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Kreis, the representative of artisans; Bograd, the representative of the
Poalej-Zion Party.
Petlura addressed the Delegation with a short speech in which he declared
that he himself as well as the government were always standing on the
side of the Jewish people, and were waging war against those elements who
incited the unenlightened masses to various excesses against Jews. The
Commander-in-Chief invited the representatives of the Jewish people to a
closer cooperation of both peoples for the good of the Ukrainian State,
for, only with united forces would it be possible to look after the
interests of both peoples, which had always been identical.
The Jewish delegation assured the Supreme Commander that all strata of
the Jewish people, hand-in-hand with the Ukrainian people, would defend
the independent Ukraine, because only a Ukrainian democratic government
could guarantee full rights to the Jews. The delegation asked for
granting of an opportunity to Jewish intellectuals to work toward
strengthening Ukrainian statehood, and for protection of the Jewish
population against the excesses which have taken place as the result of
provocation on the part of various Russian reactionaries and Polish
imperialists who thus wish to discredit the whole Ukrainian cause in the
eyes of Europe.
Petlura pledged himself to apply the severest measures in suppressing the
crimes of the anti-Jewish agitators, and asked the delegation in
particular to exert their influence also upon the Jewish population
behind the battlefront that they should support the Ukrainian Army in its
struggle against the Bolshevists.
(Trudowa Hromada, July 18, 1919.)
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Symon Petliura Decree of Cabinet 18Aug1919 Enemies organize pogroms
The Ukrainian and Jewish peoples both of whom work at the
reconstruction of the Ukrainian Democratic Republic, find themselves in
the face of the common enemies who are trying to sow discord and
anarchy in order to destroy the Ukrainian Republic which they hate.
Decree of the Cabinet Council
of the
Ukrainian Democratic Republic.
August 18, 1919.
(Record of the Proceedings No. 171)
The Cabinet Council, after hearing the report of the Minister for Jewish
Affairs, Mr. P.A. Krasny, on the situation as it appeared in connection
with the anti-Jewish pogroms in the Ukraine - particularly in Kiev and
in connection with the reaction of public opinion abroad, resolve as
follows:
The Ukrainian and Jewish peoples both of whom work at the reconstruction
of the Ukrainian Democratic Republic, find themselves in the face of the
common enemies who are trying to sow discord and anarchy in order to
destroy the Ukrainian Republic which they hate. For this purpose your
enemies organize pogroms, spin provocative news about pogroms in the
Ukraine so as to exploit them for their people - with the help of the
Polish ruling classes, or of the Denikin reactionaries. In deliberately
lying and provocative reports they are changing arbitrarily the places of
the pogroms which are arranged in the Ukraine by the Bolsheviks and by
the reactionary clique who are in close connection with Denikin's and
Polish reactionary circles' secret plans. In mendacious publications and
in public letters addressed to the leading representatives of European
countries, all these happenings are charged to the account of the
government of the Ukrainian Democratic Republic, although its aim is to
suppress vigorously all pogroms.
In view of the fact that such provocations and aims of the Polish and
Denikin reactionaries endanger the struggle for freedom of the Ukrainian
Republic as well as the peaceful coexistence of the peoples of the
Ukraine, the government of the Ukrainian Democratic Republic have set
themselves the most urgent task of doing away with all possibility of
provocations, pogroms or other excesses, and of calling to account all
persons hostile to the Ukrainian State, who are doing the treacherous
pogrom work in the Ukraine.
The Government has decided:
1. To make at once a proposal to the Commander-in-Chief, Petlura that he
issue an order by which all commanders of the respective bodies of
troops, from the lowest to the highest ones, would be called to account
for negligence and tolerating pogrom excesses, and that they would be
immediately arrested as traitors and handed over to a special
court-martial which would impose upon them the severest penalty,
including the death sentence.
2. To issue an order in the name of the Government and in the name of the
Commander-in-Chief to the Ukrainian partisans on the other side of the
battlefront that they also 1. should take a vigorous action against the
instigators of pogroms, 2. fight against particular treacherous pogrom
bands and annihilate them - always remembering that the army of the
Ukrainian Democratic Republic does not tolerate pogroms on its victorious
march and inflicts the severe punishment upon all the guilty ones.
3. To appoint immediately a special government commission with extensive
powers of investigating pogroms and of combating them; the said
commission to be composed of one representative from the following
offices: The Commander-in-Chief, the Inspector General, the Minister of
Justice, the Minister of Internal Affairs, and the Minister for Jewish
Affairs. The Commission should proceed at once to the frontline to the
area of liberated cities and other places of the Ukrainian Democratic
Republic. The Commander-in-Chief should be advised to order an
authorization with full powers to the Commission.
4. Through inspections, the bodies of troops and the commissioners of the
Ukrainian Democratic Republic should be informed about the foreign
provocative work of the enemies of the Ukrainian Republic, who exploit
the pogrom excesses for their own purposes.
5. By means of a special report from the Prime Minister, to inform the
Directorate of the Ukrainian Democratic Republic of this Decree, and to
manifest the Government's firm determination and effort in the direction
of removing completely any possibility of pogroms in the Ukraine.
6. To issue an appropriate proclamation of the government to the people.
7. The Minister for Press and Information should initiate an intensive
campaign against pogrom arrangers; inform the foreign press and foreign
public about the actual state of affairs, and protest against the
outrageous slandering of the government of the Ukrainian Democratic
Republic.
8. The Minister of Justice should at once take steps that all those who
are guilty of pogrom excesses, i.e. those who already have been arrested
as well as those who may be arrested, should be handed over to a special
court.
9. This Decree is to be made public.
(Ukraina, August 21, 1919.)
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Symon Petliura Army Order No. 131 26Aug1919 Do not stain those deeds
It is time for you to understand that the peaceful Jewish population, their
children and women the same as ourselves have been oppressed and
deprived of national freedom. They can not be alienated from us, they
have of old been always with us and they have shared with us their joys
and sorrows.
Army Order of the Supreme Command
of the Ukrainian Democratic Republic,
August 26, 1919.
No. 131
Officers and Soldiers!
It is time for you to realize that the Jews together with the majority of
the Ukrainian population have recognized the evil of the
Bolshevist-Communist invasion, and know already where the truth lies.
The most important Jewish parties, such as: "Bund", "United Jewish
Socialists", "Poalej-Zion" and "People's Party", have decidedly placed
themselves on the side of the Ukrainian independent state and are working
together hand-in-hand for its good.
It is time for you to understand that the peaceful Jewish population,
their children and women the same as ourselves have been oppressed and
deprived of national freedom. They can not be alienated from us, they
have of old been always with us and they have shared with us their joys
and sorrows.
The gallant army which brings brotherhood, equality, and freedom to all
peoples of the Ukraine should not be lending an ear to various
adventurers and provocateurs who long for human blood. Likewise, the
Army should not be a party to bringing a hard lot on the Jews. Whoever
is guilty of permitting such a heavy crime is a traitor and enemy of the
country and must be thrust out of human society.
Officers and soldiers! The whole world cannot but admire our heroic
deeds in the struggle for freedom. Do not stain those deeds - not even
accidentally - by disgraceful actions and do not bring down burning shame
upon our state in the face of the whole world. Our many enemies,
external as well as internal, are already profiting by the pogroms; they
are pointing their fingers at us and inciting against us saying that we
are not worthy of an independent national existence and that we deserve
to be again forcefully harnessed to the yoke of slavery.
I, your Commander-in-Chief, tell you that this very moment the question
of to be or not to be for our independent existence is being decided
before the International Tribunal.
Officers and soldiers! The judgement on this question rests in your
hands, so decide it by showing an armed fist against our enemies
remembering always that a clean cause demands clean hands. Be sure that
a severe and lawful punishment by a people's court will overtake all
enemies of our country; but remember also that vengeance - often the
result of want of careful consideration - is not the way of the Ukrainian
Cossacks. I most positively order that all those who are instigating you
to pogroms be thrust out of the army, and as traitors to the fatherland
be handed over to the court. Let the court punish them according to
their crimes by giving them the severest lawful penalty.
The Government of the Ukrainian Democratic Republic recognizing the harm
done to the state by the pogroms has issued an appeal to the whole
population of the Ukraine to withstand all attempts of the enemies who
might arouse it to anti-Jewish pogroms.
I command the whole army to obey this appeal and to provide for its
widest dissemination among comrades-in-arms and among the population.
This Army Order is to be read to all division, brigades, regiments,
garrisons and squadrons of the Dnieper and Dniester armies, as well as
the partisan detachments.
The Commander-in-Chief:
Petliura.
The Chief of Staff of the Supreme
Commander:
Junakiv.
F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations during
the Years of the Revolution (1917-1921): Collection of Documents and
Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956.
HOME DISINFORMATION PETLIURA 504 hits since 25Mar99
Symon Petliura Appeal to Ukrainian Army 27Aug1919 To sow discord among us
Let the death sentence overtake the perpetrators of pogroms and
provocateurs. I demand the strictest discipline from you so that not even
a hair of an innocent's head be touched.
Appeal of the Commander-in-Chief,
Petlura,
to the Ukrainian Army.
Soldiers of the Ukrainian Army!
The Ukrainian Republican People's Army of the Dnieper and Dniester
territories, now united into one army, is advancing victoriously, is
crushing the enemy, gaining each day new territories of the Ukraine to
liberate them from the Bolshevist brigands, bringing with them freedom to
the Ukrainian people as well as the certainty of happy days of living in
a peaceful and orderly state.
The Bolshevist anarchy and maladministration, the horrible Red terror,
the tyranny of the extraordinary inquiry commission [the Cheka] and of
other criminals for whom there is nothing sacred in life - have sapped
our people's strength to the utmost and have flooded our steppes with
human tears and with streams of blood of the innocent.
Amidst a peal of church bells, with bread and salt, with flowers and
tears of joy the weary, oppressed and pillaged Ukrainian people are
greeting you, their valiant warriors, as liberators from the yoke and
from Bolshevist atrocities, as flesh of their flesh and blood of their
blood.
A might national enthusiasm has seized our people at your entry into
villages and towns, and everywhere a festive reception is awaiting you
and all this has been brought about by you, officers and soldiers of the
Ukrainian army!
You are living now through glorious and never to be forgotten moments of
your life, and together with you all peoples inhabiting the Ukrainian
territory are experiencing the same enthusiasm.
The holy crusade for the liberation of the oppressed, regardless of their
nationality, for the rule of law and order under freedom and democracy
and the independence of our republic - these are the ideals in this
struggle.
The union of all democratic forces of all nationalities in the Ukraine,
standing for the independence of our Republic, and their participation in
the reconstruction of the state will warrant our victory over our
enemies, and will guarantee to us an independent life subject to no one.
Our enemies, however, are not sleeping but only watching our every step
in order to sow discord among us in one way or another, and thus to
frustrate the immediate realization of our people's efforts.
The Bolshevists themselves consider the Ukraine Moscow's inheritance
with the difference that formerly it was the heritage of black Moscow,
now of a Red one.
They see that the end of their rule in the Ukraine is already approaching
because the Ukrainian people themselves have risen against them: but they
do not give up yet their hope of subjugating the Ukrainian masses. By
provocations for which they are spending enormous sums of money they want
to divide us from within, hiring criminal elements who are inciting our
soldiers to all sorts of outrages and pogroms against the innocent Jewish
population; in this way they want to stamp our soldiers as
pogrom-mongers, although these soldiers are bringing liberty to all
peoples of the Ukraine.
Our enemies intend thus to split the Ukrainian and Jewish laboring masses
whose ways, in fact, have been bound together by three hundred years of
Russian tsarist yoke.
Our national army must bring equality, brotherhood and freedom to the
Ukrainian as well as the Jewish citizens who are also supporting actively
the government of the Ukrainian Democratic Republic. All their parties,
i.e.: Bund, Obyednantsi, Poalej-Zion and People's Party are standing on
the principles of the independence of the Ukraine, and are participating
in the reconstruction of the republic.
I know myself how the representatives of the Jewish population have
helped our army and supported our legal republican government.
The enemies of our state, the Bolshevists, are shooting down not only the
Ukrainian but also the Jewish people, depriving the others of the barest
means of living.
I have the highest esteem for the sacrifices made during this war upon
the altar of the fatherland by the Jewish population.
From the reports by the commanders of our brave divisions and corps as
well from reports by State Inspectors I have already learned that the
Jewish population brought help to our wounded and sick soldiers, in the
hospitals which had been built hastily 3-5 kilometers behind the
battlefronts.
I have been touched deeply by tears of thankfulness in the eyes of our
soldiers for the loving care and human aid given them by Jews, and I have
noted with satisfaction how the soldiers of our army were standing guard
at the shops and stores of Jews in order to protect them against
plunderers.
The restoration of a bridge at Starokonstantyniv - which had been
destroyed by the Bolshevists - by the Jewish population in an exceedingly
short time, as well as their help with foodstuffs and underwear testify
also to the loyal conduct of Jews in relation to our army.
I am convinced and I ardently hope that in the future such help on the
part of Jews will occur ever more frequently and that they will continue
to further the cause of peace in our country.
The Minister for Jewish Affairs has by a series of measures already
exercised some influence upon the Bolshevist circles of Jews so that many
of them no longer support Bolshevism, since they consider it now to be
their ruin.
Together with you I call upon the Jewish citizens to go with us and to
support wholeheartedly our army and our government; then we shall be able
to affirm that the government of the Ukrainian Democratic Republic and
you, its army, will finish that great responsible work which you are now
doing - destroying the power of the Bolshevists and building up our
independent republic in which each nationality enjoys full rights and a
peaceful life.
Officers and soldiers of the Ukrainian Army! The Ukrainian-Jewish
laboring masses see in you their liberation, and future generations will
not forget your services rendered to them; history will with pride record
on its pages your achievements in this struggle. Beware of provocations,
and have no mercy on provocateurs or on those who execute pogroms, or
incite the weakest among you to this action.
Let the death sentence overtake the perpetrators of pogroms and
provocateurs. I demand the strictest discipline from you so that not
even a hair of an innocent's head be touched.
Bear in mind that you are the elite sons of your great nation which wants
to live its independent life and to be subjugated by no one, and
therefore keep an unflinching watch on its interests as well as on the
interests of all those who help you and are well-disposed to you and to
the liberation of your people.
Those who are guilty before the Ukrainian people and before the republic,
no matter what their nationality, shall suffer the severest punishment
according to law prevailing in the territory of the Ukrainian republic;
to the innocent, however, you must bring liberation from the hated
Bolshevist yoke.
The Republic's and my own cordial thanks to and high esteem for your
martial bravery, devotion, and self-sacrifice which your offer upon the
altar of the fatherland, while liberating our Ukraine and the
nationalities living there - including the Jews - from the Bolshevists.
May God help us in the great and sacred cause of liberating the nations
from the heavy yoke of the Bolshevists!
August 27, 1919
Commander-in-Chief: Petlura.
(Ukraina, September 2, 1919.)
F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations during
the Years of the Revolution (1917-1921): Collection of Documents and
Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956, pp. 70-72.
HOME DISINFORMATION PETLIURA 836 hits since 23Mar99
Arnold Margolin The Ukraine and the Policy of Entente 1921 Russian and Ukrainian pogroms compared
If the beginning of the demoralization of the Ukrainian army was at its tail,
by Denikin's army the poison of demoralization came from the head.
EXTRACTS
from the book by Arnold Margolin
"The Ukraine and the policy of the Entente"
(Memorandum by a Jew and a citizen).
Publisher C. Efron. Berlin, 1921. Chapter XXIV. Pages 310-315.
Pogroms of the period of the Directorate, and of Denikin's Army. Parallels.
- Nations and Governments.
I have before me the report on pogroms, prepared by the Relief Committee
for the Victims of Pogroms, at the Russian Red Cross in Kiev. It is
stated in the report that there were no pogroms during the rule of the
Central Council, or of Skoropadsky, or during the first two months of the
Directorate's rule. Pogroms began after defeats that had been inflicted
upon the troops of the Directorate by the Bolsheviks. The heavier the
defeats and the farther Petlura's army was compelled to retreat, the more
cruel was their vengeance upon the innocent Jewish population whom they
identified with Communists. The slogan: "down with Jews and Communists,"
or "all Jews are Communists" were raised throughout the Ukraine and
provoked pogroms everywhere.
This explanation of the origin of pogroms is quite identical with the
statement made in Temnytsky's and Vasylko's telegram of August 1, 1919.
In the course of centuries the entire population of Russia had been
listening to accusations by the government of Jews being responsible for
all the evils in the world. The ignorant masses believed even the
legends about the ritual murder of Christian children by Jews, while even
the "specialists" in this subject were declaring that Jews kill only
boys. Karab-Tchevsky tells us in the first part of his memoirs ("What My
Eyes Saw") that his mother had already in his childhood read to him the
New Testament, and when it came to the torturing of Jesus Christ, his
nurse or housemaid would exclaim: "the hideous Jews, they surely killed
Christ by torture!" (p. 23).
The pogroms of the years 1880 in Kishinev and Homel, came as the result
of false rumors and of promises of exemption from punishment for
plundering during three days. This time, however, the participation of
Jews in the Bolshevist movement was no more a rumor, but a fact which it
was very easy to exaggerate. On the other side, the impunity for
plundering lasted this time not only three days, but indefinitely on
account of the absence of any authority that could stop the plundering.
For, what authority could exist during the panic of retreat before
Trotsky's army? ... Under such conditions a favorable atmosphere was
created for the rapacious instincts of the demoralized segments of the
army, as well as for the development of the ideological barbarity of
Semesenko and for the provocateurs from the Russian Black-Hundred camp,
who were pogrommongers by conviction and wished at the same time to
discredit the Ukrainian movement by branding it as being guilty of
pogroms.
All this, of course, is not justification, but only one of many
explanations of the origin of pogroms during the period of the
Directorate.
Quite a different picture is displayed by the comparison of this period
of pogroms with the pogroms by Denikin's army. Here is no question of
retreat and of chaos that is connected with retreat. On the contrary,
the more successful the advance, the more organized and stronger is the
propaganda from above and the more according to plan the pogroms are
developed. If the beginning of the demoralization of the Ukrainian army
was at its tail, by Denikin's army the poison of demoralization came from
the head. As we have seen already, the Denikin officers openly declared
that they were fighting not against the Bolsheviks, but against the Jews.
To be sure, there were also in Denikin's army many persons of a purely
rapacious type. But the most horrible thing was the deeply rooted
anti-Semitism of the chiefs that surrounded Denikin, and their sadistic
hate of Jews. I, personally, am not inclined to assume that Denikin
himself wanted pogroms. Even to Denikin, in spite of his anti-Semitism,
it was impossible not to see the fatal results of pogroms for his army.
But he, too, was powerless on the question of pogroms, nor had he any
inclination to come forward in defense of the Jews.
The second characteristic feature which distinguishes the very course of
the pogroms in one area from the other consists in the fact that in
Petlura's army, we surely find cases when some individual persons or
groups succeeded in preventing or stopping pogroms. Two such cases are
cited by Temkin in his report, the other two cases are given in the
report of the Relief Committee for the Victims of Pogroms. Red Army
soldiers arranged an anti-Jewish pogrom in the city of Korosten in March
13, 1919. When the soldiers of Petlura's army which was at that time
advancing, reached the city, they stopped the pogroms. In Bila Tserkva
the Ukrainian army - having expelled in August the Denikin troops of Gen.
Shkuro and then the Red troops, who one after another plundered and
massacred the population - behaved in full dignity until in turn they
were substituted by Zeleny's bands that immediately arranged a pogrom.
Later the unfortunate town was attacked by Sokolov's bands, after which
the Ukrainian troops again succeeded in restoring order for a short time.
Lubny escaped a pogrom thanks to the fact that a hundred men were found
in the Ukrainian ranks, who with their arms stood in the way of the
pogrommakers. Fourteen of the defenders fell in the fight but the town
was saved. While reading the story about Lubny in this part of the
report, I recalled the year 1905 when a City Committee of Defense was
organized in Lubny, which also saved the city from a pogrom.
Such facts were unknown in Denikin's army. Here the "guilty" of such
patronage and defense of Jews were punished with dismissal from their
posts.
The third feature, a very disadvantageous one for Denikin's army and
government, appears as a result of the comparison of the declarations by
the Ukrainian government on the Jewish question, of laws concerning
personal-national autonomy and Jewish Communities on the one hand, with
the clauses restricting the number of Jews in educational institutions as
well as in civil and military services in Denikin's empire - on the other
hand. Here, on the part of the Ukrainian government, an effort to draw
on representatives of Jews in all levels of government posts, and over
there - in Denikin's camp - removal of Jewish officers from the army, and
of Jewish officials from district and city offices. And this - in spite
of the fact that so many Jews joined voluntarily at the very beginning
Koltchak's and Denikin's armies. And how many Jews having been brought
up with a Russian culture died for Russia that had been always a
stepmother to them? On the other hand, how small a group of us, Jews,
joined the Ukrainian movement at the beginning of the second revolution!
Of course, there was nothing strange in it. Wilson's points had been
declared but recently, and the realization of the right of
self-determination by the Ukrainian people wa such a new and fresh event
that not only the average Jewish citizen, but also the intellectuals,
with few exceptions, did not digest or understand all that had happened.
But the fact remains, Jews were represented by a very considerable number
in the ranks both of the Bolsheviks and, at the beginning, of Denikin's
army. The Ukrainian movement was joined only by a few Jews.
The representatives of Russian and Jewish capital and heavy industry were
marching hand-in-hand with the Volunteer Armies of Denikin, Yudenitch,
and Koltchak. And even after all those pogroms committed by Denikin's
army, the Jewish capitalists and industrialists followed the call of his
successor Wrangel, and joined him
Finally, one more feature out of many others that distinguish the
Ukrainian Movement from that of Denikin: An anti-Jewish pogrom was openly
carried on in Kiev in the presence of Denikin's generals, Drahomirov and
Bredov. Never did happen anything like that, wherever the Directorate
set up headquarters, neither in Kiev, nor in Vynnytsia, nor in
Kamanets-Pololsk. The Kiev population knows from bitter experience the
difference between those two regimes.
Nevertheless, in spite of all these quite essential differences, here
abroad the pogroms of the followers of Petlura are much more known than
those perpetrated by Denikin's army, although the latter numerically and
qualitatively surpassed considerably the former. This is to be explained
not only by the propaganda of the Russian groups which have old
connections and larger means in Europe and America, but also by the
incontestable fact that the first series of pogroms attracted the
greatest attention and brought forth the strongest expression of
dissatisfaction on the part of the public.
(In F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations
during the Years of the Revolution (1917-1921): Collection of Documents
and Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956, pp. 48-51)
HOME DISINFORMATION 60 MINUTES 989 hits since 12Aug98
Ginsburg U.S. Court of Appeals 11Aug98 Serafyn vs. Federal Communications Commission
Serafyn also submitted evidence that "60 Minutes" had no policy against
news distortion and indeed that management considered some distortion
acceptable. For example, according to the Washington Post, Mike
Wallace, a longtime reporter for "60 Minutes," told an interviewer: "You
don't like to baldly lie, but I have."
An introduction to the United States Court of Appeals decision below can
be found in an Associated Press article by Jeannine Aversa which is on
the Ukrainian Archive.
The original of the Court of Appeals decision below can be found on the
United States Court of Appeals web site whose home page is at
www.cadc.uscourts.gov and where the decision can either be accessed by
following links from the Court of Appeals home page, or else accessed
directly at www.cadc.uscourts.gov/common/opinions/199808/95-1385a.txt.
As page numbering was not indicated in the Court of Appeals web site
version, it could not be inserted below, although page boundaries could
be inferred and are indicated below by means of horizontal lines.
The version below inserts clickable yellow CONTENTS boxes to remedy the
general problem of a reader's losing track of where he is within a large
document when reading it on screen, and to facilitate moving effortlessly
from one part of the document to another.
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
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 1998 Decided August 11, 1998
No. 95-1385
Alexander J. Serafyn, et al.,
Appellants
v.
Federal Communications Commission,
Appellee
CBS Inc., et al.,
Intervenors
Consolidated with
Nos. 95-1440, 95-1608
Appeal of Orders of the
Federal Communications Commission
Arthur V. Belendiuk argued the cause and filed the briefs
for appellants. Shaun A. Maher and Donna T. Pochoday
entered appearances.
C. Grey Pash, Jr., Counsel, Federal Communications Com
mission, argued the cause for appellee, with whom Christo
pher J. Wright, General Counsel, and Daniel M. Armstrong,
Associate General Counsel, were on the brief.
Richard E. Wiley, Lawrence W. Secrest, III, James R.
Bayes, and Daniel E. Troy were on the brief for intervenors
CBS Inc. and Westinghouse Electric Corporation. John
Lane Jr., Ramsey L. Woodworth, and Robert M. Gurss
entered appearances.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Alexander Serafyn petitioned the
Federal Communications Commission to deny or to set for
hearing the application of CBS for a new station license.
Serafyn objected that CBS was not fit to receive a license
because it had aired a news program in which it intentionally
distorted the situation in Ukraine by claiming that most
Ukrainians are anti-Semitic. The Commission summarily
denied the petition, holding that Serafyn had not submitted
enough evidence to warrant a hearing. Because the Commis
sion neither applied the correct standard nor provided a
reasoned explanation in its decision, we vacate its order and
remand the matter to the agency for further proceedings.
Serafyn also petitioned to revoke CBS's existing licenses on
the ground that CBS made a material misrepresentation to
the Commission when it gave an affiliated station false infor
mation regarding its handling of viewer letters complaining
about the same program. The Commission denied that peti
tion on the ground that Serafyn had not alleged that CBS
intentionally misrepresented the matter to the Commission.
We uphold the Commission's decision in this matter as rea
sonable.
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
I. Background
Section 309(a) of the Communications Act provides that the
Federal Communications Commission may grant a broadcast
license only when it determines that doing so would serve the
"public interest, convenience, and necessity." 47 U.S.C.
s 309(a). Under s 309(d) of the Act any interested person
may petition the FCC to deny or to set for hearing any
application for a broadcast license or to revoke an existing
broadcaster's license. The petition must contain
specific allegations of fact sufficient to show that ... a
grant of the application would be prima facie inconsistent
with [the public interest, convenience, and necessity].
Such allegations of fact shall ... be supported by affida
vit of a person ... with personal knowledge thereof.
Id. The FCC must hold a hearing if it finds that the
application presents a "substantial and material question of
fact" or if it is otherwise unable to conclude that granting the
application would serve the public interest. See s 309(e).
As the Commission interprets it, s 309 erects a two-step
barrier to a hearing: (1) a petition must contain specific
allegations of fact that, taken as true, make out a prima facie
case that grant of the application would not serve the public
interest; and (2) the allegations, taken together with any
opposing evidence before the Commission, must still raise a
substantial and material question of fact as to whether grant
of the application would serve the public interest. See Astro
line Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C.
Cir. 1988) (describing two-step test). At the first step, "[t]he
Commission's inquiry ... is much like that performed by a
trial judge considering a motion for a directed verdict: if all
the supporting facts alleged in the affidavits were true, could
a reasonable factfinder conclude that the ultimate fact in
dispute had been established." Gencom, Inc. v. FCC, 832
F.2d 171, 181 (D.C. Cir. 1987). At the second step, a substan
tial and material question is raised when "the totality of the
evidence arouses a sufficient doubt on the [question whether
grant of the application would serve the public interest] that
further inquiry is called for."
Citizens for Jazz on WRVR,
Inc. v. FCC, 775 F.2d 392, 395 (D.C. Cir. 1985).
In determining whether an allegation of news distortion
raises a question about the licensee's ability to serve the
public interest, the Commission analyzes both the substantial
ity and the materiality of the allegation. The Commission
regards an allegation as material only if the licensee itself is
said to have participated in, directed, or at least acquiesced in
a pattern of news distortion. The Commission stated its
policy about 30 years ago as follows:
[W]e do not intend to defer action on license renewals
because of the pendency of complaints of [news distor
tion]--unless the extrinsic evidence of possible deliberate
distortion or staging of the news which is brought to our
attention, involves the licensee, including its principals,
top management, or news management.... [I]f the
allegations of staging ... simply involve news employees
of the station, we will, in appropriate cases ... inquire
into the matter, but unless our investigation reveals
involvement of the licensee or its management there will
be no hazard to the station's licensed status....
.... Rather, the matter should be referred to the
licensee for its own investigation and appropriate han
dling.
.... Rigging or slanting the news is a most heinous
act against the public interest .... [b]ut in this democra
cy, no Government agency can authenticate the news, or
should try to do so.
Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a
footnote the Commission added:
[W]e stress that the licensee must have a policy of
requiring honesty of its news staff and must take reason
able precautions to see that news is fairly handled.
An allegation of distortion is "substantial" when it meets
two conditions, as we summarized in an earlier case.
[F]irst, ... the distortion ... [must] be deliberately
intended to slant or mislead. It is not enough to dispute
the accuracy of a news report ... or to question the
legitimate editorial decisions of the broadcaster....
The allegation of deliberate distortion must be supported
by "extrinsic evidence," that is, evidence other than the
broadcast itself, such as written or oral instructions from
station management, outtakes, or evidence of bribery.
Second, the distortion must involve a significant event
and not merely a minor or incidental aspect of the news
report.... [T]he Commission tolerates ... practices
[such as staging and distortion] unless they "affect[ ] the
basic accuracy of the events reported."
Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming
Commission's holding that CBS's "60 Minutes" had not dis
torted news by staging insurance investigator's interrogation
of fraudulent claimant; because she "actually did participate
in the fraud and did confess, even if not in precisely the
manner portrayed, the 'basic accuracy of the events reported'
... has not been distorted").
As we noted in Galloway, the Commission's policy makes
its investigation of an allegation of news distortion "extremely
limited [in] scope. But within the constraints of the Constitu
tion, Congress and the Commission may set the scope of
broadcast regulation; it is not the role of this court to
question the wisdom of their policy choices." Id. at 21.
In 1994 CBS produced and broadcast a controversial seg
ment of "60 Minutes" entitled "The Ugly Face of Freedom,"
about modern Ukraine. The broadcast angered some viewers
who believed that many elements of the program had been
designed to give the impression that all Ukrainians harbor a
strongly negative attitude toward Jews. For example, inter
viewer Morley Safer suggested that Ukrainians were "genet
ically anti-Semitic" and "uneducated peasants, deeply super
stitious." Also, soundbites from an interview with the Chief
Rabbi of Lviv, Yaakov Bleich, gave viewers the impression
that he believes all Ukrainians are anti-Semites who want all
Jews to leave Ukraine. In addition, CBS overlaid the sound
of marching boots on a film clip of Ukrainian Boy Scouts
walking to church and introduced it in such a way as to give
viewers the impression that they were seeing "a neo-Nazi,
Hitler Youth-like movement." The narrator also stated that
the Ukrainian Galicia Division had helped in the roundup and
execution of Jews from Lviv in 1941, though this Division was
not in fact even formed until 1943 and therefore could not
possibly have participated in the deed. Perhaps most egre
giously, when Ukrainian speakers used the term "zhyd,"
which means simply "Jew," they were translated as having
said "kike," which is a derogatory term.
After the broadcast interviewees and members of the
Ukrainian-American community deluged CBS with letters.
In his letter Rabbi Bleich stated "unequivocally" that his
"words were quoted out of the context that they were said"
and that "the CBS broadcast was unbalanced" and "did not
convey the true state of affairs in Ukraine." Cardinal Luba
chivsky, the head of the Ukrainian Greek Catholic Church,
who had also been interviewed, both sent a letter to CBS and
released a statement to the press. In the latter he stated,
"[M]y office was misled as to the actual thrust of the report.
Mr. Fager [the producer] presented the piece as one about
'post-communist Ukraine.' ... I can only deduce that the
goal of the report was to present all Western Ukrainians as
rabid anti-semites." Many other viewers pointed out histori
Poalej-Zion Party.
Petlura addressed the Delegation with a short speech in which he declared
that he himself as well as the government were always standing on the
side of the Jewish people, and were waging war against those elements who
incited the unenlightened masses to various excesses against Jews. The
Commander-in-Chief invited the representatives of the Jewish people to a
closer cooperation of both peoples for the good of the Ukrainian State,
for, only with united forces would it be possible to look after the
interests of both peoples, which had always been identical.
The Jewish delegation assured the Supreme Commander that all strata of
the Jewish people, hand-in-hand with the Ukrainian people, would defend
the independent Ukraine, because only a Ukrainian democratic government
could guarantee full rights to the Jews. The delegation asked for
granting of an opportunity to Jewish intellectuals to work toward
strengthening Ukrainian statehood, and for protection of the Jewish
population against the excesses which have taken place as the result of
provocation on the part of various Russian reactionaries and Polish
imperialists who thus wish to discredit the whole Ukrainian cause in the
eyes of Europe.
Petlura pledged himself to apply the severest measures in suppressing the
crimes of the anti-Jewish agitators, and asked the delegation in
particular to exert their influence also upon the Jewish population
behind the battlefront that they should support the Ukrainian Army in its
struggle against the Bolshevists.
(Trudowa Hromada, July 18, 1919.)
HOME DISINFORMATION PETLIURA 486 hits since 25Mar99
Symon Petliura Decree of Cabinet 18Aug1919 Enemies organize pogroms
The Ukrainian and Jewish peoples both of whom work at the
reconstruction of the Ukrainian Democratic Republic, find themselves in
the face of the common enemies who are trying to sow discord and
anarchy in order to destroy the Ukrainian Republic which they hate.
Decree of the Cabinet Council
of the
Ukrainian Democratic Republic.
August 18, 1919.
(Record of the Proceedings No. 171)
The Cabinet Council, after hearing the report of the Minister for Jewish
Affairs, Mr. P.A. Krasny, on the situation as it appeared in connection
with the anti-Jewish pogroms in the Ukraine - particularly in Kiev and
in connection with the reaction of public opinion abroad, resolve as
follows:
The Ukrainian and Jewish peoples both of whom work at the reconstruction
of the Ukrainian Democratic Republic, find themselves in the face of the
common enemies who are trying to sow discord and anarchy in order to
destroy the Ukrainian Republic which they hate. For this purpose your
enemies organize pogroms, spin provocative news about pogroms in the
Ukraine so as to exploit them for their people - with the help of the
Polish ruling classes, or of the Denikin reactionaries. In deliberately
lying and provocative reports they are changing arbitrarily the places of
the pogroms which are arranged in the Ukraine by the Bolsheviks and by
the reactionary clique who are in close connection with Denikin's and
Polish reactionary circles' secret plans. In mendacious publications and
in public letters addressed to the leading representatives of European
countries, all these happenings are charged to the account of the
government of the Ukrainian Democratic Republic, although its aim is to
suppress vigorously all pogroms.
In view of the fact that such provocations and aims of the Polish and
Denikin reactionaries endanger the struggle for freedom of the Ukrainian
Republic as well as the peaceful coexistence of the peoples of the
Ukraine, the government of the Ukrainian Democratic Republic have set
themselves the most urgent task of doing away with all possibility of
provocations, pogroms or other excesses, and of calling to account all
persons hostile to the Ukrainian State, who are doing the treacherous
pogrom work in the Ukraine.
The Government has decided:
1. To make at once a proposal to the Commander-in-Chief, Petlura that he
issue an order by which all commanders of the respective bodies of
troops, from the lowest to the highest ones, would be called to account
for negligence and tolerating pogrom excesses, and that they would be
immediately arrested as traitors and handed over to a special
court-martial which would impose upon them the severest penalty,
including the death sentence.
2. To issue an order in the name of the Government and in the name of the
Commander-in-Chief to the Ukrainian partisans on the other side of the
battlefront that they also 1. should take a vigorous action against the
instigators of pogroms, 2. fight against particular treacherous pogrom
bands and annihilate them - always remembering that the army of the
Ukrainian Democratic Republic does not tolerate pogroms on its victorious
march and inflicts the severe punishment upon all the guilty ones.
3. To appoint immediately a special government commission with extensive
powers of investigating pogroms and of combating them; the said
commission to be composed of one representative from the following
offices: The Commander-in-Chief, the Inspector General, the Minister of
Justice, the Minister of Internal Affairs, and the Minister for Jewish
Affairs. The Commission should proceed at once to the frontline to the
area of liberated cities and other places of the Ukrainian Democratic
Republic. The Commander-in-Chief should be advised to order an
authorization with full powers to the Commission.
4. Through inspections, the bodies of troops and the commissioners of the
Ukrainian Democratic Republic should be informed about the foreign
provocative work of the enemies of the Ukrainian Republic, who exploit
the pogrom excesses for their own purposes.
5. By means of a special report from the Prime Minister, to inform the
Directorate of the Ukrainian Democratic Republic of this Decree, and to
manifest the Government's firm determination and effort in the direction
of removing completely any possibility of pogroms in the Ukraine.
6. To issue an appropriate proclamation of the government to the people.
7. The Minister for Press and Information should initiate an intensive
campaign against pogrom arrangers; inform the foreign press and foreign
public about the actual state of affairs, and protest against the
outrageous slandering of the government of the Ukrainian Democratic
Republic.
8. The Minister of Justice should at once take steps that all those who
are guilty of pogrom excesses, i.e. those who already have been arrested
as well as those who may be arrested, should be handed over to a special
court.
9. This Decree is to be made public.
(Ukraina, August 21, 1919.)
HOME DISINFORMATION PETLIURA 552 hits since 23Mar99
Symon Petliura Army Order No. 131 26Aug1919 Do not stain those deeds
It is time for you to understand that the peaceful Jewish population, their
children and women the same as ourselves have been oppressed and
deprived of national freedom. They can not be alienated from us, they
have of old been always with us and they have shared with us their joys
and sorrows.
Army Order of the Supreme Command
of the Ukrainian Democratic Republic,
August 26, 1919.
No. 131
Officers and Soldiers!
It is time for you to realize that the Jews together with the majority of
the Ukrainian population have recognized the evil of the
Bolshevist-Communist invasion, and know already where the truth lies.
The most important Jewish parties, such as: "Bund", "United Jewish
Socialists", "Poalej-Zion" and "People's Party", have decidedly placed
themselves on the side of the Ukrainian independent state and are working
together hand-in-hand for its good.
It is time for you to understand that the peaceful Jewish population,
their children and women the same as ourselves have been oppressed and
deprived of national freedom. They can not be alienated from us, they
have of old been always with us and they have shared with us their joys
and sorrows.
The gallant army which brings brotherhood, equality, and freedom to all
peoples of the Ukraine should not be lending an ear to various
adventurers and provocateurs who long for human blood. Likewise, the
Army should not be a party to bringing a hard lot on the Jews. Whoever
is guilty of permitting such a heavy crime is a traitor and enemy of the
country and must be thrust out of human society.
Officers and soldiers! The whole world cannot but admire our heroic
deeds in the struggle for freedom. Do not stain those deeds - not even
accidentally - by disgraceful actions and do not bring down burning shame
upon our state in the face of the whole world. Our many enemies,
external as well as internal, are already profiting by the pogroms; they
are pointing their fingers at us and inciting against us saying that we
are not worthy of an independent national existence and that we deserve
to be again forcefully harnessed to the yoke of slavery.
I, your Commander-in-Chief, tell you that this very moment the question
of to be or not to be for our independent existence is being decided
before the International Tribunal.
Officers and soldiers! The judgement on this question rests in your
hands, so decide it by showing an armed fist against our enemies
remembering always that a clean cause demands clean hands. Be sure that
a severe and lawful punishment by a people's court will overtake all
enemies of our country; but remember also that vengeance - often the
result of want of careful consideration - is not the way of the Ukrainian
Cossacks. I most positively order that all those who are instigating you
to pogroms be thrust out of the army, and as traitors to the fatherland
be handed over to the court. Let the court punish them according to
their crimes by giving them the severest lawful penalty.
The Government of the Ukrainian Democratic Republic recognizing the harm
done to the state by the pogroms has issued an appeal to the whole
population of the Ukraine to withstand all attempts of the enemies who
might arouse it to anti-Jewish pogroms.
I command the whole army to obey this appeal and to provide for its
widest dissemination among comrades-in-arms and among the population.
This Army Order is to be read to all division, brigades, regiments,
garrisons and squadrons of the Dnieper and Dniester armies, as well as
the partisan detachments.
The Commander-in-Chief:
Petliura.
The Chief of Staff of the Supreme
Commander:
Junakiv.
F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations during
the Years of the Revolution (1917-1921): Collection of Documents and
Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956.
HOME DISINFORMATION PETLIURA 504 hits since 25Mar99
Symon Petliura Appeal to Ukrainian Army 27Aug1919 To sow discord among us
Let the death sentence overtake the perpetrators of pogroms and
provocateurs. I demand the strictest discipline from you so that not even
a hair of an innocent's head be touched.
Appeal of the Commander-in-Chief,
Petlura,
to the Ukrainian Army.
Soldiers of the Ukrainian Army!
The Ukrainian Republican People's Army of the Dnieper and Dniester
territories, now united into one army, is advancing victoriously, is
crushing the enemy, gaining each day new territories of the Ukraine to
liberate them from the Bolshevist brigands, bringing with them freedom to
the Ukrainian people as well as the certainty of happy days of living in
a peaceful and orderly state.
The Bolshevist anarchy and maladministration, the horrible Red terror,
the tyranny of the extraordinary inquiry commission [the Cheka] and of
other criminals for whom there is nothing sacred in life - have sapped
our people's strength to the utmost and have flooded our steppes with
human tears and with streams of blood of the innocent.
Amidst a peal of church bells, with bread and salt, with flowers and
tears of joy the weary, oppressed and pillaged Ukrainian people are
greeting you, their valiant warriors, as liberators from the yoke and
from Bolshevist atrocities, as flesh of their flesh and blood of their
blood.
A might national enthusiasm has seized our people at your entry into
villages and towns, and everywhere a festive reception is awaiting you
and all this has been brought about by you, officers and soldiers of the
Ukrainian army!
You are living now through glorious and never to be forgotten moments of
your life, and together with you all peoples inhabiting the Ukrainian
territory are experiencing the same enthusiasm.
The holy crusade for the liberation of the oppressed, regardless of their
nationality, for the rule of law and order under freedom and democracy
and the independence of our republic - these are the ideals in this
struggle.
The union of all democratic forces of all nationalities in the Ukraine,
standing for the independence of our Republic, and their participation in
the reconstruction of the state will warrant our victory over our
enemies, and will guarantee to us an independent life subject to no one.
Our enemies, however, are not sleeping but only watching our every step
in order to sow discord among us in one way or another, and thus to
frustrate the immediate realization of our people's efforts.
The Bolshevists themselves consider the Ukraine Moscow's inheritance
with the difference that formerly it was the heritage of black Moscow,
now of a Red one.
They see that the end of their rule in the Ukraine is already approaching
because the Ukrainian people themselves have risen against them: but they
do not give up yet their hope of subjugating the Ukrainian masses. By
provocations for which they are spending enormous sums of money they want
to divide us from within, hiring criminal elements who are inciting our
soldiers to all sorts of outrages and pogroms against the innocent Jewish
population; in this way they want to stamp our soldiers as
pogrom-mongers, although these soldiers are bringing liberty to all
peoples of the Ukraine.
Our enemies intend thus to split the Ukrainian and Jewish laboring masses
whose ways, in fact, have been bound together by three hundred years of
Russian tsarist yoke.
Our national army must bring equality, brotherhood and freedom to the
Ukrainian as well as the Jewish citizens who are also supporting actively
the government of the Ukrainian Democratic Republic. All their parties,
i.e.: Bund, Obyednantsi, Poalej-Zion and People's Party are standing on
the principles of the independence of the Ukraine, and are participating
in the reconstruction of the republic.
I know myself how the representatives of the Jewish population have
helped our army and supported our legal republican government.
The enemies of our state, the Bolshevists, are shooting down not only the
Ukrainian but also the Jewish people, depriving the others of the barest
means of living.
I have the highest esteem for the sacrifices made during this war upon
the altar of the fatherland by the Jewish population.
From the reports by the commanders of our brave divisions and corps as
well from reports by State Inspectors I have already learned that the
Jewish population brought help to our wounded and sick soldiers, in the
hospitals which had been built hastily 3-5 kilometers behind the
battlefronts.
I have been touched deeply by tears of thankfulness in the eyes of our
soldiers for the loving care and human aid given them by Jews, and I have
noted with satisfaction how the soldiers of our army were standing guard
at the shops and stores of Jews in order to protect them against
plunderers.
The restoration of a bridge at Starokonstantyniv - which had been
destroyed by the Bolshevists - by the Jewish population in an exceedingly
short time, as well as their help with foodstuffs and underwear testify
also to the loyal conduct of Jews in relation to our army.
I am convinced and I ardently hope that in the future such help on the
part of Jews will occur ever more frequently and that they will continue
to further the cause of peace in our country.
The Minister for Jewish Affairs has by a series of measures already
exercised some influence upon the Bolshevist circles of Jews so that many
of them no longer support Bolshevism, since they consider it now to be
their ruin.
Together with you I call upon the Jewish citizens to go with us and to
support wholeheartedly our army and our government; then we shall be able
to affirm that the government of the Ukrainian Democratic Republic and
you, its army, will finish that great responsible work which you are now
doing - destroying the power of the Bolshevists and building up our
independent republic in which each nationality enjoys full rights and a
peaceful life.
Officers and soldiers of the Ukrainian Army! The Ukrainian-Jewish
laboring masses see in you their liberation, and future generations will
not forget your services rendered to them; history will with pride record
on its pages your achievements in this struggle. Beware of provocations,
and have no mercy on provocateurs or on those who execute pogroms, or
incite the weakest among you to this action.
Let the death sentence overtake the perpetrators of pogroms and
provocateurs. I demand the strictest discipline from you so that not
even a hair of an innocent's head be touched.
Bear in mind that you are the elite sons of your great nation which wants
to live its independent life and to be subjugated by no one, and
therefore keep an unflinching watch on its interests as well as on the
interests of all those who help you and are well-disposed to you and to
the liberation of your people.
Those who are guilty before the Ukrainian people and before the republic,
no matter what their nationality, shall suffer the severest punishment
according to law prevailing in the territory of the Ukrainian republic;
to the innocent, however, you must bring liberation from the hated
Bolshevist yoke.
The Republic's and my own cordial thanks to and high esteem for your
martial bravery, devotion, and self-sacrifice which your offer upon the
altar of the fatherland, while liberating our Ukraine and the
nationalities living there - including the Jews - from the Bolshevists.
May God help us in the great and sacred cause of liberating the nations
from the heavy yoke of the Bolshevists!
August 27, 1919
Commander-in-Chief: Petlura.
(Ukraina, September 2, 1919.)
F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations during
the Years of the Revolution (1917-1921): Collection of Documents and
Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956, pp. 70-72.
HOME DISINFORMATION PETLIURA 836 hits since 23Mar99
Arnold Margolin The Ukraine and the Policy of Entente 1921 Russian and Ukrainian pogroms compared
If the beginning of the demoralization of the Ukrainian army was at its tail,
by Denikin's army the poison of demoralization came from the head.
EXTRACTS
from the book by Arnold Margolin
"The Ukraine and the policy of the Entente"
(Memorandum by a Jew and a citizen).
Publisher C. Efron. Berlin, 1921. Chapter XXIV. Pages 310-315.
Pogroms of the period of the Directorate, and of Denikin's Army. Parallels.
- Nations and Governments.
I have before me the report on pogroms, prepared by the Relief Committee
for the Victims of Pogroms, at the Russian Red Cross in Kiev. It is
stated in the report that there were no pogroms during the rule of the
Central Council, or of Skoropadsky, or during the first two months of the
Directorate's rule. Pogroms began after defeats that had been inflicted
upon the troops of the Directorate by the Bolsheviks. The heavier the
defeats and the farther Petlura's army was compelled to retreat, the more
cruel was their vengeance upon the innocent Jewish population whom they
identified with Communists. The slogan: "down with Jews and Communists,"
or "all Jews are Communists" were raised throughout the Ukraine and
provoked pogroms everywhere.
This explanation of the origin of pogroms is quite identical with the
statement made in Temnytsky's and Vasylko's telegram of August 1, 1919.
In the course of centuries the entire population of Russia had been
listening to accusations by the government of Jews being responsible for
all the evils in the world. The ignorant masses believed even the
legends about the ritual murder of Christian children by Jews, while even
the "specialists" in this subject were declaring that Jews kill only
boys. Karab-Tchevsky tells us in the first part of his memoirs ("What My
Eyes Saw") that his mother had already in his childhood read to him the
New Testament, and when it came to the torturing of Jesus Christ, his
nurse or housemaid would exclaim: "the hideous Jews, they surely killed
Christ by torture!" (p. 23).
The pogroms of the years 1880 in Kishinev and Homel, came as the result
of false rumors and of promises of exemption from punishment for
plundering during three days. This time, however, the participation of
Jews in the Bolshevist movement was no more a rumor, but a fact which it
was very easy to exaggerate. On the other side, the impunity for
plundering lasted this time not only three days, but indefinitely on
account of the absence of any authority that could stop the plundering.
For, what authority could exist during the panic of retreat before
Trotsky's army? ... Under such conditions a favorable atmosphere was
created for the rapacious instincts of the demoralized segments of the
army, as well as for the development of the ideological barbarity of
Semesenko and for the provocateurs from the Russian Black-Hundred camp,
who were pogrommongers by conviction and wished at the same time to
discredit the Ukrainian movement by branding it as being guilty of
pogroms.
All this, of course, is not justification, but only one of many
explanations of the origin of pogroms during the period of the
Directorate.
Quite a different picture is displayed by the comparison of this period
of pogroms with the pogroms by Denikin's army. Here is no question of
retreat and of chaos that is connected with retreat. On the contrary,
the more successful the advance, the more organized and stronger is the
propaganda from above and the more according to plan the pogroms are
developed. If the beginning of the demoralization of the Ukrainian army
was at its tail, by Denikin's army the poison of demoralization came from
the head. As we have seen already, the Denikin officers openly declared
that they were fighting not against the Bolsheviks, but against the Jews.
To be sure, there were also in Denikin's army many persons of a purely
rapacious type. But the most horrible thing was the deeply rooted
anti-Semitism of the chiefs that surrounded Denikin, and their sadistic
hate of Jews. I, personally, am not inclined to assume that Denikin
himself wanted pogroms. Even to Denikin, in spite of his anti-Semitism,
it was impossible not to see the fatal results of pogroms for his army.
But he, too, was powerless on the question of pogroms, nor had he any
inclination to come forward in defense of the Jews.
The second characteristic feature which distinguishes the very course of
the pogroms in one area from the other consists in the fact that in
Petlura's army, we surely find cases when some individual persons or
groups succeeded in preventing or stopping pogroms. Two such cases are
cited by Temkin in his report, the other two cases are given in the
report of the Relief Committee for the Victims of Pogroms. Red Army
soldiers arranged an anti-Jewish pogrom in the city of Korosten in March
13, 1919. When the soldiers of Petlura's army which was at that time
advancing, reached the city, they stopped the pogroms. In Bila Tserkva
the Ukrainian army - having expelled in August the Denikin troops of Gen.
Shkuro and then the Red troops, who one after another plundered and
massacred the population - behaved in full dignity until in turn they
were substituted by Zeleny's bands that immediately arranged a pogrom.
Later the unfortunate town was attacked by Sokolov's bands, after which
the Ukrainian troops again succeeded in restoring order for a short time.
Lubny escaped a pogrom thanks to the fact that a hundred men were found
in the Ukrainian ranks, who with their arms stood in the way of the
pogrommakers. Fourteen of the defenders fell in the fight but the town
was saved. While reading the story about Lubny in this part of the
report, I recalled the year 1905 when a City Committee of Defense was
organized in Lubny, which also saved the city from a pogrom.
Such facts were unknown in Denikin's army. Here the "guilty" of such
patronage and defense of Jews were punished with dismissal from their
posts.
The third feature, a very disadvantageous one for Denikin's army and
government, appears as a result of the comparison of the declarations by
the Ukrainian government on the Jewish question, of laws concerning
personal-national autonomy and Jewish Communities on the one hand, with
the clauses restricting the number of Jews in educational institutions as
well as in civil and military services in Denikin's empire - on the other
hand. Here, on the part of the Ukrainian government, an effort to draw
on representatives of Jews in all levels of government posts, and over
there - in Denikin's camp - removal of Jewish officers from the army, and
of Jewish officials from district and city offices. And this - in spite
of the fact that so many Jews joined voluntarily at the very beginning
Koltchak's and Denikin's armies. And how many Jews having been brought
up with a Russian culture died for Russia that had been always a
stepmother to them? On the other hand, how small a group of us, Jews,
joined the Ukrainian movement at the beginning of the second revolution!
Of course, there was nothing strange in it. Wilson's points had been
declared but recently, and the realization of the right of
self-determination by the Ukrainian people wa such a new and fresh event
that not only the average Jewish citizen, but also the intellectuals,
with few exceptions, did not digest or understand all that had happened.
But the fact remains, Jews were represented by a very considerable number
in the ranks both of the Bolsheviks and, at the beginning, of Denikin's
army. The Ukrainian movement was joined only by a few Jews.
The representatives of Russian and Jewish capital and heavy industry were
marching hand-in-hand with the Volunteer Armies of Denikin, Yudenitch,
and Koltchak. And even after all those pogroms committed by Denikin's
army, the Jewish capitalists and industrialists followed the call of his
successor Wrangel, and joined him
Finally, one more feature out of many others that distinguish the
Ukrainian Movement from that of Denikin: An anti-Jewish pogrom was openly
carried on in Kiev in the presence of Denikin's generals, Drahomirov and
Bredov. Never did happen anything like that, wherever the Directorate
set up headquarters, neither in Kiev, nor in Vynnytsia, nor in
Kamanets-Pololsk. The Kiev population knows from bitter experience the
difference between those two regimes.
Nevertheless, in spite of all these quite essential differences, here
abroad the pogroms of the followers of Petlura are much more known than
those perpetrated by Denikin's army, although the latter numerically and
qualitatively surpassed considerably the former. This is to be explained
not only by the propaganda of the Russian groups which have old
connections and larger means in Europe and America, but also by the
incontestable fact that the first series of pogroms attracted the
greatest attention and brought forth the strongest expression of
dissatisfaction on the part of the public.
(In F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations
during the Years of the Revolution (1917-1921): Collection of Documents
and Testimonies by Prominent Jewish Political Workers, The Ukrainian
Information Bureau, Munich, 1956, pp. 48-51)
HOME DISINFORMATION 60 MINUTES 989 hits since 12Aug98
Ginsburg U.S. Court of Appeals 11Aug98 Serafyn vs. Federal Communications Commission
Serafyn also submitted evidence that "60 Minutes" had no policy against
news distortion and indeed that management considered some distortion
acceptable. For example, according to the Washington Post, Mike
Wallace, a longtime reporter for "60 Minutes," told an interviewer: "You
don't like to baldly lie, but I have."
An introduction to the United States Court of Appeals decision below can
be found in an Associated Press article by Jeannine Aversa which is on
the Ukrainian Archive.
The original of the Court of Appeals decision below can be found on the
United States Court of Appeals web site whose home page is at
www.cadc.uscourts.gov and where the decision can either be accessed by
following links from the Court of Appeals home page, or else accessed
directly at www.cadc.uscourts.gov/common/opinions/199808/95-1385a.txt.
As page numbering was not indicated in the Court of Appeals web site
version, it could not be inserted below, although page boundaries could
be inferred and are indicated below by means of horizontal lines.
The version below inserts clickable yellow CONTENTS boxes to remedy the
general problem of a reader's losing track of where he is within a large
document when reading it on screen, and to facilitate moving effortlessly
from one part of the document to another.
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
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 1998 Decided August 11, 1998
No. 95-1385
Alexander J. Serafyn, et al.,
Appellants
v.
Federal Communications Commission,
Appellee
CBS Inc., et al.,
Intervenors
Consolidated with
Nos. 95-1440, 95-1608
Appeal of Orders of the
Federal Communications Commission
Arthur V. Belendiuk argued the cause and filed the briefs
for appellants. Shaun A. Maher and Donna T. Pochoday
entered appearances.
C. Grey Pash, Jr., Counsel, Federal Communications Com
mission, argued the cause for appellee, with whom Christo
pher J. Wright, General Counsel, and Daniel M. Armstrong,
Associate General Counsel, were on the brief.
Richard E. Wiley, Lawrence W. Secrest, III, James R.
Bayes, and Daniel E. Troy were on the brief for intervenors
CBS Inc. and Westinghouse Electric Corporation. John
Lane Jr., Ramsey L. Woodworth, and Robert M. Gurss
entered appearances.
Before: Ginsburg, Henderson, and Randolph, Circuit
Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Alexander Serafyn petitioned the
Federal Communications Commission to deny or to set for
hearing the application of CBS for a new station license.
Serafyn objected that CBS was not fit to receive a license
because it had aired a news program in which it intentionally
distorted the situation in Ukraine by claiming that most
Ukrainians are anti-Semitic. The Commission summarily
denied the petition, holding that Serafyn had not submitted
enough evidence to warrant a hearing. Because the Commis
sion neither applied the correct standard nor provided a
reasoned explanation in its decision, we vacate its order and
remand the matter to the agency for further proceedings.
Serafyn also petitioned to revoke CBS's existing licenses on
the ground that CBS made a material misrepresentation to
the Commission when it gave an affiliated station false infor
mation regarding its handling of viewer letters complaining
about the same program. The Commission denied that peti
tion on the ground that Serafyn had not alleged that CBS
intentionally misrepresented the matter to the Commission.
We uphold the Commission's decision in this matter as rea
sonable.
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
I. Background
Section 309(a) of the Communications Act provides that the
Federal Communications Commission may grant a broadcast
license only when it determines that doing so would serve the
"public interest, convenience, and necessity." 47 U.S.C.
s 309(a). Under s 309(d) of the Act any interested person
may petition the FCC to deny or to set for hearing any
application for a broadcast license or to revoke an existing
broadcaster's license. The petition must contain
specific allegations of fact sufficient to show that ... a
grant of the application would be prima facie inconsistent
with [the public interest, convenience, and necessity].
Such allegations of fact shall ... be supported by affida
vit of a person ... with personal knowledge thereof.
Id. The FCC must hold a hearing if it finds that the
application presents a "substantial and material question of
fact" or if it is otherwise unable to conclude that granting the
application would serve the public interest. See s 309(e).
As the Commission interprets it, s 309 erects a two-step
barrier to a hearing: (1) a petition must contain specific
allegations of fact that, taken as true, make out a prima facie
case that grant of the application would not serve the public
interest; and (2) the allegations, taken together with any
opposing evidence before the Commission, must still raise a
substantial and material question of fact as to whether grant
of the application would serve the public interest. See Astro
line Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C.
Cir. 1988) (describing two-step test). At the first step, "[t]he
Commission's inquiry ... is much like that performed by a
trial judge considering a motion for a directed verdict: if all
the supporting facts alleged in the affidavits were true, could
a reasonable factfinder conclude that the ultimate fact in
dispute had been established." Gencom, Inc. v. FCC, 832
F.2d 171, 181 (D.C. Cir. 1987). At the second step, a substan
tial and material question is raised when "the totality of the
evidence arouses a sufficient doubt on the [question whether
grant of the application would serve the public interest] that
further inquiry is called for."
Citizens for Jazz on WRVR,
Inc. v. FCC, 775 F.2d 392, 395 (D.C. Cir. 1985).
In determining whether an allegation of news distortion
raises a question about the licensee's ability to serve the
public interest, the Commission analyzes both the substantial
ity and the materiality of the allegation. The Commission
regards an allegation as material only if the licensee itself is
said to have participated in, directed, or at least acquiesced in
a pattern of news distortion. The Commission stated its
policy about 30 years ago as follows:
[W]e do not intend to defer action on license renewals
because of the pendency of complaints of [news distor
tion]--unless the extrinsic evidence of possible deliberate
distortion or staging of the news which is brought to our
attention, involves the licensee, including its principals,
top management, or news management.... [I]f the
allegations of staging ... simply involve news employees
of the station, we will, in appropriate cases ... inquire
into the matter, but unless our investigation reveals
involvement of the licensee or its management there will
be no hazard to the station's licensed status....
.... Rather, the matter should be referred to the
licensee for its own investigation and appropriate han
dling.
.... Rigging or slanting the news is a most heinous
act against the public interest .... [b]ut in this democra
cy, no Government agency can authenticate the news, or
should try to do so.
Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a
footnote the Commission added:
[W]e stress that the licensee must have a policy of
requiring honesty of its news staff and must take reason
able precautions to see that news is fairly handled.
An allegation of distortion is "substantial" when it meets
two conditions, as we summarized in an earlier case.
[F]irst, ... the distortion ... [must] be deliberately
intended to slant or mislead. It is not enough to dispute
the accuracy of a news report ... or to question the
legitimate editorial decisions of the broadcaster....
The allegation of deliberate distortion must be supported
by "extrinsic evidence," that is, evidence other than the
broadcast itself, such as written or oral instructions from
station management, outtakes, or evidence of bribery.
Second, the distortion must involve a significant event
and not merely a minor or incidental aspect of the news
report.... [T]he Commission tolerates ... practices
[such as staging and distortion] unless they "affect[ ] the
basic accuracy of the events reported."
Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming
Commission's holding that CBS's "60 Minutes" had not dis
torted news by staging insurance investigator's interrogation
of fraudulent claimant; because she "actually did participate
in the fraud and did confess, even if not in precisely the
manner portrayed, the 'basic accuracy of the events reported'
... has not been distorted").
As we noted in Galloway, the Commission's policy makes
its investigation of an allegation of news distortion "extremely
limited [in] scope. But within the constraints of the Constitu
tion, Congress and the Commission may set the scope of
broadcast regulation; it is not the role of this court to
question the wisdom of their policy choices." Id. at 21.
In 1994 CBS produced and broadcast a controversial seg
ment of "60 Minutes" entitled "The Ugly Face of Freedom,"
about modern Ukraine. The broadcast angered some viewers
who believed that many elements of the program had been
designed to give the impression that all Ukrainians harbor a
strongly negative attitude toward Jews. For example, inter
viewer Morley Safer suggested that Ukrainians were "genet
ically anti-Semitic" and "uneducated peasants, deeply super
stitious." Also, soundbites from an interview with the Chief
Rabbi of Lviv, Yaakov Bleich, gave viewers the impression
that he believes all Ukrainians are anti-Semites who want all
Jews to leave Ukraine. In addition, CBS overlaid the sound
of marching boots on a film clip of Ukrainian Boy Scouts
walking to church and introduced it in such a way as to give
viewers the impression that they were seeing "a neo-Nazi,
Hitler Youth-like movement." The narrator also stated that
the Ukrainian Galicia Division had helped in the roundup and
execution of Jews from Lviv in 1941, though this Division was
not in fact even formed until 1943 and therefore could not
possibly have participated in the deed. Perhaps most egre
giously, when Ukrainian speakers used the term "zhyd,"
which means simply "Jew," they were translated as having
said "kike," which is a derogatory term.
After the broadcast interviewees and members of the
Ukrainian-American community deluged CBS with letters.
In his letter Rabbi Bleich stated "unequivocally" that his
"words were quoted out of the context that they were said"
and that "the CBS broadcast was unbalanced" and "did not
convey the true state of affairs in Ukraine." Cardinal Luba
chivsky, the head of the Ukrainian Greek Catholic Church,
who had also been interviewed, both sent a letter to CBS and
released a statement to the press. In the latter he stated,
"[M]y office was misled as to the actual thrust of the report.
Mr. Fager [the producer] presented the piece as one about
'post-communist Ukraine.' ... I can only deduce that the
goal of the report was to present all Western Ukrainians as
rabid anti-semites." Many other viewers pointed out histori