The Supreme Court decision in Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc., 360 U.S. 525 (1959), may not mention the First Amendment, but it addressed an important libel issue, even though it came years before the Court’s major decision on libel in New York Times Co. v. Sullivan (1964).

A North Dakota radio-television station had permitted a U.S. senatorial candidate to speak and another to broadcast an uncensored reply to fulfill the requirements of the Communications Act of 1934 to allow a right of reply. The North Dakota Supreme Court decided that the first candidate could not sue the station for alleged libel, and Justice Hugo L. Black, speaking for five members of the U.S. Supreme Court, agreed.

Black observed that Section 315 of the Communications Act barred a station from censoring political speeches. Black interpreted this prohibition to apply to “any examination of thought or expression in order to prevent publication of ‘objectionable’ material,” and he argued that past precedents backed this interpretation. He pointed out that it would be difficult for a station to determine quickly whether materials in such speeches were or were not libelous, and that “erroneous decisions by a station could not be corrected by the courts promptly enough to permit the candidate to bring improperly excluded matter before the public.” He did not find it fair to require stations to provide time for response and then to hold them liable for the consequences. The statute’s legislative history supported this conclusion, he noted. He further believed it necessary to abrogate any state laws that might have a different intent absent a clear statement of congressional intent on the subject.

Justice Felix Frankfurter authored a dissent on behalf of four justices, who essentially argued that the Communi cations Act of 1934 was designed to bar federal, but not state, libel prosecutions.

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