Appeals court hears arguments in case involving CBS broadcast
by Yarema A. Bachynsky
Special to The Ukrainian Weekly
PARSIPPANY, N.J. - The courtroom maneuverings surrounding the CBS program "60 Minutes" and its broadcast of "The Ugly Face of Freedom" continued on January 23, with the United States Appeals Court for the Circuit of the District of Columbia hearing oral arguments in the case of Serafyn v. FCC.
And although this most recent lawyerly joust was on a procedural issue, the court's decision, to be announced in several months, may finally require media giant CBS to give a full accounting of what many Ukrainians, within and outside the United States, consider to be a blatantly slanderous attack on themselves and their history.
A three-judge panel, having reviewed legal briefs from attorneys representing appellant Alexander Serafyn of Detroit, appellee the Federal Communications Commission and intervenors (legalese for a non-party interested in the outcome of litigation) CBS, Infinity Broadcasting Corp., Westinghouse Electric Corp. and WPGR Inc., heard arguments from Mr. Serafyn's and the FCC's attorneys. At issue was the propriety of the FCC's decision not to grant Mr. Serafyn a factual hearing on the question of whether or not the controversial "60 Minutes" segment, "The Ugly Face of Freedom," broadcast on October 23, 1994, constituted an intentional distortion of news and a violation of the federal requirement that broadcasters serve the public interest.
According to Mr. Serafyn's attorney. Arthur Belendiuk of the Washington-based firm Smithwick and Belendiuk, the FCC is on shaky ground. In a telephone interview on February 10, Mr. Belendiuk indicated that all three justices subjected FCC attorney Barry Posh to considerable pressure relating to the FCC's position denying that the appellant had "failed to present extrinsic evidence of intentional news distortion so as to raise a substantial and material question of fact sufficient to require the FCC to designate a hearing on the issue."
The judges were especially troubled by the FCC's rejection of what the appellant argues are "CBS's egregious linguistic mistranslations" (of the western Ukrainian word "zhyd" [Jew] repeatedly mistranslated in the report as the derogatory "kike"); CBS's portrayal of Ukrainian boy scouts as an anti-Semitic organization; and alleged CBS misuse of a German wartime propaganda film to impute Ukrainian, as opposed to German, responsibility for the rounding up and destruction of thousands of Jews in western Ukraine.
FCC officials would not comment on the hearing except to state their belief that, in what they described as an honest disagreement between the Ukrainian community and the FCC, Mr. Serafyn had not met the high extrinsic evidence standard required for a formal hearing and associated discovery of evidence relating to the substantive issues alleged in the appellant's briefs.
CBS did not respond to The Weekly's telephone requests for comments.
Mr. Belendiuk mentioned that CBS had made some settlement overtures following the oral appellate argument, but that his client's suggestions that CBS apologize and admit the alleged misrepresentations in "The Ugly Face of Freedom" were not deemed acceptable to the powerhouse broadcaster which has long been one of the the top three U.S. television networks. CBS recently merged with Westinghouse Electric Corp.
According to Mr. Belendiuk, CBS is deeply worried that a full-blown hearing on the merits of the case before the FCC is potentially disastrous, as the network stands to lose its broadcast license nationwide should it be found liable for intentional or reckless misrepresentation by airing news distortion.
When asked to predict the decision of the three-judge appellate panel, FCC officials were not prepared to comment on the situation. Mr. Belendiuk was somewhat more upbeat in his assessment, reiterating that the court was troubled by various points seemingly cast aside by the FCC in its decision to not grant Mr. Serafyn a hearing.
Mr. Belendiuk also noted that, should the court grant his client's request for a full hearing, the FCC would be required to schedule such and allow for discovery of evidence within CBS's possession, which could be entered at the hearing to show intentional or reckless misrepresentation and news distortion. Should Mr. Serafyn's appeal be denied, appeals to the entire District of Columbia Circuit (known as "en banc") or to the U.S. Supreme Court are a strong possibility.
A decision is expected on the appeal by May.
It should be recalled that a number of actions originally were brought against CBS, its affiliates, and, later, Westinghouse Electric, by various plaintiffs, among them Mr. Serafyn, the Ukrainian Congress Committee of America and Oleg Nikolyszyn of Providence, R.I. All these cases were later combined into one action, insofar as they all stemmed from the same event, broadcasts of ("The Ugly Face of Freedom"), and the relief sought by the various plaintiffs was closely related.
Copyright © The Ukrainian Weekly, February 15, 1998, No. 7, Vol. LXVI
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