ГУЛаг Палестины - Лев Гунин

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