The language of § 315 of the Federal Communications Act, “such licensee shall have no power of censorship over the material broadcast under-the provisions of this section,” 1 and the legislative history of this provision call for the conclusion reached in Part I of the Court’s opinion, namely, that WDAY could not have lawfully deleted from *536A. C. Townley’s broadcast his defamation of petitioner. But due regard for the principle of separation of powers limiting this Court’s functions and respect for the binding principle of federalism, leaving to the States authority not withdrawn by the Constitution or absorbed by the Congress, are more compelling considerations than avoidance of a hardship legally imposed. Consequently the claim that WDAY cannot be held liable under constitutionally enacted state libel laws must be tested not by inquiring whether a particular result would be “unconscionable” blit whether the result is or is not barred by federal legislation as construed and applied in accordance with settled principles of statutory and constitutional adjudication. When the question in this case is thus properly put, it is necessary to examine the three relevant legal concepts to which resort must be had in order to find that WDAY is not liable for defamatory remarks broadcast by it.
(1) If § 315 .could be construed to contain implicitly, between the lines, a grant by Congress of immunity from state libel laws, the Court’s result would follow. But it is not possible to find such implied grant of immunity. It is common ground that an express provision granting such immunity was excised from the bill which later became the Radio Act of 1927 and repeated attempts in later revisions of the Act to introduce similar provisions have failed.
(2) If there were consistent administrative rulings that the Communications Act required that immunity be granted, and if that administrative ruling had been acquiesced in by Congress even by implication, the Court’s result would have support.
(3) If § 315 alone, or together with the remainder of the Communications Act, could be said to manifest a congressional purpose to oust state law from application to licensees, or if the state law could be said to be in clear *537conflict- with § 315 or the Act as a whole, then, in either event, it could be concluded that the libel law of the State had been pre-empted insofar as its applicability to a broadcaster acting within § 315 is concerned.
Because I believe that agreement with the Court’s conclusion involves either disregard of the legislative and administrative history of § 315 or departure from the principles which have governed this Court in determining when state law must give way to overriding federal law, I dissent from Part II of the opinion of the Court and therefore from its judgment.
An administrative agency cannot, of course, determine the constitutional issue whether a federal statute has displaced state law, certainly not by way of determining what Congress has in fact done. In In re Port Huron Broadcasting Co., 12 F. C. C. 1069, the case in which the Federal Communications Commission first held that stations could not censor, the Federal Communications Commission’s dictum that stations would not be liable was not a relevant administrative interpretation of the meaning of § 315 but was a finding that the States were pre-empted from this area. It was said, not that the broadcasters operating under § 315 had a federally created defense, but that the state libel laws had been supplanted. “The conclusion is inescapable that Congress has occupie'd the field in connection with responsibility for libelous matter in broadcasts under section 315 12 F. C. C., at 1075-1076.
We have here not a course of administrative interpretation of an ambiguous statutory provision; it is not even a case of a single administrative application of a statute. This is a ruling of constitutional law — that the Supremacy Clause requires that the existence of the Communications Act of 1934 oust the States of jurisdiction to impose libel laws upon broadcasts made under the provisions of § 315. Such constitutional rulings are for this Court and not for *538administrative agencies. I would suppose that a consistent administrative insistence on the constitutionality of §* 315, were that a question, would not affect this Court’s consideration of its constitutionality.
But suppose that, even as to pre-emption, we are to assume that Congress should be said to defer to consistent administrative interpretation. There was.no such consistency here in the FCC. The Commission has never issued a regulation nor held in an adjudicatory proceeding that there is immunity. Dictum in the Port Huron case was affirmatively embraced by only two of the five Commissioners who presided. Since Port Huron the Commission has referred to its language in that case in increasingly tentative fashion. In In re WDSU Broadcasting Corp., 7 Pike and Fischer Radio Reg. 769, 770, the FCC said of its dictum in Port Huron:
“We said in the Port Huron case that in our view the station was relieved from liability, but that whether or not this was the case, the fact remained that a licensee is prohibited from censoring material broadcast under the provisions of § 315.”
In a regulation issued in 1958 the Commission answered the question “If a legally qualified candidate broadcasts libelous or slanderous remarks, is the station liable therefor?” in this way:
“In Port Huron Bctg. Co., 4 R. R. 1, the Commission expressed an opinion that licensees not directly participating in the libel might be absolved from any liability they might otherwise incur under state law, because of the operation of section 315, which precludes them from preventing a candidate’s utterances.” 23 Fed. Reg. 7820.
Thus the FCC has demonstrated apparent waning confidence in its Port Huron dictum — from “[t]he conclusion is inescapable” to “in our view the station was relieved *539from liability, but ... whether or not this was the case” to “an opinion that licensees . . . might be absolved from any liability.” - ,
Even if the FCC’s position were of a type to which the principle of deference or acquiescence were applicable, even if that position were longer held than just the past decade, and were taken with more confidence than was true here, the history of congressional dealings with the question of liability of stations for libel would not support a conclusion that Congress had acquiesced in such a ruling. For when the last congressional discussion of an immunity provision took place in 1952, the Conference Committee, in reporting ouu the revised version of § 315, stated it had rejected a House immunity provision2
“. . . because these subjects have not been adequately studied by the Committees on Interstate and Foreign Commerce of the Senate and House of Representatives. The proposal was adopted in the House after the bill had been reported from the House committee. The proposal involves many difficult problems and it is the judgment of the committee of the conference that it should be acted on only after full hearings have been held.” H. R. Rep. No. 2426, 82d Cong., 2d Sess. 21.
This language negates rather than supports the conclusion that Congress in failing to enact proposed immunity measures was in fact acquiescing t in the Port Huron dictum.3
*540For these many reasons a conclusion that in failing to change § 315 after the Port Huron decision Congress by its inaction effected the pre-emption which the Commission had found is an assumption wholly unsupported in fact. The attempt to use congressional acquiescence to support the constitutional ruling of supersession of .state law raises political stalemate and legislative indecision4 to the level of constitutional declaration. As we should go slow to read into what Congress has said the negation of state power, unless it speaks explicitly or there is obvious collision, we should even less willingly find such negation in what Congress has frankly refused to say.
The Court proceeds not only from an insupportable finding that Congress acquiesced in the Commission’s Port Huron opinion. It also relies upon a determination that North Dakota’s libel law could not constitutionally be applied to WDAY in this case since the State’s libel *541laws had been superseded by federal law for broadcasts made under § 315. A determination of supersession of state law rests on legal and political presuppositions which should be made explicit and not left clouded. States should not be held to have been ousted from power traditionally held in the absence of either a clear declaration by Congress that it intends to forbid the continued functioning of the state law or an obvious and unavoidable conflict between the federal and state directives. The first does not exist here. Indeed, congressional refusal to act has often been suggested as implied recognition of the opposite. Thus, it may well be urged that repeated refusal to relieve from state libel laws amounted to an affirmance that the state laws of defamation should continue in operation since the Congress debated the issue-in terms of erecting a defense to these laws, and then declined to do so. In any event, the legislative history emphatically does not support the affirmative .conclusion that Congress intended preclusion of state law. Congress can speak with drastic clarity when it so intends. It has not so spoken here; it has refused to speak with drastic clarity.
The nature of the conflict which necessitates striking down state law has been considered in numerous decisions of this Court. In the much cited case of Sinnot v. Davenport, 22 How. 227, 243, this Court said:
“We agree, that in the application of this principle of supremacy of an act of Congress in a case where the State law is but the exercise of a reserved power, the repugnance or conflict should be direct and positive, so that the two acts could not be reconciled or consistently stand together.”
Whether denying to WDAY the power to eliminate defamatory matter from broadcasts made under compulsion of | 315 while at the same time refusing to find in *542§ 315 either immunity or a negation of state power to apply libel laws to programs required by the Federal Act is or is not fair, is not the question with which this Court must, consistent with the Supremacy Clause and the long history of this Court in construing it, begin. We are dealing with political power, .not ethical imperatives. The most harmonious deduction to be drawn from the many cases in which the claim has been made that state action cannot survive some contradictory command of Congress is that state action has not been set aside on mere generalities about Congress having “occupied the field,” or on the basis of loose talk instead of demonstrations about “Conflict” between state and federal action. We are in the domain of government and practical affairs, and this Court has not stifled state action unless what the State has required, in the light of what Congress has ordered, would truly entail contradictory duties or make actual, not argumentative, inroads on what Congress has commanded or forbidden.
It is to be noted initially that since defamation is generally regarded as an intentional tort, it is a solid likelihood that the North Dakota courts would conclude that WDAY’s compelled broadcast of Townley’s speech lacked the necessary intent to communicate the defamation, and that therefore WDAY’s conduct was not. tortious, or, if prima facie tortious, that WDAY was privileged.5 In no case has any state court held a station liable on finding that the station could not censor. Some forty States have enacted statutes granting various degrees of privilege.6 *543In two States, exercising the flexibility of common-law principles, the courts have extended a defense of privilege to broadcasters compelled to carry broadcasts by § 315.7 Thus, the largely abstract assumption on the basis of which the Court makes such heavy inroad on state laws— that broadcasters will be held without having committed a volitional act — may be entirely contradicted by experience.
How treacherous it is for this Court to be speculating about state law is well illustrated by a detailed examination of North Dakota law in the situation presented by this case. A North Dakota statute extending general immunity to all broadcasts by radio and television stations was found by the District Court of North Dakota ,to violate the North Dakota and United States Constitutions. WDAY, the appellee before the Supreme Court of North Dakota, did not except to this finding and therefore the Supreme Court of North Dakota declined to rule on the validity of the North Dakota statute. But no inference may be drawn from the District Court’s conclusions that a station broadcasting under compulsion of § 315 would be liable under North Dakota law. On the contrary, the District Court found that WDAY had a valid defense not only under § 315 of the Communications Act but also within the provisions of Chapter 14r-02 of the North Dakota Revised Statutes of 1943. One section of this chapter extends a privilege to “one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent.” And so, rather than being justification for a belief that under North Dakota law WDAY would be liable for defamation, the District Coúrt’s opin*544ion is clear evidence that at least one North Dakota court believed that North Dakota law creates a privilege in favor of broadcasters who are compelled by federal law to broadcast the defamatory matter. In any event, the finding of unconstitutionally was by a lower court and not by the North Dakota Supreme Court which is, of course, the final interpreter of North Dakota law.
Even granting the Court’s unsupported assumption about state law, however, there is not that conflict between federal and state law which justifies displacement of state power. Conflict between the North Dakota libel law and § 315 might be attributed to the fact that broadcasters, to avoid being held liable without fault, will refrain from permitting any political candidate to buy time. This result, the argument would conclude, is contrary to the congressional command that stations operate in the “public convenience, interest, or necessity.” 48 Stat. 1083, as amended, 47 U. S. C. § 307. The Federal Communications Commission has determined that to fulfill this congressional command stations must carry some political broadcasts. But the state libel laws do not prohibit them from airing speeches by political candidates. They merely make such broadcasts potentially less profitable (or unprofitable) since the station may have to compensate someone libeled during the candidate’s broadcast. The Federal Act was intended not to establish a mode of supervising the income of broadcasters — not of protecting or limiting their profits — but of insuring “a rapid, efficient,' Nation-wide, and world-wide wire and radio communication service” for the benefit of “all the people of the United States.” 48 Stat. 1064, as amended, 47 U. S. C. § 151.
We have held that the Communications Act does not govern relations between stations and third persons. Radio Station WOW, Inc., v. Johnson, 326 U. S. 120. And *545we have permitted a state court to award damages for. breach of a contract despite the fact that that breach was ordered by the FCC as a condition-for renewal of a license. Regents of the University System of Georgia v. Carroll, 338 U. S. 586. If North Dakota were to rule that its libel law applies to broadcasts made under compulsion of § 315, it would rule that broadcasters are liable without fault. There is nothing in such liability which conflicts with the necessity of broadcasting imposed by § 315. If Congress came to fear impairment of its policy on political broadcasts, Congress could act to alter the condition which it has created by declining to legislate immunity. There may be a burden, even unfairness to the stations. But there may be unfairness too, after all, in depriving a defamed individual of recovery agair./3t the agency by which the defamatory communication was magnified in Its deleterious effect on his ability to' earn ,a livelihood. Adjustment of what is fair to all should be done by a congressional change in the federal law, or in -the absence of such''enactment, by state lawj through legislátion or conynon-law rulings that the stations are partially or totally immune. Again, allocation’ of risk of lotes through defamation does not necessarily imply the duty not to defame. The application of libel laws by North Dakota to WDAY merely means that since the harm could no more have been avoided by the person defamed than by WDAY, in balancing these conflicting undesirables the risk of loss should^ fall upon WDAY. Whether or not this would be a wise decision, it would not conflict with § 315’s compulsion to broadcast speeches by opposing candidates for office.
In -discussing in the Federalist Papers the respective areas of federal and state constitutional powers, Hamilton wrote that state powers would be superseded by federal authority if continued authority in the States would be “absolutely and totally contradictory and repugnant.” *546“I use these terms,” he wrote, “to distinguish this . . . case from another which might appear to resemble it, but which would, in fact, be essentially different; I mean where the exercise of a concurrent jurisdiction might be productive of occasional interferences in the policy of any branch of administration, but would not imply any direct contradiction or repugnancy in point of constitutional authority.” The Federalist, No. 32, at 200 (Van Doren ed. 1945). Since this concurrent jurisdiction was “clearly admitted by the whole tenor” of the Constitution in Hamilton’s view, “It is not ... a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a preexisting right of sovereignty.” Id., at 203.
Hamilton’s suggestion, emanating from the contest of constitutional creation, is disregarded in the approach taken by the Court today on a precisely analogous if not identical question, for there exists here not an explicit conflict but, at the very most, an interference with policy. Hamilton said, and this Court has in the past begun from similar presuppositions, that alienation of an area of state sovereignty is not to be implied from occasional interferences by state law with federal policy. Particularly should this rule be adhered to where the precise nature of that federal policy on the issues involved rests on the conjectures of the Court. When a state statute is assailed because of alleged conflict with a federal law, the same considerations of forbearance, the same regard for the lawmaking power of States, should guide the judicial judgment as when this Court is asked to declare a statute unconstitutional outright.
In this decision a state law is invalidated by hypothesizing congressional acquiescence and by supposing “conflicting” state law which we cannot be certain exists and *547which, if it does exist, is not incompatible with federal law when judged by the considerations governing super-session in the long course of our decisions, judged as a corpus.
I would reverse the North Dakota Supreme Court and remand the case to it with instructions that § 315 has left to the States the power to determine the nature and extent of the liability, if any, of broadcasters to third persons.
48 Stat. 1088, as amended, 47 U. S. C. § 315 (a).
See 98 Cong. Rec. 7401-7416.
The situation would not‘have appeared to Congress to be one in which acquiescence was a meaningful concept. Immediately after Port Huron the decision was criticized as being without statutory basis. Houston Post Co. v. United States, 79 F. Supp. 199. In discussing the Port Huron decision before a House Committee, FCC Chairman Coy insisted that that decision “only represents the views *540of the Commission” and that he did not think “this decision clarifies it as far as the industry is concerned.” Hearings before House Select Committee to Investigate the Federal Communications Commission, 80th Cong., 2d Sess. 14. After Port Huron had been argued but before the decision, a bill, S. 1333, 80th Cong., 1st Sess., § 15, granting immunity was reported favorably by the Senate Committee on Interstate and Foreign Commerce, S. Rep. No. 1567, 80th Cong., 2d Sess. 13, but was never enacted. Every indication is persuasive that the question was regarded as open and highly debatable.
Both before and after Port Huron, bills to permit censorship or grant total or partial immunity have been introduced. See H. R. 9230, 74th Cong., 1st Sess.; H. R. 3038, 75th Cong., 1st Sess.; S. 814, 78th Cong., 1st Sess., § 11; S. 1333, 80th Cong., 1st Sess., § 15; H. R. 3595, 80th Cong., 1st Sess., § 15; H. R.-6949, 81st Cong., 2d Sess., § 202; H. R. 5470, 82d Cong., 1st Sess.; S. 2539, 82d Cong., 2d Sess.; H. R. 7062, 82d Cong., 2d Sess.; H. R. 7756, 82d Cong., 2d Sess.; S. 1208, 84th Cong., 1st Sess.; H. R. 4814/ 84th Cong., 1st Sess.; S. 1437, 85th Cong/, 1st Sess., § 401. The congressional declination to act partakes not of satisfaction with the Port Huron decision but of indecision about the propriety and constitutionality of the alternative solutions to the broadcasters’ plea of unfairness.
See Developments in the Law of Defamation, 69 Harv. L. Rev. 875, 907-910; Remmers, Recent Legislative Trends in Defamation by Radio, 64 Harv. L. Rev. 727.
Friedenthal and Medalie, The Impact of Federal Regulation on Political Broadcasting: Section 315 o.f the Communications Act, 72 Harv. L. Rev. 445, 485.
Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 116 A. 2d 440; Josephson v. Knickerbocker Broadcasting Co., 179 Misc. 787, 38 N. Y. S. 2d 985 (Sup. Ct.).