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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