ГУЛаг Палестины - Лев Гунин

difference between those two regimes.

Nevertheless, in spite of all these quite essential differences, here

abroad the pogroms of the followers of Petlura are much more known than

those perpetrated by Denikin's army, although the latter numerically and

qualitatively surpassed considerably the former. This is to be explained

not only by the propaganda of the Russian groups which have old

connections and larger means in Europe and America, but also by the

incontestable fact that the first series of pogroms attracted the

greatest attention and brought forth the strongest expression of

dissatisfaction on the part of the public.

(In F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations

during the Years of the Revolution (1917-1921): Collection of Documents

and Testimonies by Prominent Jewish Political Workers, The Ukrainian

Information Bureau, Munich, 1956, pp. 48-51)

HOME DISINFORMATION 60 MINUTES 989 hits since 12Aug98

Ginsburg U.S. Court of Appeals 11Aug98 Serafyn vs. Federal Communications Commission

Serafyn also submitted evidence that "60 Minutes" had no policy against

news distortion and indeed that management considered some distortion

acceptable. For example, according to the Washington Post, Mike

Wallace, a longtime reporter for "60 Minutes," told an interviewer: "You

don't like to baldly lie, but I have."

An introduction to the United States Court of Appeals decision below can

be found in an Associated Press article by Jeannine Aversa which is on

the Ukrainian Archive.

The original of the Court of Appeals decision below can be found on the

United States Court of Appeals web site whose home page is at

www.cadc.uscourts.gov and where the decision can either be accessed by

following links from the Court of Appeals home page, or else accessed

directly at www.cadc.uscourts.gov/common/opinions/199808/95-1385a.txt.

As page numbering was not indicated in the Court of Appeals web site

version, it could not be inserted below, although page boundaries could

be inferred and are indicated below by means of horizontal lines.

The version below inserts clickable yellow CONTENTS boxes to remedy the

general problem of a reader's losing track of where he is within a large

document when reading it on screen, and to facilitate moving effortlessly

from one part of the document to another.

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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 1998 Decided August 11, 1998

No. 95-1385

Alexander J. Serafyn, et al.,

Appellants

v.

Federal Communications Commission,

Appellee

CBS Inc., et al.,

Intervenors

Consolidated with

Nos. 95-1440, 95-1608

Appeal of Orders of the

Federal Communications Commission

Arthur V. Belendiuk argued the cause and filed the briefs

for appellants. Shaun A. Maher and Donna T. Pochoday

entered appearances.

C. Grey Pash, Jr., Counsel, Federal Communications Com

mission, argued the cause for appellee, with whom Christo

pher J. Wright, General Counsel, and Daniel M. Armstrong,

Associate General Counsel, were on the brief.

Richard E. Wiley, Lawrence W. Secrest, III, James R.

Bayes, and Daniel E. Troy were on the brief for intervenors

CBS Inc. and Westinghouse Electric Corporation. John

Lane Jr., Ramsey L. Woodworth, and Robert M. Gurss

entered appearances.

Before: Ginsburg, Henderson, and Randolph, Circuit

Judges.

Opinion for the court filed by Circuit Judge Ginsburg.

Ginsburg, Circuit Judge: Alexander Serafyn petitioned the

Federal Communications Commission to deny or to set for

hearing the application of CBS for a new station license.

Serafyn objected that CBS was not fit to receive a license

because it had aired a news program in which it intentionally

distorted the situation in Ukraine by claiming that most

Ukrainians are anti-Semitic. The Commission summarily

denied the petition, holding that Serafyn had not submitted

enough evidence to warrant a hearing. Because the Commis

sion neither applied the correct standard nor provided a

reasoned explanation in its decision, we vacate its order and

remand the matter to the agency for further proceedings.

Serafyn also petitioned to revoke CBS's existing licenses on

the ground that CBS made a material misrepresentation to

the Commission when it gave an affiliated station false infor

mation regarding its handling of viewer letters complaining

about the same program. The Commission denied that peti

tion on the ground that Serafyn had not alleged that CBS

intentionally misrepresented the matter to the Commission.

We uphold the Commission's decision in this matter as rea

sonable.

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

I. Background

Section 309(a) of the Communications Act provides that the

Federal Communications Commission may grant a broadcast

license only when it determines that doing so would serve the

"public interest, convenience, and necessity." 47 U.S.C.

s 309(a). Under s 309(d) of the Act any interested person

may petition the FCC to deny or to set for hearing any

application for a broadcast license or to revoke an existing

broadcaster's license. The petition must contain

specific allegations of fact sufficient to show that ... a

grant of the application would be prima facie inconsistent

with [the public interest, convenience, and necessity].

Such allegations of fact shall ... be supported by affida

vit of a person ... with personal knowledge thereof.

Id. The FCC must hold a hearing if it finds that the

application presents a "substantial and material question of

fact" or if it is otherwise unable to conclude that granting the

application would serve the public interest. See s 309(e).

As the Commission interprets it, s 309 erects a two-step

barrier to a hearing: (1) a petition must contain specific

allegations of fact that, taken as true, make out a prima facie

case that grant of the application would not serve the public

interest; and (2) the allegations, taken together with any

opposing evidence before the Commission, must still raise a

substantial and material question of fact as to whether grant

of the application would serve the public interest. See Astro

line Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C.

Cir. 1988) (describing two-step test). At the first step, "[t]he

Commission's inquiry ... is much like that performed by a

trial judge considering a motion for a directed verdict: if all

the supporting facts alleged in the affidavits were true, could

a reasonable factfinder conclude that the ultimate fact in

dispute had been established." Gencom, Inc. v. FCC, 832

F.2d 171, 181 (D.C. Cir. 1987). At the second step, a substan

tial and material question is raised when "the totality of the

evidence arouses a sufficient doubt on the [question whether

grant of the application would serve the public interest] that

further inquiry is called for."

Citizens for Jazz on WRVR,

Inc. v. FCC, 775 F.2d 392, 395 (D.C. Cir. 1985).

In determining whether an allegation of news distortion

raises a question about the licensee's ability to serve the

public interest, the Commission analyzes both the substantial

ity and the materiality of the allegation. The Commission

regards an allegation as material only if the licensee itself is

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

cal inaccuracies and offensive statements or characterizations

in the show.

Notwithstanding the requirement in 47 C.F.R. s 73.1202