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In addition to holding that Serafyn presented insufficient
evidence to "demonstrate" that CBS had intentionally distort
ed the "60 Minutes" episode about Ukraine, the Commission's
denial of Serafyn's petition also rested upon the alternative
ground that he had not alleged a general pattern of distortion
extending beyond that one episode. Upon appeal Serafyn
argues--and the Commission does not dispute--that he did
present evidence regarding CBS's general policy about distor
tion, namely the comments of Wallace and Hewitt quoted
above, and that the Commission failed to discuss or even to
mention this evidence. Both Wallace's comment ("you don't
like to baldly lie, but I have") and Hewitt's ("it's the small
crime vs. the greater good") are, to say the least, suggestive.
Furthermore, both Wallace (as the most senior reporter and
commentator for "60 Minutes") and Hewitt (as the producer
of the series) are likely members of the "news management"
whose decisions can fairly be attributed to the licensee.
Hunger in America, 20 FCC 2d at 150. The Commission's
failure to discuss Serafyn's allegation relating to CBS's policy
on veracity is therefore troubling. Indeed, because of the
importance the Commission placed upon the supposed lack of
such evidence, its presence in the record casts the Commis
simon alternative ground into doubt. The Commission must
consider these allegations upon remand.
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. Nature of particular evidence
The Commission gave illogical or incomplete reasons for
finding non-probative two of the three pieces of evidence it
determined were "extrinsic." It also failed to discuss individ
ually certain alleged factual inaccuracies that Serafyn brought
to its attention. Before discussing the Commission's opinion
in detail, however, we set out a brief excerpt from the
transcript of the broadcast.
MORLEY SAFER, co-host: ... [T]he west [of Ukraine],
where we go tonight, is on a binge of ethnic national
ism. "Ukraine for the Ukrainians" can have a fright
ening ring to those not ethnically correct, especially in
a nation that barely acknowledges its part in Hitler's
final solution.
... [J]ust about every day of the week, the sounds of
freedom can be heard, men and women giving voice to
their particular view of how the new independent
Ukraine should be governed. They disagree about
plenty, but do have two things in common: their old
enemy, Russian communism, and their old, old enemy,
the Jews.
Unidentified Man # 1: (Through Translator) We Ukrain
ians not have to rely on American [sic] and kikes.
SAFER: Yacoov [sic] Bleich left the United States five
years ago to take over as the chief rabbi for the
Ukraine.
Rabbi YACOOV [sic] BLEICH: There is, obviously, a lot
of hatred in these people that are--that are expound
ing these things and saying, you know--obviously if
someone, you know, screams, "Let's drown the Rus
sians in Jewish blood," there isn't much love lost there.
...
SAFER: ... In western Ukraine at least, Hitler's dream
had been realized. It was juden-frei, free of Jews. In
the 50 years since, Jews have drifted in from other
parts of the old Soviet Union, about 7,000 now in
[Lviv]. For some Ukrainians, that's 7,000 too many.
Rabbi BLEICH: Yeah. Well, that's not a secret.
They're saying that they want the Jews out.
...
SAFER: The western Ukraine is fertile ground for
hatred. Independence only underlined its backward
ness: uneducated peasants, deeply superstitious, in
possession of this bizarre anomaly: nuclear weap
ons.... Western Ukraine also has a long, dark history
of blaming its poverty, its troubles, on others.
[Unidentified] Man # 2: (Through Translator) Kikes
have better chances here than even the original popu
lation.
SAFER: Than the Ukrainians.
Man # 2: (Through Translator) Yes.
...
SAFER: The church and government of Ukraine have
tried to ease people's fears, suggesting that things are
not as serious as they might appear; that Ukrainians,
despite the allegations, are not genetically anti-Semitic.
But to a Jew living here ... such statements are little
comfort....
Transcript, Joint Appendix at 92-96.
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
1. Extrinsic evidence
We discuss first the Commission's analysis of the three
pieces of evidence it found were "extrinsic." The Commission
has the responsibility to determine the weight of such evi
dence. The reasons it gives for doing so, however, must be
reasonable and not unfounded.
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
(a) Outtakes of the interview with Rabbi Bleich
The outtakes show that all of Rabbi Bleich's quoted com
ments were made in response to questions about radical
nationalists. Serafyn argued to the Commission that CBS
had misrepresented Bleich's views when it broadcast his
statements without making clear the context in which they
were spoken and without including the qualifications and
positive statements that accompanied them. The Commission
found that the outtakes could indeed "properly serve as
circumstantial evidence of intent," but went on to find that
they did not demonstrate an intent to distort the news
because:
Rabbi Bleich's latter, allegedly misleading comments im
mediately followed ... Safer's statement ... that only
"some Ukrainians" are anti-Semitic.... Indeed, that
the focus of the "60 Minutes" program was upon only a
certain sector of the Ukrainian population is evident from
at least three other express references by Safer to
"Ukrainian ultranationalist parties," "the Social National
ists," and other apparently isolated groups of Ukrainians.
Thus, rather than constitute a distortion, Rabbi Bleich's
negative comments about Ukrainians as utilized can
rightly be viewed as limited to only a segment of the
Ukrainian population.... Nor do we find intent to
distort because CBS did not include in its episode posi
tive statements about Ukraine made by Rabbi Bleich....
[T]he determination of what to include and exclude from
a given interview constitutes the legitimate "journalistic
judgment" of a broadcaster, a matter beyond the Com
mission's "proper area of concern."
WGPR, 10 FCC Rcd at 8147.
Serafyn argues upon appeal that the Commission erred in
failing to find the outtakes persuasive evidence of CBS's
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
tial extrinsic evidence" that the licensee has deliberately
distorted its news report. Mrs. J.R. Paul, 26 FCC 2d at
592. "Extrinsic evidence," that is, evidence outside the
broadcast itself, includes written or oral instructions
from station management, outtakes, or evidence of brib
ery. Hunger in America, 20 FCC 2d at 151. Our
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