concurring:
Subject to the following observations, I join the court’s opinion in this case.
The Anti-Defamation League charges that Station KTYM, knowingly and on *173repeated occasions, allowed to be broadcast a series of programs containing false and defamatory statements about Jews in general, and on one occasion about some Jewish individuals in particular.1 Two types of program content are thus challenged — libeling an individual and attacking a group — and different approaches are required for each.
With respect to individual libel, I start with the premise that a license to run a radio station is not a license to libel. False defamatory statements, made knowingly or with reckless disregard of their falsity, cannot claim the shelter of the First Amendment. New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). A radio station, like a newspaper, cannot claim immunity from libel laws.2
Thus when a station allows a series of programs in which individuals are repeatedly defamed and the station is put on notice (for example, by the complaint of an offended individual) that such programs contain false and unsubstantiated statements, in a renewal proceeding involving that station’s license the Commission should: (1) determine whether the station knew of the falsity of the material or allowed it to be broadcast in reckless disregard of its truth or falsity (the standard of New York Times Co. v. Sullivan), and (2) consider whether such programming is in the public interest. Neither the First Amendment nor a policy of encouraging stimulating and constructive radio broadcasting would preclude the Commission from refusing to renew a license because of repeated individual libels; nor would the Commission be prevented from cancelling the license of a broadcaster who persisted in such a course of programming.3 In the instant case there is no *174pattern of repeated individual libels. Therefore I concur in affirming the Commission.
Attacking a group presents a harder problem. Under the law of libel, defamation of a broad group or class is not usually actionable.4 And this kind of speech, detestable as some of its antiSemitic and racist aspects may be, approaches the area of political and social commentary. To this extent it makes a stronger claim for First Amendment protection.5 I share the desire of the Commission and the court to foster free and full debate on political and social issues. For this reason, broadcasters should not be so burdened in this area that they would shy away from presenting controversial issues.
Station KTYM offered the Anti-Defamation League substantial time to reply to the anti-Semitic broadcasts. This application of the “fairness doctrine” will have to suffice. To go further, requiring stations to check the truth of all commentary attacking a group or class, might result in a “chilling effect,” constraining stations to steer clear of controversial • material. However, as this case illustrates, there is a substantial flaw in the theory of the fairness doctrine. Not surprisingly, the Anti-Defamation League refused to dignify or exacerbate the attack by replying. It is likely that other groups would similarly refuse to reply. Under such circumstances, the Commission may
decide to require a licensee to seek with reasonable diligence exponents of other views when it presents one side of a controversial issue in which a group or class is attacked.6
The requirements I would place on broadcasters, and the Commission, in dealing with material libeling an individual or attacking a group, are consistent with the Commission’s overall policy of broadcaster responsibility. For example, in the context of protecting the public from rigged quiz shows, the Commission, in its report on Program Policy, 20 Pike & Fischer R.R. 1901, 1904 (1960), stated:
“* * * [T]he Commission had made its position clear that, in fulfilling its obligation to operate in the public interest, a broadcast station is expected to exercise reasonable care and prudence with respect to its broadcast material in order to assure that no matter is broadcast which will deceive or mislead the public. * * ”
And in a major statement on the fairness doctrine, Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.Reg. 10415, 10421 (1964), the Commission stated:
“ * * * Under fundamental communications policy, the licensee, with the exception of appearances of political candidates subject to the equal opportunities requirement of Section *175315, is fully responsible for all matter which is broadcast over his station. It follows that when a program contains a personal attack, the licensee must be fully aware of the contents of the program, whatever its source or his actual involvement in the broadcast. * * * ” (Emphasis added.)
Thus it is clear to me that the Commission is not helpless to act in this area.
. The Commission concluded that “the Cotton broadcast of October 7, 1964, contained a personal attack on the ADL and its General Counsel, Mr. Forster. The other broadcasts referred to did not contain personal attacks on ADL or its officials, but did contain statements that can be regarded as anti-Semitic * *
. In Gariepy v. Pearson, 92 U.S.App.D.C. 387, 207 F.2d 15, cert. denied, 346 U.S. 909, 74 S.Ct. 241, 98 L.Ed. 407 (1953), the court allowed the issue of libel to go to a jury. There both Drew Pearson and a radio station were sued for libel for a broadcast by Pearson over the station. The court noted that the station “examined the script in advance and admits it ‘caused’ the words set forth in appellant’s complaint to be broadcast.” 92 U.S.App.D.C. at 338, 207 F.2d at 16. The same is true in the present case. See also Gearhart v. WSAZ, Inc., E.D. Ky., 150 F.Supp. 98 (1957), affirmed, 6 Cir., 254 F.2d 242 (1958) (radio station sued for libel for one of its newscasts) ; cf. Lesesne v. Willingham, E.D. S.C., 83 F.Supp. 918 (1949) (Western Union liable for transmission of telegram where it know it was libelous); see cases collected in Remmers, Recent Legislative Trends in Defamation by Radio, 64 Harv.L.Rev. 727 (1951). Even the National Association of Broadcasters, in promulgating a model radio defamation statute, allowed suits for libel where the radio station “has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.” Rommers, supra at 741.
There is one narrowly drawn exception: a radio station is not responsible for libelous statements made in a political broadcast by a candidate for public office. Farmers E. & C. Union, etc. v. WDAY, 360 U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407 (1959). This is so because § 315(a) of the Federal Communications Act precludes a station from deleting any of the material from such a speech. The station here, however, is under no such disability, as the Commission in brief agrees:
“ * $ * The evidence before the Commission further showed that KTYM recognized its right to accept or reject programming material * * * and expressly provides in its contracts for the right to accept or reject programs in each separate case. * * * ” “KTYM filed pleadings * * *
setting forth new details such ns its manner of screening the Cotten and other broadcasts to remove matter ‘which is adjudged unduly harsh and unnecessary’ * *
Brief for appellee, pp. 36, 9.
. This would not be prohibited “censorship,” 47 U.S.C. § 315 (1964), any more *174than would the Commission’s considering on a license renewal application whether a broadcaster allowed “coarse, vulgar, suggestive, double-meaning” programming; programs containing such material are grounds for denial of a license renewal. Palmetto Broadcasting Co., 23 Pike & Fischer R.R. 483, 484 (1962), affirmed, 118 U.S.App.D.C. 144, 334 F.2d 534, cert. denied, 379 U.S. 843, 85 S. St. 84, 13 L.Ed.2d 49 (1964).
. See 33 Am.Jur. Libel and S’ander § 192 (1941).
. In Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952), a divided Supreme Court upheld a conviction under a statute outlawing defamation of a racial or religious group. However, far from spawning progeny, Beauharnais lias been left more and more barren by subsequent First Amendment decisions, to tbe point where it is now doubtful that the decision still represents the views of the Court.
. Nothing I have said would preclude the Commission from finding that a station was not in the public interest whose regular programming consisted solely of views slanted toward one side of a controversial issue or issues, even if the station allowed the other side time to reply. The Commission could conclude that a station which offered more rounded programming better served the public.