Head v. New Mexico Board of Examiners in Optometry

PETITIONER: Head
RESPONDENT: New Mexico Board of Examiners in Optometry
LOCATION: Clauson's Inn

DOCKET NO.: 392
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 374 US 424 (1963)
ARGUED: Apr 15, 1963 / Apr 16, 1963
DECIDED: Jun 17, 1963

Facts of the case

Question

Media for Head v. New Mexico Board of Examiners in Optometry

Audio Transcription for Oral Argument - April 15, 1963 in Head v. New Mexico Board of Examiners in Optometry

Audio Transcription for Oral Argument - April 16, 1963 in Head v. New Mexico Board of Examiners in Optometry

Earl Warren:

392, Agnes K. Head and Lea County Publishing Company et al., Appellants, versus New Mexico Board of Examiners in Optometry.

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

During the opening of my argument yesterday, I was showing that the Federal Communications Commission has a comprehensive jurisdiction over radio broadcast and particularly over the programs and programming.

The view of the Commission with respect to its powers which come under the licensing authority as I was seeking to develop is perhaps best set forth in a passage quoted from one of its statements of policy beginning at the bottom of page 19 of our brief.

Broadcasting licensee as the Commission said, must assume responsibility for all material which is broadcast through their facility.

This includes all programs and advertising material which they present to the public.

With respect to advertising the material, the licensee has the additional responsibility to take all reasonable measures to avoid any false, misleading or deceptive matter, and to avoid abuses with respect to the total amount of time devoted to advertising continuity as well as the frequency with which regular programs are interrupted for advertising message.

Now, that is not simply and idle declaration.

The Commission has consistently in determining whether to renew a license or to revoke a license taken into account the character of the programs and particularly the character of the advertising by a station.

For example in one case, the Commission sustained in the examiner's finding that a radio station had been guilty of a breach of its duty as a licensee because it engaged in what was known as bait and switch advertising.

And in another case, one of the grounds for failing to renew a license was that the radio station had run a so-called “Medical Question Box”, answering questions about health and then advertising or offering prescriptions from the sale of which it received commission the same way the Commission has on a number of occasions expressed its concern about advertising of beer and other malt beverages in states where their sale was prohibited.

And only recently the Commission scheduled a proceeding to determine whether it should promulgate some kind of a rule or standard on the amounts of time of which may be developed to -- may be devoted to advertising.

William O. Douglas:

It does consider the -- whether or not the advertising, conforms to the state law?

Archibald Cox:

It would take that into -- it would take that into account.

I do not mean to suggest the state law would be determined.

This is something it would take into account very clearly.

Arthur J. Goldberg:

General, the position you actively (Inaudible)

Archibald Cox:

The closest -- the closest illustration that comes to my mind is the “Medical Question Box” illustration, in which I'm not able to say it was the only ground because I don't remember but at least one of the grounds on which a license was not renewed was that the station had engaged in this practice.

Now, the case that is close to it and which I think is the case that Justice White must have referred to yesterday when he said, “this power was challenged”, involves a little different question but I think it does -- it is certainly close to the point.

There is a station, I believe, the Palmetto Broadcasting Company or something like that in South Carolina, whose license was not renewed for two reasons: that they were allegedly false representations made to the Commission; and second because a good part of the commentary by one of its disc jockeys was believed by the Commission to be in very bad taste if not obscene.

As I am informed, Justice White, there is no challenge to the power of the Commission to take these things into account.

There is in that case, a challenge that centering -- that taking it into account as bad taste because it's arguably obscene of passes over the line in the censorship and I would have to acknowledge here, do acknowledge, that the Commission's power to deal with this subject matter is of course limited by the provision in the statute that I mentioned yesterday that says, it should not engage in censorship.

But within the two banks of that canal, it has unquestionably exercised its powers.

Now, I should --

Arthur J. Goldberg:

(Inaudible) in placing this man where there are specific jurisdiction dealing with advertising?

Archibald Cox:

I think it is never -- of course, the Government in order to deal with this problem, would rely on the Federal Trade Commission as another weapon if it was false advertising.

This case, I submit, is not false advertising.

William J. Brennan, Jr.:

But Mr. Solicitor General, how -- Section 54 (b) at Title 15 says, “that no radio-broadcast licensee,” this is as to the Federal Trade Commission, “shall be liable under this Section by reason of the dissemination by him of any false advertisement, unless he has refused, on the request of the Commission, to furnish the Commission the name and post-office address of the manufacturer,” and so forth.

How -- does Federal Trade Commission have any jurisdiction?