A history and analysis of the Federal Communications Commission's response to radio broadcast hoaxes.

• Author: Levine, Justin

1. INTRODUCTION: LAWS OF MISREPRESENTATION AND THE UNIQUE STATUS OF RADIO

   In explaining the limits of protection under the First Amendment, Supreme Court Justice Oliver Wendell Holmes once wrote: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."(1) This famous dictum has often been cited to underscore the fact that free speech will not be a viable defense when such speech is used to perpetrate a fraud or misrepresentation that is relied upon by others. When Holmes first scripted his observation in 1919, radio and the electronic mass media were still in their infancy. The next year would see the start of the very first broadcast radio station in the United States.(2) Few had heard of commercial radio broadcasts up to that point. The creation of the Federal Communications Commission (FCC) was still fourteen years away.(3)

   With the advent of commercial broadcasting, the challenges of balancing free speech with the interests of protecting the public from potentially harmful frauds raised to new levels. The theater in which one can shout "fire" is no longer confined to a single locale. The venue now ranges in size from individuals, to communities, to the entire global village.

   Since its inception, the FCC struggled in deciding where to draw the line regarding broadcast hoaxes. On the one hand, the FCC has sought to enforce regulations which ensure that the airwaves are used, among other reasons, "for the purpose of promoting safety of life and property."(4) On the other hand, the FCC has been reluctant to dictate the content of broadcasters, lest it stifle the vibrancy of the media in reaching its potential to fulfill artistic, informational, and cultural needs.(5)

   When it comes to perpetrating hoaxes, no medium other than the Internet has been as prolific as the radio. Not only is radio pervasive, it can have profound effects on its listeners. Author Tim Crook explained the primary reason why radio can have such a unique effect:

   [R]adio was the first electronic medium of mass entertainment and radio is a more psychological medium. Its relationship with its audience is based on an emotional and imaginative bond. In 1997[,] radio has not lost its importance as a huge and significant source for news and entertainment[,] and the opportunity to hoodwink the audience is as strong as it has ever been.(6) Certainly, the opportunity to mislead an audience exists in other mediums. Television and print media are equally capable of misleading consumers if the producers of their content are determined to do so. Additionally, the relatively unregulated Internet is fertile ground for various types of fraud and misinformation. However, certain limitations on other media technologies prevent them from having the same impact as radio. Print is not as immediate as radio. For instance, it is hard to imagine a newspaper displaying the headline, "Community Church Is Burning Now as Reader Is Reading this Paper." Whether the text is from newspapers or the Internet, it can only convey events that have taken place in the past or make predictions about the future. Television can have a more immediate impact, but viewing television requires an information consumer to be in a passive state. Few productive actions can be achieved simultaneously while watching television.

   One of the reasons radio remains an effective hoax medium is its unique ability to engage audiences while they are involved in different tasks. For instance, people can receive radio information while they are driving to work, washing dishes, typing, jogging, showering, or performing any number of tasks. In terms of portability, radio remains second only to newspapers in its ability to follow the audience throughout their daily lives. Visual media--such as print, television, and the Internet--require the undivided attention of a static viewer in order to receive information.(7) This unique difference gives radio the opportunity to maximize the impact of a hoax by allowing gullible listeners to immediately act on the information they receive.

   Because radio remains the only medium that combines the elements of immediacy, portability, psychological impacts on the imagination, and the ability to reach listeners throughout their daily routines, it remains the most conducive for perpetrating hoaxes on unsuspecting audiences. While hoaxes, frauds, and misrepresentations have occurred on all types of mass media, cases demonstrate that radio remains one of the most effective means for their execution.

2. EARLY DEVELOPMENTS IN BROADCAST HOAX LAW

   The earliest regulations of radio indicate that authorities were certainly aware of some of the possible dangers that the medium posed as far as hoaxes were concerned. The Radio Act of 1912(8) provided in section 7, "[t]hat a person, company, or corporation within the jurisdiction of the United States shall not knowingly utter or transmit, or cause to be uttered fraudulent signal, call, or other radiogram of any Kind."(9) The updated Radio Act of 1927 (1927 Act)(10) carried over the provision outlawing any false distress signal using the radio waves.(11) Such problems apparently merited an even higher concern than the general interference between broadcasting signals, which in turn was not truly rectified until the early 1930s.(12)

   Congress again overhauled radio regulation with the Communications Act of 1934 (1934 Act).(13) That year, Congress repealed the false distress section of the 1927 Act and transferred its contents to section 325(a) of the 1934 Act, which is still in force today.(14) The provision states: "No person within the jurisdiction of the United States shall knowingly utter or transmit, or cause to be uttered or transmitted, any false or fraudulent signal of distress, or communication relating thereto...."(15)

   The scope of the 1934 provisions is considerably narrower than the 1912 regulations. Had the 1912 statute barring false radio signals "of any kind" remained in effect, the regulation of content on radio stations might have taken a very different course. As it happened, Congress limited itself to prohibiting false "distress signals."

   Regulators of the radio waves seemed to have anticipated early on how basic variations of falsely shouting fire in a theater would translate to the new age of mass media. However, no one was prepared for the kind of phenomena created in the late 1930s when CBS broadcast to an unsuspecting nation a radio drama concerning an alien invasion.

   On the night of Sunday, October 30, 1938, Orson Welles, along with cohorts from the Mercury Theater, performed a loose radio adaptation of War of the Worlds, an H.G. Wells novel concerning a Martian invasion.(16) WABC broadcast the program live from 8:00 to 9:00 P.M.,(17) as well as the CBS national network, consisting of over 151 stations throughout the country.(18) The broadcast differed from previous typical radio drama styles of the day. After an introductory speech by Orson Welles, explaining the fictional nature of the broadcast, the program then simulated an announcer who purported to bring the listeners live music from an orchestra in the Park Plaza in New York, along with weather reports.(19) The station then played actual orchestral music, only to be interrupted by a separate announcer with a breaking "news bulletin":

   Ladies and gentlemen, we interrupt our program of dance music to bring you a special bulletin from the Intercontinental Radio News. At [twenty] minutes before 8 [P.M.], central time, Professor Farrell of the Mount Jennings Observatory, Chicago, Ill., reports observing several explosions of incandescent gas, occurring at regular intervals on the planet Mars.(20) A brief return to music simulating a live orchestral performance followed the news announcement.(21) The pattern repeated itself with updated breaking announcements reporting meteors striking the earth and interviews with "astronomers" from Princeton Observatory.(22) The broadcast later moved to a simulated live newscast from the scene of the meteor landing where a reporter described monsters emerging from the debris and attacking.(23) Sounds of crashing microphones and moments of silence added to the realism.(24) Reports of deaths along with interviews of state militia officers and Washington officials were heard before the middle break of the program, which reiterated the fictional nature of the broadcast for the first time since its start.(25)

   Despite the announcements made before the end of the broadcast intended to assure audiences of its fictional nature, panic gripped segments of the nation.(26) Listeners did not realize that they were hearing a dramatization. Families rushed out of their homes, traffic jams clogged the streets, church services were disrupted, and chaos ensued from people trying to flee phantom Martians from the sky.(27) The New York Times reported that hospitals treated people for shock and hysteria, while police switchboards were so swamped with calls that they could not conduct regular business.(28)

   CBS and Welles offered regrets that they had caused such a reaction.(29) Welles denied rumors that the program was a publicity stunt designed to promote Mercury Theater productions.(30) He pointed to four factors that should have tipped listeners off to reality: (1) the opening announcement set the show one year in the future (1939); (2) the broadcast took place during the regular Mercury Theater broadcast slot which was announced and described in all the newspapers; (3) a total of four announcements were made describing the fictional nature of the show, with one such announcement falling in the middle of the broadcast; and (4) the familiarity of the American myth regarding an invasion from Mars.(31) Welles further explained:

   Far from expecting the radio audience to take the program as fact rather than as a fictional presentation, we feared that the classic H. G...