ON MOTION FOR REHEARING EN BANC
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEV-ENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges.
PER CURIAM.The motion for rehearing en banc initiated by a member of the Court in regular active service is denied, a majority of the Circuit Judges who are in regular active service not having voted *603in favor of it (Rule 35, Federal Rules of Appellate Procedure).
Separate Statement by Chief Judge BAZELON as to why he would grant rehearing en banc, sua, sponte.
BAZELON, Chief Judge:This litigation concerns a series of directives issued by the Federal Communications Commission in 1971 which advised the nation’s broadcasters that they were expected to exercise “responsibility” in regard to the playing of “drug-oriented” popular records.1 The petitioners argued that the impact of the Commission’s rulings was indirect censorship of these songs. The panel of this court which heard the case decided that the Commission’s statements merely reiterated a traditional Commission policy — that broadcast licensees must “assume responsibility for all material which is broadcast through their facilities”.2 After reviewing the panel decision, I moved for rehearing of the case en banc.3
The panel opinion found that the language of the Commission’s directives does not purport to censor popular songs. But that language can only be understood in the light of the Commission’s course of conduct.
The Commission’s initial statement in the area of “drug-oriented” songs was a “Public Notice” issued on March 5, 1971.4 5The Notice, entitled “Licensee Responsibility to Review Records Before Their Broadcast”, did not specifically prohibit the playing of particular songs. But broadcasters might well have read it as a prohibition. For one thing, two members of the Commission, including the member reported to be the originator of the Notice,5 appended to it a formal statement explaining that their goal was to “discourage, if not eliminate, the playing of records which tend to promote and/or glorify the use of illegal drugs.”6 Five weeks after the Notice was issued, the Commission’s Bureau of Complaints and Compliance provided broadcasters the names of 22 songs which had come to its attention as “so-called drug-oriented song lyrics.” 7
The Commission’s action was reported by responsible organs of the press as an act of censorship.8 It appears that radio stations moved quickly to ban certain songs. In some cases stations stopped playing, regardless of subject or lyric, all the works of particular artists whose views might lift the Commission’s eyebrow.9 Broadcasters circulated the list of 22 songs throughout the industry as a “do not play” list.10
The Commission's subsequent “Memorandum Opinion and Order”, issued on April 16, 1971,11 and designated by the *604Commission as its “definitive statement” on the subject, appeared to backtrack somewhat. The Order repudiated the list of 22 songs. It stated that the evaluation of which records to play “is one solely for the licensee”, and that “[t]he Commission cannot make or review such individual licensee judgment.”
But the Commission’s order went further. Instead of rescinding the Public Notice, the Order restated its basic threat: “the broadcaster could jeopardize his license by failing to exercise licensee responsibility in this area.” As we have recognized, “licensee responsibility” is a nebulous concept.12 It could be taken to mean — as the panel opinion takes it — only that “a broadcaster must ‘know’ what it is broadcasting.” On the other hand, in light of the earlier Notice, and in light of the renewed warnings in the Order about the dangers of “drug-oriented” popular songs, broadcasters might have concluded that “responsibility” meant “prohibition”.
The Commissioners themselves were unclear on the matter. The Order expressed full adherence to the policy of the prior Notice. But two Commissioners issued concurring statements indicating that the Order restored the status quo prior to the March 5 Notice.13 A third Commissioner issued a dissenting statement indicating that the Order did not restore the status quo.14 A fourth Commissioner issued a rather enigmatic statement indicating his agreement with both the Notice and the Order but observing that they established an “impossible assignment.” 15 The confusion was crystallized later in 1971 in Congressional testimony by FCC Chairman Burch. At one point, the Chairman offered this assurance:
Chairman Burch: . . . [Cjontrary to Commissioner Johnson’s statement that we banned drug lyrics, we did not ban drug lyrics. .
Moments later, however, the following ensued:
Senator Nelson: All I am asking is: If somebody calls to the FCC’s attention that a particular station is playing songs that, in fact, do promote the use of drugs in the unanimous judgment of the Commission; if you came to that conclusion, what would you do ?
Chairman Burch: I know what I would do, I probably would vote to take the license away.16
This court is the primary forum for judicial review of broadcast licensing regulation, jin reviewing the Commis-t sion’s actions' nwteifflmcal areas — e. g. ¡dicing broadcasters’ mechanical opera-ons and interference between stations -we must accord great deference to its ¡eisions. But no such deference is due cases involving the Commission’s >ublic interest” regulation of program intent. It is the “power to specify aterial which the public interest re-lires or forbids to be broadcast that .rries the seeds of the general author-y to censor. . . ” 17 Courts have a jecial responsibility to protect First *605Amendment rights and a special expertise for doing so.18
In NAACP v. Button, Mr. Justice Brennan observed that “precision of regulation must be a touchstone” in the area of freedom of expression.19 There is no precision here. The Commission’s chameleon-like directives reflect the spectrum from confusion to deliberate obfuscation. The court must look to the impact of these directives, not merely their language.20 Such review is all the more necessary where the Commission’s directives are couched in code words for license renewal such as “public interest” or “licensee responsibility”. Seven years ago, a member of the Commission explained :
¡Talk of “responsibility” of a broad-Í caster in this connection is simply a euphemism for self-censorship. It is an attempt to shift the onus of action against speech from the Commission to the broadcaster, but it seeks the same ^result — suppression of certain views \nd arguments. Since the imposition of the duty of such “responsibility” involves Commission compulsion to perform the function of selection and ex-elusion and Commission supervision of the manner in which that function is performed, the Commission still retains the ultimate jpower to determine what is and what is not permitted on the air.21
Judge (now Chief Justice) Burger found this reasoning to be “unanswerable.” Anti-Defamation League of B’nai B’rith v. FCC, 131 U.S.App.D.C. 146, 148, 403 F.2d 169, 171 (1968). In the differing circumstances of this case, that reasoning might be answerable. But the court cannot abdicate its responsibility to face the question.
The panel opinion indicates that the present challenges to the Commission’s directives are premature; that the Commission’s final sanction is denial of a license, and until that sanction is imposed, the petitioners cannot demonstrate any harm from the Commission’s actions. Opposed to this viewpoint is the often recognized principle that the threat of legal sanction can have as much effect on the conduct of threatened parties as the sanction itself.22 If that principle applies here, as petitioners argue, then there is a judicially cognizable in*606jury as soon as broadcasters begin to alter their programming to avoid governmental reprisal.
This case presents several other questions of considerable significance: Is the popular song a constitutionally protected form of speech ? 23 Do the particular songs at which these directives were aimed have a demonstrable connection with illegal activities?24 If so, is the proper remedy to “discourage or eliminate” the playing of such songs? Can the FCC assert regulatory authority over material that could not constitutionally be regulated in the printed media ? 25
Clearly, the impact of the Commission’s order is ripe for judicial review. And, on that review, it would be well to heed Lord Devlin’s recent warning:26
If freedom of the press [or freedom of speech] perishes, it will not be by sudden death. . It will be a long time dying from a debilitating disease caused by a series of erosive measures, each of which, if examined singly, would have a good deal to be said for it.
. As to the nature of the broadcasters’ “responsibility”, see pp. 603, 604, infra.
. Yale Broadcasting Co. v. FCC, at 599, 600, quoting Report and Statement of Policy re: Commission En Banc Programming Inquiry, 25 Fed.Reg. 7291, 7295, SO R.R. 1902, 1912-13 (1960).
. Rule 35(a), Federal Rules of Appellate Procedure. This is — and should be — an unusual procedure. See, e. g., United States v. Sambro, 147 U.S.App.D.C. 75, 454 F.2d 918 (1971) (Statement of Chief Judge Bazelon) ; Southern Ry. Co. v. Lanham, 408 F.2d 348 (5th Cir. 1969) (dissent from denial of rehearing en banc).
. 28 FCC 2d 409 (1971).
. I. e., Cmr. Robert E. Lee; of. Week’s Profile, Broadcasting, May 3, 1971, p. 67.
. 28 FCC 2d 410, 411 (1971).
. In its subsequent Order, infra, the Commission reported that the 22 songs had been identified by the Department of the Army. Apparently the Commission conferred with military officials before issuing the initial Public Notice. 31 FCC 2d 79 (1971). The Commission did not consult with the Bureau of Narcotics and Dangerous Drugs. N.Y. Times, March 28,1971, p. 41, c 1.
. See, e. g., headlines quoted at 32 FCC 2d 377 (1971) and N.Y. Times, March 7, 1971, p. 28, c. 3.
. Joint App. at 87-88; see Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16, 77 (1972) (Chief Judge Bazelon dissenting) at 366 n. 60.
. Joint App. at 148.
. 32 FCC 2d 377 (1971).
. Anti-Defamation League of B’nai B’rith v. FCC, 131 U.S.App.D.C. 146, 403 F.2d 169 (1968).
. 32 FCC 2d 382 (1971) (Cmra, Bartley and H. Rex Lee).
. id. at 386. (Cmr. Johnson).
. Id. at 382 (Cmr. Wells).
. Hearings on the Effect of the Promotion and Advertising of Over-the-counter Drugs on Competition, Small Business, and Health and Welfare of the Public, Before the Subcomm. on Monopoly of the Senate Select Comm, on Small Business, 92d Cong., 1st Sess., pt. 2 at 734-736 (1971).
. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 26, 405 F.2d 1082, 1094 (1968), cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
But we emphasize that our cautious approval [in Banzhaf] does not license the Commission to scan the airwaves for offensive material with no more discriminating a lens than the “public interest” or even the “public health”.
132 U.S.App.D.C. at 31, 405 F.2d at 1099.
. Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965).
. 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).
. See, e. g., Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971) ; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17L.Ed.2d 629 (1967) ; Bagget v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964) ; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) ; NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) ; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959) ; cf. Laird v. Tatum, 408 U.S. 1, 12-13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972) ; Banzhaf v. FCC, 132 U.S.App.D.C. 14, 32-33, 405 F.2d 1082, 1100-1101 (1968) cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
. Complaint of Anti-Defamation League of B’nai B’rith Against Station KYTM, 6 FCC 2d 385, 398. (Cmr. Loevinger, concurring).
. CBS v. FCC, 316 U.S. 407, 414, 62 S.Ct. 1194, 86 L.Ed. 1563 (1941) ; see Environmental Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 428 F.2d 1093, 1098-1100 (1970) ; cf. the candid statement of Clay T. Whitehead, Director of Telecommunications Policy in the White House, as to why the threat of license removal is an effective means of program control: “The main value of the sword of Damocles is that it hangs, not that it drops. Once you take a guy’s license away, you no longer have any leverage against him.” The Washington Post, March 9, 1973, at p. A 17 col. 3.
. Popular songs might be considered mere entertainment, or even noise pollution. Yale Broadcasting Co. v. FCC, at 598, 599. On the other hand, historians and sociologists have noted that the popular song has been an important medium of political, moral, and aesthetic expression in American life. Morison, Oxford History of the American People, xxiii-xxvii, 223, 238, 250, 399, 479, 634, 860, 917 (1965) ; Reich, The Greening of America, 242-251 (1971).
. The only evidence in the record on this point is the statement of the Director of The Bureau of Narcotics and Dangerous Drugs expressing strong doubt that there is any connection between “drug-oriented song lyrics” and the use of drugs. The New York Times, March 28, 1971, p. 41, c. 1. See Banzhaf v. FCC, 132 U.S.App.D.C. 14, 31-32, 405 F.2d 1082, 1098-1099 (1968), cert. den. sub nom. Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). Cf. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1973) (Marshall, J., dissenting) .
. See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16 (1972) (Chief Judge Bazelon, dissenting) (application of the Fairness Doctrine). Unlike the “Fairness Doctrine” cases, there can be no assertion here that the chilling effect is incidental to providing access to the media for viewpoints that would contribute to a fuller debate on public issues. The question is thus presented whether the rationale of the “Fairness Doctrine”, or any other realities of the electronic media, warrant intrusion on broadcasters’ free speech rights in this case.
. Quoted in remarks by Richard S. Salant, to the Boston Univ. School of Public Broadcasting, Boston, Mass. April 28, 1971.