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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

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