ГУЛаг Палестины

means the degree of evidence necessary to make, not a fully

persuasive case, but rather what a reasonable factfinder

might view as a persuasive case--the quantum, in other

words, that would induce a trial judge to let a case go to the

jury even though he himself would (if nothing more were

known) find against the plaintiff").

We are also concerned about the Commission's method of

analyzing the various pieces of evidence that Serafyn present

ed. In making its decision the Commission must consider

together all the evidence it has. See Gencom, 832 F.2d at

181; Citizens for Jazz, 775 F.2d at 395. The decision under

review, however, suggests (though not conclusively) that the

Commission analyzed each piece of evidence in isolation only

to determine, not surprisingly, that no item by itself crossed

the threshold. See WGPR, 10 FCC Rcd at 8147-48. Be

cause we must remand this matter in any case, we need not

determine whether the Commission in fact erred in this

regard. We simply note that upon remand the Commission

must consider all the evidence together before deciding

whether it is sufficient to make a prima facie case or to raise

a substantial and material question of fact.

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

B. Licensee's policy on distortion

In addition to holding that Serafyn presented insufficient

evidence to "demonstrate" that CBS had intentionally distort

ed the "60 Minutes" episode about Ukraine, the Commission's

denial of Serafyn's petition also rested upon the alternative

ground that he had not alleged a general pattern of distortion

extending beyond that one episode. Upon appeal Serafyn

argues--and the Commission does not dispute--that he did

present evidence regarding CBS's general policy about distor

tion, namely the comments of Wallace and Hewitt quoted

above, and that the Commission failed to discuss or even to

mention this evidence. Both Wallace's comment ("you don't

like to baldly lie, but I have") and Hewitt's ("it's the small

crime vs. the greater good") are, to say the least, suggestive.

Furthermore, both Wallace (as the most senior reporter and

commentator for "60 Minutes") and Hewitt (as the producer

of the series) are likely members of the "news management"

whose decisions can fairly be attributed to the licensee.

Hunger in America, 20 FCC 2d at 150. The Commission's

failure to discuss Serafyn's allegation relating to CBS's policy

on veracity is therefore troubling. Indeed, because of the

importance the Commission placed upon the supposed lack of

such evidence, its presence in the record casts the Commis

simon alternative ground into doubt. The Commission must

consider these allegations upon remand.

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

C. Nature of particular evidence

The Commission gave illogical or incomplete reasons for

finding non-probative two of the three pieces of evidence it

determined were "extrinsic." It also failed to discuss individ

ually certain alleged factual inaccuracies that Serafyn brought

to its attention. Before discussing the Commission's opinion

in detail, however, we set out a brief excerpt from the

transcript of the broadcast.

MORLEY SAFER, co-host: ... [T]he west [of Ukraine],

where we go tonight, is on a binge of ethnic national

ism. "Ukraine for the Ukrainians" can have a fright

ening ring to those not ethnically correct, especially in

a nation that barely acknowledges its part in Hitler's

final solution.

... [J]ust about every day of the week, the sounds of

freedom can be heard, men and women giving voice to

their particular view of how the new independent

Ukraine should be governed. They disagree about

plenty, but do have two things in common: their old

enemy, Russian communism, and their old, old enemy,

the Jews.

Unidentified Man # 1: (Through Translator) We Ukrain

ians not have to rely on American [sic] and kikes.

SAFER: Yacoov [sic] Bleich left the United States five

years ago to take over as the chief rabbi for the

Ukraine.

Rabbi YACOOV [sic] BLEICH: There is, obviously, a lot

of hatred in these people that are--that are expound

ing these things and saying, you know--obviously if

someone, you know, screams, "Let's drown the Rus

sians in Jewish blood," there isn't much love lost there.

...

SAFER: ... In western Ukraine at least, Hitler's dream