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May 5, 1971 Memo to Messrs. A. H. Galloway James S. Dowdell David S. Peoples William S. Smith Colin Stokes Chas. B. Wade, Jr. RLFairness Doctrine Case This morning I attended the argument of our fairness doctrine case in Richmond before the United States Court of Appeals for the Fourth Circuit. Abe Krash argued for us and in my opinion did an outstanding job. The panel consisted of Judges Winter, Butzner and Russell. Judge Winter is the senior judge of the three, is a graduate of John Hopkins College and of the Law School of the University of Maryland. He was Deputy Attorney General of Maryland and is said to be a cigarette smoker. He has the reputation for being a good judge, sometimes irritable, and generally prone to uphold government agency decisions. Judge Butzner is from Fredericksburg, Virginia, is a cigar smoker, has a good reputation as a judge and is also said to have a tendency to uphold government agency decisions. Judge Russell is a new judge; he is a former governor of South Carolina.

-2- Judge Winter was the first of the Judges to ask Mr. Krash a question. It seemed to me that at the outset he was distinctly hostile. He suggested that the FCC has the right to change its mind in different circumstances and that it took time for the information about the health hazards of smoking to become manifest. With what seemed to me to be some emotion he posited the question: "Suppose a broadcaster ran a message in opposition to the use of heroin? Would the broadcaster be required to give the opposite side?" Mr. Krash answered of course that there would be no requirement to give the other side, that the situation was quite different and that there was no controversy with respect to the use of heroin. I was somewhat astonished, however, that the question was asked. It seemed to me at the time a very bad omen, but as the argument progressed, and particularly during the argument of the attorney for the FCC, the panel of judges, including Judge Winter, appeared to be much more understanding of our viewpoint. In this connection, it is interesting that the practice of the Fourth Circuit judges is to read the briefs completely before the commencement of oral argument. Judge Russell then asked whether there was some dispute

-3- as to whether smoking is harmful. The import of his question was that there did not appear to be any real dissent fro~ the proposition that smoking is harmful. He pointed to finding No. i0 of the FCC, in which the FCC stated that there might be a right to reply to those anti-smoking messages which dealt with specific aspects of the smoking problem, such as a partlcular'statistical study or research development. Mr. Krash pointed out of course that there are many eminent scientists who disagree with the proposition that smoking has been proven to be harmful. He observed that the ultimate conclusion that smoking is harmful can only follow from an analysis of individual research studies and developments, and that the thrust of the anti-smoking messages was to assert the ultimate conclusion without discussion of the merits of individual studies. Judge Russell in a vein intended to be jocular stated that he had heard his friend Senator Ervin speak on the smoking and health question stating that smokers have fewer divorces than non-smokers. Judge Russell asked whether that was the kind of pro-smoking messages we had in mind. At this point Judge Butzner picked up the same tune and asked what kind of

-4- pro-smoking messages we contemplated. Specifically, he asked whether we intended to hold out that smoking is good for one's health. Mr. Krash retorted that the kind of messages we would deliver might ask whether the viewer has considered the fact that there are divergent points of view, or might point out that statistical studies cannot establish a cause and effect relationship, etc. Judge Butzner inquired whether such expressions of the tobacco point of view would run afoul of the ban on advertising, to which Mr. Krash replied in the negative, pointing out that the broadcast ban relates to brand advertising. Judge Butzner asked whether we had in mind paying an ad agency to develop a commercial expressing our point of view, and then asking the broadcaster for free time. Mr. Krash of course pointed out that this was correct. Judge Russell seemed to think that we were talking about anti-smoking messages describing specific statistical studies, as a result of which we would have a right under the FCC order (specifically under finding I0) to reply time. Mr. Krash pointed out that this was not so--that the messages used against us would continue to be messages dealing with the

-5- ultimate conclusion that smoking is harmful. Judge Russell inquired what would be a fair answer to a message to the effect that "smoking is hazardous to your health". Mr. Krash said that we dispute the claim, that we would not say that smoking is good for you, but we might say that it has not been established that smoking is harmful. He pointed out again that the messages against smoking would be tailored so as to avoid giving us the right to reply contemplated by finding I0 of the FCC order. The Government argued that the facts have changed and that in any event the FCC was simply leaving the whole matter to the discretion of the broadcaster. Judge Russell pointed out that Mr. Krash had argued that no broadcaster, given the realities of control by the FCC over license renewal, would give time for the antl-smoking forces. The Government replied that this would be acceptable, that there was no requirement that time be given to the antl-smoklng forces. Judge Butzner asked whether the tobacco interests could buy time. The Government counsel answered that he was confident that there would be no prohibition against this. Judge Winter then expressed the view that the tobacco interests

-6- would never get any time as a practical matter unless they purchased it. It began to appear that the panel of judges was challenging the Government's counsel as strongly or more strongly than they had challenged Mr. Krash. At one point the Government counsel stated that if new studies were to come out suggesting that smoking is not hazardous to health the FCC could reopen the issue and "might" change its position. Judge Winter inquired as to the situation with respect to liquor advertising and the Government counsel explained that there was no legal prohibition against liquor advertising on the airwaves, because the industry had stayed off the air under pressure of Congressional c~,~,ittees. He stated that the cigarette controversy (according to my notes he used the word "controversy") is unique, and that there has been no invocation of the fairness doctrine as to liquor. He said, however, that some environmental interests were now seeking free time to reply to certain commercials for gasoline allegedly claiming falsely that use of the particular brand.is helpful to the environment.

-7- Judge Winter inquired whether the FCC was still contending that the order of the FCC was not ripe for review. He asked whether, if the Tobacco Institute made application to a broadcaster to run its pro-smoking message and was turned down, the situation would be any different from the point of view of an appeal than it was now. The Government counsel urged that there was an advantage to waiting until such a situation developed so that the particular message offered by the Institute and the reason for turning it down would be before the court. He stated, however, that he was not pressing his argument that the order was not ready for review beyond the arguments set forth in his brief. Judge Butzner inquired whether if the Tobacco Institute had an unique message to counter an antl-smoking message it could go to the FCC for assistance in having such message put on the air. The Government counsel answered that the Institute would be free to go to the FCC. Judge Winter in~nediately interjected that it would be unrealistic to suppose that the Institute could get any relief. In reply Mr. Krash addressed h~mself to the question of the purchase of time by the tobacco forces. He pointed out

-8- that the broadcaster is not a common carrier and therefore has no obligation to sell time. Moreover if he does sell time to the tobacco interests then under the fairness doctrine he would be obligated to give time free to the other side. At this point the Judges inquired as to whether the fairness doctrine required the same quality and quantity of time for both sides of a controversy and Mr. Krash explained to them the requirements under the fairness doctrine. He pointed out that since the broadcaster would be required to give free time to the anti-smoking forces should time be sold to the tobacco interests, there was an obvious and practically insurmountable hurdle to the sale of time to tobacco interests. The initial skeptical reception given to our arguments by the court seems to me and to Mr. Krash to reflect the extreme extent to which the proposition has been generally accepted that smoking causes human disease. This is underscored by the fact that the Fourth Circuit is a circuit which should be relatively receptive to our arguments, because its reputation is traditionally that of a conservative circuit and because of its geographical jurisdiction. (I must concede, however, that the particular panel we drew is said to be one of the less conservative

-9- panels among the judges of the Fourth Circuit.) So long as the tribunals which we are addressing are persuaded and conditioned by what they read and hear outside the courtroom that smoking causes illness, attempts to obtain protection for tobacco interests become extremely difficult notwithstanding technical and legal arguments in their favor. This is because the end result which the tribunal naturally seeks is the protection of the public rather than of the industry and it is no effort today for courts to rationalize their way to whatever the desired outcome may be. Thus, even the obvious railroading job done in this case by th~ FCC, a disgracefully political animal, did not seem to arouse the ire or instinct for fairness of the panel. Neither Mr. Krash nor I can attempt a reliable prediction of the outcome. I am persuaded, however, that his advocacy was largely responsible for at least partially overcoming an initial prejudice against our position on the part of the panel. H. C. R.