port) that the "desirability" of smoking in cigarette advertisements "is portrayed in terms of the satisfactions engendered by smoking and by associating smoking with attractive people and enjoyable events and experiences, and that by so doing the impression is conveyed that smoking carries relatively little risk. . . .” Id. at 938.

Petitioners have attached the text of 18 military service recruitment announcements to their petition. A sample of two adequately conveys the mood of these advertisements:

"ANNOUNCER. It's a day you can't put into words. You try to compare it with the day you graduated from high school, but there's no comparison. Because somehow, the day you graduated from high school, you were still just another guy, and on this day, you're something else. You look taller than you did because you stand taller. You look proud because you are proud. And no wonder ... you've just gone through the toughest eight weeks a guy ever had. And if you didn't have what it takes, you wouldn't be standing with the rest of them, you wouldn't be wearing the same uniform. Ask a marine. Ask a marine what it means to graduate from boot camp. He'll tell you. It's a day to remember for the rest of your life. Because that day they separate the men from the boys. "REFRAIN. Ask a marine."

"ANNOUNCER. We understand you're looking for a man's job. Well, we just may have one. Who are we? We've been in business since 1775. We're located in close to 200 places around the world. We'll pay while we are training you. Give you thirty days off per year. Give you a chance to continue your education. And we'll build you a man. We'll build you a marine. And that man and that marine will be you.

"REFRAIN. Ask a marine."

I think it is clear from just these two advertisements that the "desirability of joining the Marines is portrayed in terms of the "satisfactions" to be derived from such an experience [you'll "stand taller," you'll be "proud," etc.] and by "associating" membership in the Marines "with attractive people" [real] "men," men who "have what it takes," etc.] and "enjoyable events and experiences" [travel, on-job training, thirty days off per year, a chance to continue one's education, etc.].

As with the cigarette advertisements, there is something missing. What is noticeably absent from these advertisements is the view, widely held by many respected citizens, that "for hundreds of thousands of soldiers the pay is poor, the principal ‘educational opportunity' is the opportunity to learn how to kill, and the 'travel' is to Vietnam, where the question of whether the military is making a 'really worthwhile contribution to the security of [the United States]' is a highly controversial one." Letter from Mr. Donald A. Jelinek to the FCC, Feb. 16, 1970, Appendix IV, p. 2.*

III

In light of the close similarity-and perhaps even identity-of the instant complaint with our Cigarette Advertising ruling, let us examine the majority's justification for ruling against petitioner.

In the first place, the majority begins by stating what I believe to be an oversimplified interpretation of the Fairness Doctrine: "that when a station presents one side of a controversial issue of public importance it is obligated to afford reasonable opportunity for the presentation of significant conflicting viewpoints on the issue." [Emphasis added.] This interpretation assumes that the licensee's obligation to present all viewpoints on issues of controversy and public importance is invoked only when one side is first presented. Were this the case, the licensee could circumvent the Fairness Doctrine by simply refusing to present any views on such issues. I believe, on the contrary, that the Fairness Doctrine is invoked, not when one side of an important issue is presented by a licensee, but when such an issue arises. By my reading, this was the Supreme Court's view of the Fairness Doctrine in Red Lion Broadcasting (Co. v. FCC, 395 U.S. 367, 369 (1969), where it was described as the "require

The internally quoted material is taken from other military recruitment advertisements reproduced in Appendix III, p. 1, to Mr. Jelinek's letter. Some of the material will be quoted elsewhere in this opinion.

ment that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage."

Next, the majority drags out the customary and familiar boilerplate recitation that the Commission will defer to the licensee's judgment on a Fairness Doctrine matter so long as it is "reasonable." ("In short, it is not a question of the Commission substituting its judgment for that of the licensee, but rather whether, in light of the showing before the Commission, the licensee's judgment can be said to be arbitrary.") Of course, everyone must know that this double talk is nonsense, and is used primarily when the Commission does not want to apply the Fairness Doctrine to a particular facutal situation. Obviously at some point this Commission must decide that the licensee is wrong in his determination that the Fairness Doctrine is inapplicable, and I do not see how we can do this unless we substitute our judgment for the licensee's. Whatever may be the initial responsibility of the licensee, some agency must arbitrate disputes regarding the applicability of the Fairness Doctrine-and that task has been assigned to the Federal Communications Commission, with review by the courts. In any case, the majority treats this "throwaway" language precisely for what it is a useless appendage inserted routinely in Commission opinions-and proceeds to make its own, independent determination anyway: "In the present case, we do not believe that the broadcast of Armed Forces recruitment messages... raises a controversial issue of public importance. . . ."

Finally, the Commission majority states why it believes that the recruitment messages do not raise controversial issues of public importance. Its creation is scarcely a monument to clarity. So far as I can determine, however, the majority seems to be saying that advertisements asking young men to join the Army-like "similar recruitment messages" asking people to become "policemen, firemen, teachers, census enumerators, peace corps volunteers, etc."-only raise the issue whether the particular institution in question (here the Army) has the legitimate power to recruit members. (The majority states: "We note that the power of the Government to raise an army has not been questioned. . . ." I cannot imagine why the majority merely "notes" this point if it is the crux of its holding.) The majority then goes on to reject the petitioners' arguments, stating that the recruitment advertisements do not refer to the "use made of the amy (war in Vietnam)" and the "manner in which manpower is conscripted (Selective Service draft)."

This reasoning seems faulty on a number of counts.

First, it merely illustrates the principle that determined men, if they try hard enough, can define any problem out of existence. If the Commission had applied similar reasoning to cigarette advertisements three years ago, we would presumably have ruled that cigarette advertisements raise only the issue of whether cigarette manufacturers have the right to recruit customers. Not surprisingly, the broadcasting industry made precisely this argument with respect to cigarette advertising, contending that "no controversial issue of public importance can be presented where a lawful business is advertising a lawful product." Not surprisingly, we gave it suitably short shrift. See Cigarette Advertising, 9 FCC 2d 921, 938-40 (1967). What is surprising, however, is that the majority now finds such specious reasoning so persuasive.

Second, it seems to me from the text of the recruitment advertisements that they do far more than merely assert the right of the army to recruit members. Indeed, it is difficult to treat this latter notion seriously. What would the average listener or viewer think upon hearing a military recruitment advertisement such as, "Should your boy join the U.S. marines? . . . It really depends on . . .how soon he wants to be a man"? Would he assume that this is the Army's effort to persuade him that it can legitimately recruit members. On the contrary, the rather blatant message of these spots is that is "desirable," for a multitude of reasons, for a young man to join the military. The principle question, therefore, is whether promotion of the “desirability” of military service raises a controversial issue of public importance.

Third, it seems clear that the majority's references to other types of recruitment-"policemen, firemen, teachers, census enumerators, peace corps volunteers, etc."-are simply misplaced. For one thing, so far as I know policemen, firemen, teachers, etc., are not threatened with the prospect that if they do not "volunteer" for service, they will be drafted! Congressional appropriations for

"standing armies," the quartering of troops, and the relative role of the military generally have been controversial issues since the very founding of our Nation. They are no less so at this hour. This is in part because the military conscripts men against their will, forces them to kill and destroy and subjects them to the omnipresent threat of death. These risks are simply not shared by census enumerators, whatever else may be the hazards of their job. For another thing, there is no question as to the power of municipalities and schools to hire policemen and teachers. Serious question has been raised, however, as to whether the President can legitimately conduct a war in Southeast Asia, invading new countries at will, without a declaration of war by the Congress, as required by Article I, Section 8, of the Constitution. It is one thing to hire men to teach school; it is quite another to force them to fight and die in a war that may be illegal.

IV

The majority finally advances as its essential argument the proposition that there is no connection between military recruitment announcements and two other issues of admittedly high controversy-the Vietnam War and the Selective Service system. This argument is faulty for many reasons.

First, as discussed above, the majority has set up a "straw man" by adopting a highly artificial and narrow definition of the scope, function and impact of the military recruitment advertisements in question, and then knocking it down as "non-controversial."

Even if the recruitment advertisements made no claims that military service was "desirable," but merely contained the exhortation "Join the Army, Join the Army," I believe they would raise an issue of controversy and public importance. The reason is that one simply cannot separate the controversiality of a recruitment advertisement from the nature and function of the job in question. If to pick a deliberately strong example-the Government were to recruit soldiers for a special commando troop whose function was widely known as encompassing the assassination of civilians in Vietnamese villages, and used advertisements which simply urged men to "Join the Commandos, Join the Commandos," only a person with the most tenuous grip on reality could reason that nothing more than "the power of the Government to raise an army" had been placed in question. Recruitment advertisements for policemen, firemen, teachers, census enumerators, and so forth, are not controversial because the work they do is not controversial. But I suspect recruitment solicitations for National Guardsmen in the Kent State University region of Ohio, or for the CIA in Berkeley, would be highly controversial. So it is for recruitment into the Armed Forces generally at this time.

Second, the military recruitment advertisements before us obviously do far more than urge young men to "Join the Army." They make grandiose and wideranging claims as to the "desirability" of military service, just as cigarette commercials taught the desirability of smoking. And once the desirability of military service is placed in issue, I simply do not see how one can avoid a discussion of what one will be doing there [continuing one's education, becoming "a man," joining "the leaders"], where one will be doing it [in "close to 200 places around the world"-one of which is presumably Vietnam], and how one will be rewarded ["good pay" and a share in the "fight for freedom" and the "protection of our nation and our ideals"].

Third, even apart from the present Vietnam conflict, the issue of military service has traditionally been embroiled in extreme controversy of great public importance. See United States v. O'Brien, 891 U.S. 367 (1968); Holmes v. United States, 891 U.S. 936 (1968) (Douglas, J., dissenting, with a long historical sketch on the controversial nature of the Armed Forces). Indeed, the role of the military in our society in general, and its specialized methods for recruiting members in particular, have generated controversies of such long standing that they extend almost back to the Revolutionary War. See United States v. Nugent, 346 U.S. 1 (1953); Hamilton v. Regents of the Univ. of California, 293 U.S. 245 (1934); Selective Draft Law Cases, 245 U.S. 366 (1918): Tarble's Case. 80 U.S. [13 Wall.] 397 (1871); Prize Cases, 67 U.S. [2 Blacks] 635 (1862). The history of this controversy is quite distinct from the experience of other public groups, like firemen and teachers, relied upon by the majority. In Schenck v. United States, 249 U.S. 47 (1919), for example, the Supreme Court

adopted the "clear and present danger" test to convict persons of circulating. documents which complained that the Conscription Act violated the Thirteenth Amendment's prohibition against "slavery" and "involuntary servitude," and urged potential draftees to "assert your opposition to the draft." Even today one pressing and important "controversial" issue is the extent to which a young man who succumbs to military recruitment advertisements and joins the army loses those constitutional rights guaranteed to civilians by the Supreme Court in cases since Schenck. See Note, Dissenting Servicemen and the First Amendment, 58 Geo. L. J. 534 (1970).

Fourth, it cannot be denied that this country is in fact engaged in a serious war, and that the army is playing an integral part in it. A federal court, for example, has acknowledged that service in the Armed Forces, whether by recruitment or enlistment, carries with it "a strong probability of ultimate service in Vietnam." United States v. Sisson, 294 F. Supp. 511, 513 (D. Mass. 1968). Indeed, almost all our pressing national problems-inflation, campus unrest, racial discrimination, the urban crisis, mass demonstrations and protestappear linked in some way to the Vietnam War. Highly respected legal scholars have argued, as well, that the President has violated the Constitution in conducting an "undeclared" war. F. Wormuth, The President Versus the Constitution (paper published by the Center for the Study of Democratic Institutions, Santa Barbara, Calif., 1968); Hughes, Civil Disobedience and the Political Question Doctrine, 43 N. Y. U. L. Rev. 1 (1968); The Vietnam War and International Law, Am. Soc. Int'l Law (R. Falk ed., 1968). How can recruitment solicitations be considered anything but controversial?

Finally, consider some simple statistics. In 1969, some 59,000 Americans (49,000 men and 10,000 women) died of lung cancer, and over 90% of these deaths are reputedly linked to cigarette smoking. Smoking and Lung Cancer, Public Health Service pamphlet (1970). This means that of the 70,000,000Americans who consume tobacco in one form or another, approximately 53,100or one out of 1,300-died of lung cancer in 1969. (If one accepts the higher figure of 300,000 cigarette-related deaths per year, the ratio becomes one out of 233.) The enormity of this problem in part led the FCC several years ago to apply the Fairness Doctrine to cigarette commercials. Cigarette Advertising, 9 FCC 2d 921 (1967).

Yet what of the hazards of military service? During 1969, the same period in question, the United States had 3,127,000 servicemen in uniform around the world-many of whom were thousands of miles from Vietnam. Of that total number, however, approximately 11,527-or one out of 275-lost their lives in Vietnam. Source: Office of Public Information, Southeast Asia Desk, U.S. Department of Defense (June 18, 1970).

Simply stated, it is at least as dangerous to enlist in the armed services as it is to use tobacco. This Commission has ruled that invitations to smoke cigarettes raise issues of sufficient controversy and public importance to invoke the Fairness Doctrine. Yet invitations to join the military do not. Why? Frankly, the majority's reasoning-what there is of it-escapes me.

Cigarette advertisements were brought under the Fairness Doctrine--which, after all, requires only that the other side be told-in part because they were inherently deceptive. The ads represented to their audience that smoking was "desirable," without warning that death or serious illness might follow. I be lieve that solicitations for military service are similarly deceptive, for they do not warn their audience that death or serious injury might follow, as a statistical consequence of enlistment, or that a young man of draft age may have alternatives to the "enlist-or-be-drafted" dilemma. Congress itself has, in the Selective Service Act, exempted from military service, for reasons of strong national policy, persons who fall in numerous categories. Persons, therefore, whom Congress did not intend to induct, may be induced into a military obligation which was unrequired, and perhaps even undesirable, as a direct consequence of partial truths contained in the advertisements before us. To the extent these advertisements suggest that young men can satisfy their patriotic obligations to their country only by military service, they are inherently deceptive. Only the application of the Fairness Doctrine can correct this deception by requiring the presentation of alternative views.

V

The majority claims that the military recruitment advertisements do not raise an issue of controversy and public importance. They contend that in any case there is "no indication that any of the stations against whom the complaint was filed have failed to treat the issues of Vietnam and the draft (both concededly controversial issues of public importance) in conformance with the fairness doctrine." In our Cigarette Advertising ruling, 9 FCC 2d 921 (1967), we addressed this problem of sufficiency. Whereas we concluded that the broadcaster was not required to devote an “equal" amount of time to opposing views, we held that the time must be at least be "significant." Id., 9 FCC 2d at 949. In National Broadcasting Co. [WNBC-TV], 16 FCC 2d 947, 15 P & F Radio Reg. 2d 1059 (1969), for example, the Commission (over my dissent) ruled that a ratio of one anti-smoking commercial to 8.1 cigarette commercials was "significant."

In the present case, however, so far as I know, we do not have any indication of the ratio involved-military recruitment advertisements to anti-military coverage. The majority's assumption that all the licensees broadcasting such advertisements have fulfilled their Fairness Doctrine obligations, therefore, seems completely unsupported by any evidence. One can only wonder why the majority seems so eager to base such an important precedent-setting decision on so little.

In addition, there are a number of factors that should be weighed in determining whether a licensee has given "significant" coverage to various views. First, an important factor is the frequency and regularity of presentation. The Commission has explicitly recognized this factor in its decision, Cigarette Advertising, 9 FCC 2d 921, 941 (1967):

"We think that the frequency of the presentation of one side of the controversy is a factor appropriately to be considered in our administration of the Fairness Doctrine . . . For, while the Fairness Doctrine does not contemplate "equal time" if the presentation of one side of the issue is on a regular and continual basis, fairness and the right of the public adequately to be informed compels the conclusion that there must be some regularity in the presentation of the other side of the issue."

In affirming this ruling, the United States Court of Appeals in Banzhaf v. FCC, 405 F. 2d 1082, 1099 (D.C. Cir. 1968), was even more explicit :

...

"In these circumstances, the Commission could reasonably determine that news broadcasts, private and governmental educational programs, the information provided by other media . . . inadequately inform the public of the extent to which its life and health are most probably in jeopardy. The mere fact that information is available, or even that it is actually heard or read, does not mean that it is effectively understood. A man who hears a hundred 'yeses' for each 'no,' when the actual odds lies heavily the other way, cannot be realistically deemed adequately informed." [Emphasis supplied.]

According to the Office of the Controller, U.S. Department of Defense (information supplied June 19, 1970), the American Forces Radio and Television Service (AFRTS) spent at least $229,000 in 1969 producing 1,000 radio and 300 television spot announcements, all supporting military information themes.2

It is difficult to put a dollar value on the recruiting spot activities of the Pentagon The talent of contributors like Jack Webb, Frank Blair, Jonathan Winters, and so forth, are given without charge. Their commercial value would, of course, be thousands of dollars in the aggregate. The air time is also "contributed" (Subject to such coercion as may be involved from the combination of the Department of Defense and the Federal Communications Commission). The value of this time is also virtually impossible to compute accurately, but estimates running well in excess of $10 million annually would appear reasonable. The hidden costs of Defense Department personnel, physical facilities, materials, distribution costs, and so forth cannot be ascertained. But even the Pentagon itself is prepared to acknowledge directly attributable costs of at least $229,000 in 1969. The radio spots are prepared by three professionals and one clerical aide (salaried at $49,000 year), who regularly send them to 350 radio stations across the country for systematic rebroadcast. They produced 1000 radio spots in 1969 alone. The acknowledged cost: $121,000. AFRTS also spent a total of $108,000 in 1969 producing 260 television recruitment spots and 40 five-minute fillers (combining both entertainment and a recruitment pitch) for regular use on 90 television stations across the country. The AFRTS television effort employs six full-time professionals and one clerical aide, also at a cost of $49,000. Thus, AFRTS publicly acknowledges spending a total of $229,000 for radio and television recruitment spots in 1969 alone.