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
assessment of allegations of news distortion, in sum,
focuses on evidence of intent of the licensee to distort,
not on the petitioner's clam that the true facts of the
incident are different from those presented.
WGPR, 10 FCC Rcd at 8147.
Serafyn argues that the definition quoted above does not
purport to be all-inclusive, and that the Commission acted
unreasonably in holding that the evidence he submitted is not
also extrinsic. In his view the agency should inquire "wheth
er the licensee has distorted a news program" and the
Commission can make this inquiry--without becoming a na
tional arbiter of truth--by relying upon "objective" evidence
to disprove assertions made in a news show. Intervenor CBS
argues that the "objective" nature of evidence has never been
considered in determining whether it is extrinsic. The Com
mission responds that however one defines "extrinsic evi
dence," it does not include that which goes only to the truth
of a matter stated in the broadcast.
The Commission has not so much defined extrinsic evidence
as provided examples of the genre and what lies outside it.
While the Commission certainly may focus upon evidence
relevant to intent and exclude all else, the problem is--as the
Commission's past decisions show--that the inaccuracy of a
broadcast can sometimes be indicative of the broadcaster's
intent. See Application of WMJX, 85 FCC 2d 251 (1981)
(station denied intent to mislead public but admitted it knew
news broadcast was false; Commission implicitly concluded
from broadcaster's knowledge of falsity that it had intended
to mislead public); see also Hunger in America, 20 FCC 2d
at 147 (Commission may intervene "in the unusual case where
the [truth of the] matter can be readily and definitely re
solved").
Here, Serafyn argues that CBS got its facts so wrong that
its decision to broadcast them gives rise to the inference that
CBS intentionally distorted the news. Without deciding
whether Serafyn's arguments about individual facts are cor
rect, or even specifying what standard the Commission should
use when analyzing claims of factual inaccuracy, we must
point out that an egregious or obvious error may indeed
suggest that the station intended to mislead. This is not to
say that the Commission must investigate every allegation of
factual inaccuracy; if the broadcaster had to do historical
research or to weigh the credibility of interviewees, for
example, then any alleged inaccuracy is almost certainly
neither egregious nor obvious. Our point is only that as an
analytical matter a factual inaccuracy can, in some circum
stances, raise an inference of such intent. The Commission
therefore erred insofar as it categorically eliminated factual
inaccuracies from consideration as part of its determination of
intent.*
The chief example we have in mind is the apparent mis
translation of "zhyd" as "kike." Such a highly-charged word
is surely not used lightly. Of course, translation is a tricky
business, and it is axiomatic that one can never translate
perfectly. Nonetheless, a mistranslation that "affect[s] the
basic accuracy" of the speaker is problematic under the
Commission's standard. Galloway, 778 F.2d at 20.
Translating can be compared to editing a long interview
down to a few questions and answers. In The Selling of the
Pentagon, the Commission addressed an interviewee's allega
tion that CBS's "60 Minutes" had "so edited and rearranged
[his answers to questions posed] as to misrepresent their
content." 30 FCC 2d 150, 150 (1971). Although it decided in
that case that the interviewee had not been so badly misrep
resented as to require action by the Commission, the agency
allowed that it "can conceive of situations where the documen
tary evidence of deliberate distortion would be sufficiently
strong to require an inquiry--e.g., where a 'yes' answer to
one question was used to replace a 'no' answer to an entirely
different question." Id. Changing "Jew" to "kike" may be
as blatant a distortion as changing a "no" answer to a "yes,"
so greatly does it alter the sense of the speaker's statement;
if so, then the basic accuracy of the report is affected.
Further, when the word chosen by the translator is an
inflammatory term such as "kike," the licensee could be
expected to assure itself of the accuracy of the translation; if
it does not do so, the Commission may appropriately consider
that fact in reaching a conclusion about the broadcaster's
_______________________________
* Counsel for the Commission was unable to say at oral argu
ment whether the agency simply did not believe that such evidence