadcaster has such discretion that its ultimate decision may
be probative on the issue of intent. Before the Commission
may reject this evidence, therefore, it must explain why
CBS's decision to employ one expert over another--or not to
employ one at all--is not probative on the issue of its intent
to distort.
CONTENTS:
Title Page
I. Background
II. News Distortion
A. Evidentiary standard
B. Licensee's policy on distortion
C. Nature of particular evidence
1. Extrinsic evidence
(a) Outtakes of the interview with Rabbi Bleich
(b) The viewer letters
(c) The refusal to consult Professor Luciuk
2. Evidence of factual inaccuracies
D. Misrepresentation
III. Conclusion
2. Evidence of factual inaccuracies
In describing what evidence it would accept to substantiate
Serafyn's claim of news distortion, the Commission stated
that it has "long ruled that it will not attempt to judge the
accuracy of broadcast news reports or to determine whether a
reporter should have included additional facts." WGPR, 10
FCC Rcd at 8147. In "balancing First Amendment and
public interest concerns," it explained, the Commission
will not attempt to draw inferences of distortion from the
content of a broadcast, but it will investigate where
allegations of news distortion are supported by "substan
