1083, Calif. 1936), the Commission does not believe that legislation such as proposed in H. R. 4627 could be validly attacked on the basis that it is an unconstitutional curtailment of free speech. Free speech is not an absolute right entitled to protection irrespective of considerations of public welfare. If other interests are found to be of greater importance, it is well recognized that the right may be abridged. Although the manufacture and sale of intoxicating liquors, in the absence of legislation to the contrary, is a lawful business, entitled to protection as such, it has been consistently subjected to strict regulation and control in view of its potential adverse effect on public health, safety, and morals. In the exercise of the police power various States have in various ways controlled and regulated the advertising of intoxicating liquor and the solicitation of orders therefor without encountering constitutional objections related to free speech. Furthermore, as the committee is aware, Congress has acted in this sphere to a limited extent by providing in the Federal Alcohol Administration Act (27 U. S. C. A., Sec. 205 (f)) that distillers, brewers, importers, wholesalers, or bottlers of distilled spirits, wine, or malt beverages shall not "publish or disseminate or cause to be published or disseminated by radio broadcast, or in any newspaper, periodical, or other publication or by any sign or outdoor advertisement or any other printed or graphic matter, any advertisement of distilled spirits, wine, or malt beverages, if such advertisement is in, or is calculated to induce sales in, interstate or foreign commerce, or is disseminated by mail, unless such advertisement is in conformity with *** regulations, to be prescribed by the Secretary of the Treasury * * *" The Federal Alcohol Administration Act was held constitutional in Arrow Distilleries v. Alexander (109 F. 2d 397, cert. denied 310 U. S. 646). While the approach taken in H. R. 4627 is much more drastic insofar as advertising is concerned, the first amendment should not prove to be an obstacle to the legislation if there is present a substantial threat to the national welfare and it is otherwise within the power of Congress.

2. Does the 2d sentence of the 21st amendment give a State the right to pass legislation comparable to section 4 of H. R. 4627 with reference to (a) radio stations operating within a State, or (b) broadcasting stations operating without a State?

It would appear that the answer to both of these questions is "No." While the 21st amendment exempts the States from some of the usual restrictions of the commerce clause in order that they may effectively control the traffic of intoxicating liquors within their borders, the 2d section thereof is expressly concerned with the "transportation or importation," of intoxicating liquor into the States and does not, it is believed, apply to the advertisement of alcoholic beverages either within the State itself or outside of the State under conditions where such advertisements can be heard within the State.

The question of whether a State could pass legislation comparable to section 4 of H. R. 4627, however, does not appear to be limited to the question of whether it is authorized to do so by the 21st amendment to the Constitution. For it is conceivable that the States might be authorized to do so under their general police powers and totally aside from any possibly stemming from the 21st amendment. The Commission is not aware of any existing State legislation similar to that proposed in section 4 of H. R. 4627. It is understood, however, that legislation of this type has been introduced and is now pending in the North Dakota Legislature (N. D. House bill 836). The constitutional question concerning such legislation would, of course, be whether it is an improper impairment by the States of interstate commerce in view of the generally recognized interstate nature of radio broadcasting.

The recent decision of the United States Court of Appeals for the Third Circuit in DuMont Laboratory, Inc. v. Carroll (184 F. 2d 159, certiorari denied 340 U. S. 929) would appear to cast some doubt as to the legality of any such State enactment, at least in the absence of Federal enabling legislation. In the DuMont case the court held improper the exercise by the Commonwealth of Pennsylvania of any advance censorship of motion pictures for use by television broadcast stations. The court stated that Congress in enacting the Communications Act had fully occupied the field of radio and television broadcasting to the exclusion of any regulation by the States. It pointed out that while section 326 of the Communications Act expressly denied rights of censorship of radio and television programs to the Commission, Congress had otherwise provided for the control of such programs by the Commission and in so doing had effectively barred both the Commission and the States from exercising program control by means of advance censorship.

While States might not be able to pass laws restricting the radio or television advertising of alcoholic beverages, in the absence of congressional legislation they might be able to do so to a limited extent at least if such legislation were to be adopted.

Thus, by the Wilson Act of 1890 (26 Stat. 313; 27 U. S. C. 121), Congress expressly provided that alcoholic beverages transported into any State for use, consumption, or sale should, upon arrival, be subject to the operation or effect of laws of such State enactment in the exercise of its police powers in the same manner as if such beverages had been produced in the State. This was expressly made to apply even where such beverages were still within the "original packages." Pursuant to this law, it has been held that a State may prohibit local sales of out-of-State newspapers containing liquor advertising (State v. Delaye, 68 So. 993, Ala. 1915) and to regulate the local solicitations of orders for liquor to be shipped from out of the State (Delamater v. South Dakota, 205 U. S. 93, 1907). Whether the Wilson Act, which still remains in effect, but which was adopted long prior to the Communications Act of 1934 and does not refer to broadcasting, would, itself, be adequate authority for the States to adopt legislation of the type involved here is not clear. Perhap the best discussion of the general problem, including the view of a majority of the Supreme Court that appropriate State regulation of alcoholic beverages is not, absent conflicting Federal legislation, in contravention of the commerce clause of the Constitution, can be found in the several opinions in Carter v. Virginia (321 U. S. 131).

3. Does the Federal Communications Commission have jurisdiction under the present law to carry out the objectives of section 4 of H. R. 4627 without additional congressional action?

To the extent that this question looks toward possible Commission adoption of regulations precluding broadcast stations from carrying advertising of alcoholic beverages, it is clear that the answer is "No." For section 326 of the Communuications Act provides that nothing in the act "shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communications." It would also appear that the answer would equally be "No" if the question is whether the Commission could take into consideration broadcasts advertising alcoholic beverages in considering applications for new facilities or for renewal of existing facilities except, perhaps, where a station permits such broadcasts in violation of valid State or local prohibitions to the contrary. For while the Commission does have certain limited authority to consider a station's programing in licensing procedures, it is not believed it could reasonably consider as an adverse factor to any station under the public-interest standard, the fact that it was broadcasting_advertising material which meets all of the legal requirements of State and Federal law. Of course, if a particular station gave undue prominence to the advertising of alcoholic beverages at the expense of a balanced programing in the interest of the general public, if such station could be shown to be operated with the sole or primary objective of selling alcoholic beverages, or if it was utilized to propagandize for the use of alcoholic beverages to the exclusion of presentation of opposing viewpoints, such extreme activities might raise questions as to whether the station was operating in the public interest. But, in general, it would not appear that the Commission could, in the absence of Federal or State legislation, take any adverse action against a station because it devotes a portion of its advertising to the advertisement of alcoholic beverages. By direction of the Commission.

GEORGE C. MCCONNAUGHEY, Chairman.

DEPARTMENT OF STATE, Washington, D. C., March 8, 1955.

Hon. J. PERCY PRIEST,

Chairman, Committee on Interstate and Foregin Commerce,

House of Representatives.

DEAR MR. PRIEST: With reference to your letter of March 5, 1955, transmitting for the comment of the Department a copy of H. R. 4627, to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, and

for other purposes, the Department feels that the matter is of primary interest, inter alia, to the Federal Communications Commission and the Post Office Department.

This proposed legislation would, however, have an impact on our foreign relations. It would adversely affect the maintenance of markets which foreign producers have built up here over a period of time and which, in the case of some countries, are an important source of dollar earnings. The loss of such earnings would in turn have unfavorable consequences on our export trade. In addition, legislation of the sort envisioned in H. R. 4627 might result in keeping foreign newspapers and magazines out of this country, since foreign publications, like American publications, usually carry advertisements of alcoholic beverages.

In view, therefore, of the adverse effects which it would have on the foreign relations and the economic interests of the United States, the Department is opposed to enactment of H. R. 4627.

The Department has been informed by the Bureau of the Budget that there is no objection to the submission of this report. Sincerely yours,

Hon. J. PERCY PRIEST,

THRUSTON B. MORTON,

Assistant Secretary (For the Secretary of State).

INTERSTATE COMMERCE COMMISSION,
Washington, D. C., March 16, 1955.

Chairman, Committee on Interstate and Foreign Commerce,

House of Representatives, Washington, D. C.

DEAR CHAIRMAN PRIEST: Your letter of March 5, 1955, addressed to the Chairman of the Commission, and requesting a report and comments on a bill, H. R. 4627, introduced by Congressman Siler, to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, and for other purposes, has been referred to our Committee on Legislation. After careful consideration by that committee, I am authorized to submit the following comments in its behalf:

The question whether, from the standpoint of social welfare, advertisements of alcoholic beverages should be barred from interstate movement is not related to the jurisdiction of this Commission, and we are therefore unable to express a helpful opinion with respect to the merits of this legislative proposal. Section 3, however, is of some interest to us. It reads as follows:

"It shall be unlawful for any common carrier or for any private carrier for hire to transport from any State or Territory or the District of Columbia to any other State or Territory or the District of Columbia any newspaper, periodical, newsreel, photographic film, or record for mechanical reproduction advertising alcoholic beverages or containing the solicitation of any order for alcoholic beverages."

In the classification of carriers in the Interstate Commerce Act the term "private carrier for hire" is not used. It seems probable that as here used, the term is a misnomer for "contract carrier."

Although it is unlikely that carriers would be held liable for violations of the proposed act unless they knowingly transported advertisements of alcoholic beverages, we suggest that in order to remove any doubt in this respect that the bill be amended by inserting the word "knowingly" between the words "hire" and "to" in line 12, page 2, thereof. However, since they might be put to a considerable burden in trying to avoid any possible charge of a violation, the tendency might be for some carriers to refuse to accept any shipments of magazines, picture films, etc., rather than risk such a charge. In other instances where Congress has prohibited movement of certain articles in interstate commerce, the act has been made expressly inapplicable to carriers. For example, in the legislation involving misbranded woolen goods, the following provision was included (15 U. S. C. 68 a) :

"This section shall not apply to any common carrier or contract carrier in respect to a wool product shipped or delivered for shipment in commerce in the ordinary course of business."

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We suggest that a provision similar to this, amended to include any freight forwarder, be substituted for section 3 in the event that your committee should decide to report H. R. 4627.

Respectfully submitted.

Committee on Legislation.

The CHAIRMAN. The first witness this morning will be the author of the bill, the gentleman from Kentucky, Mr. Siler. You may proceed, Mr. Siler.

STATEMENT OF HON. EUGENE SILER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF KENTUCKY

Mr. SILER. Mr. Chairman and members of the committee: First, I would like to file 39 petitions in support of the bill, coming from organizations located as far apart as Maryland is from California, and make these petitions part of my testimony on this hearing.

The CHAIRMAN. The committee will receive the petitions for its files and is very happy to have them.

Mr. SILER. As the author of H. R 4627, a bill to prohibit the transportation in interstate commerce of advertisements of alcoholic beverages, it is my privilege and high honor to come before you in advocacy of my bill and to tell you of its salutariness and desirability and constitutionality.

My bill would, in my opinion, if enacted into law, stop practically all advertising of alcohol beverages by publication or radio or television all over America, because practically all of these media cross State lines in the flow of interstate commerce. Such a result would be entirely good and beneficial for the boys and girls of our country and even for confirmed alcoholics by way of removing the very sight of these temptations from before their eyes. Many eminent physicians and well-known scientists have gone on record placing alcohol in the same category with narcotic poison. Of course, all of us would be shocked and repulsed at any kind of advertising of narcotics for daily consumption. Yet we constantly have this blatant advertising of "booze" in all its harmful forms and although we know "booze" is truly the handmaiden of narcotic poison itself, still we only yawn complacently as we gaze at its colorful pictures on the advertising page or as we hear it and see it through radio and television.

National Safety Council tells us that about one out of four highway accidents comes from "booze," which stalks up and down the country like a hatchet man destroying precious lives and valuable property. Now, if a real honest-to-goodness hatchet man were loose on our streets with all his deadly fury unleashed daily upon innocent men, women, and children, we would immediately organize a strong posse to curtail him to the very point of extinction. Certainly we would never countenance respectable advertising of his supposed virtues. And if we, as a people, permit legal advertising of any imagined value of a 25 percent killer loose on the highways, such as "booze," then we are very deficient in common wisdom and completely callous about the preciousness of the lives of our children and other members of our family circles.

I am quite confident that when Judge Braude of Chicago stated that 33 percent of child delinquency comes from alcohol drinking, he knew whereof he spoke and had full authority for his statement. Not for one moment would we allow some harsh hussy to advertise the open door of her place of business for the allurement of our school children. And yet we permit the worst of hussies, a 33 percenter, to call daily upon our boys and girls to consort with her in all her destructive efforts against common decency. It is surely time to quash advertising of this narcotic, this hatchet man, this hussy, for the sake of a better country and a more salutary civilization.

It is equally true that a great many worthy people all over America have a strong and powerful desire about stopping "booze" advertising that constantly comes into their homes through publications and radio and television. My office has received letters from Maine to Texas to California expressing profound interest in H. R. 4627 and urging that everything possible be done to promote its passage and enactment into the law of our land. One Congressman told me he had a laundry basket plumb full of letters approving my bill. I have not heard of a single letter of disapproval that has come to the office of any Congressman.

One of my colleagues stated that his arms were tired from carrying the scores of letters he received in support of the Siler bill to ban "booze" advertising.

The World Almanac of 1955 shows a total membership of all the church bodies in America, Catholic, Jewish, Protestant and other, in excess of 95 millions, or more than 60 percent of our last official census. It is my firm belief that close to 90 percent of that church membership total or 85 millions of people in America would vote in favor of passage of this proposed legislation. Many good Americans are shocked and mortified at the uninvited solicitation that constantly comes into their sacred homes in behalf of "booze," and always it is dressed up as the nice white sheep of decency when underneath are fangs of the dark, uncivilized wolf ready to destroy all the unwary. I do not have the slightest doubt about the sincere desire of the majority of our American citizenship for early passage of H. R. 4627 and the complete banning of alcoholic advertising across our land.

Some good and patriotic people have harbored considerable doubts about the constitutionality of H. R. 4627, fearing that it may encroach upon the first amendment to our Constitution guaranteeing freedom of speech and of the press. I personally do not entertain those doubts and I speak now as a lawyer and as a former judge of the Kentucky Court of Appeals, the tribunal of last resort in my State. Our United States Supreme Court declared in 315 U. S. 568:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

I submit that all words of advertisement of "booze" are insulting and degrading to the average American (an estimated 85 millions of them). Such words "by their very utterance inflict injury." Such