author: WILKEY, Circuit Judge: PER CURIAM. BAZELON, Chief Judge:

text:
    YALE BROADCASTING COMPANY et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
    No. 71-1780.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 24, 1972.
    Decided Jan. 5, 1973.

      Mr. Tracy A. Westen, Washington, D. C., with whom Mr. Eric H. Smith, Washington, D. C., was on the brief, for petitioners.
    Mr. Joseph A. Marino, Associate Gen. Counsel, F. C. C., with whom Messers. John W. Pettit, Gen. Counsel, R. Michael Senkowski, Counsel, F. C. C., and Howard E. Shapiro, Atty., Dept, of Justice, were on the brief, for respondents. Mr. John H. Conlin, Associate Gen. Counsel, F. C. C. at the time the record was filed, also entered an appearance for respondent, F. C. C.
    Before DANAHER, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.
   WILKEY, Circuit Judge:

The source of this controversy is a Notice issued by the Federal Communications Commission regarding “drug oriented” music allegedly played by some radio stations. This Notice and a subsequent Order, the stated purposes of which were to remind broadcasters of a pre-existing duty, required licensees to have knowledge of the content of their programming and on the basis of this knowledge to evaluate the desirability of broadcasting music dealing with drug use. Appellant, a radio station licensee, argues first that the Notice and the Order are an unconstitutional infringement of its First Amendment right to free speech. In the alternative, appellant contends that they impose new duties on licensees and must, therefore, be the subject of rulemaking procedures. Finally it is argued that the statements’ requirements are impermissibly vague and that the FCC has abused its discretion in refusing to clarify its position. Finding none of these arguments of the licensee valid, we affirm the action of the FCC.

1. Substance of the First and Second Notices

In the late 1960’s and early 1970’s the FCC began receiving complaints from the public regarding alleged “drug oriented” songs played by certain radio broadcasters. In response to these complaints the Commission issued a Notice, the stated purpose of which was to remind broadcasters of their duty to broadcast in the public interest. To fulfill this obligation licensees were told that they must make “reasonable efforts” to determine before broadcast the meaning of music containing drug oriented lyrics. The Notice specified that this knowledge must be in the possession of a management level executive of the station, who must then make a judgment regarding the wisdom of playing music containing references to drugs or the drug culture.

This initial Notice led to substantial confusion within the broadcast industry and among the public. Confusion centered around the meaning of phrases such as “knowing the content of the lyrics,” “ascertain before broadcast,” and “reasonable efforts.”

In order to clarify these ambiguities, the FCC issued a second Memorandum and Order clarifying and modifying certain parts of the original Notice. The thrust of this Order was that (1) the Commission was not prohibiting the playing of “drug oriented” records, (2) no reprisals would be taken against stations that played “drug oriented” music, but (3) it was still necessary for a station to “know” the content of records played and make a “judgment” regarding the wisdom of playing such records.

II. Interpretation of the Definitive Order

Many of appellant’s fears and arguments stem from the apparent inconsistencies between the Notice and the subsequent Order. It is quite clear, however, that the Order “constitutes the Commission’s definitive statement” regarding broadcaster responsibility.^.To the ex-' tent that the two are inconsistent or confused, we treat the Notice, as we believe the Commission intends, as superseded by the Order. Reference to the Commission’s requirements is to those established by the Order.

Once the Order is taken as definitive, it becomes fairly simple to understand what the FCC asks of its licensees. The Order recognizes the gravity of the drug abuse problem in our society. From this basis, the Order proceeds to remind broadcasters that they may not remain indifferent to this severe problem and must consider the impact that drug oriented music may have on the audience.

The Commission then makes the common sense observation that in order to make this considered judgment a broadcaster must “know” what it is broadcasting.

The Commission went to great lengths' to illustrate what it meant by saying that a broadcaster must “know” what is being broadcast. The Order emphasizes that it is not requiring the unreasonable and that the Commission was “not calling for an extensive investigation of each. . . . record” that dealt with drugs. It also made clear that there was no general requirement to pre-screen records.

The Commission in its Order was obviously not asking broadcasters to decipher every syllable, settle every ambiguity, or satisfy every conceivable objection prior to airing a composition. A broadcaster must know what he can reasonably be expected to know in light of the nature of the music being broadcast. It may, for example, be quite simple for a broadcaster to determine that an instrumental piece has little relevance to drugs. Conversely, it may be extremely difficult to determine what thought, if any, some popular lyrics are attempting to convey. In either case, only what can reasonably be understood is demanded of the broadcaster.

Despite all its attempts to assuage broadcasters’ fears, the Commission realized that if an Order can be misunderstood, it will be misunderstood — at least by some licensees. To remove any excuse for misunderstanding, the Commission specified examples of how a broadcaster could obtain the requisite knowledge. A licensee could fulfill its obligation through (1) pre-screeing by a responsible station employee, (2) monitoring selections while they were being played, or (3) considering and responding to complaints made by members of the public. The Order made clear that these procedures were merely suggestions, and were not to be regarded as either absolute requirements or the exclusive means for fulfilling a station’s public interest obligation.

Having made clear our understanding of what the Commission has done, we now take up appellant’s arguments seri-atim.

III. An Unconstitutional Burden on Freedom of Speech

Appellant’s first argument is that the Commission’s action imposes an unconstitutional burden on a broadcaster’s freedom of speech. This contention rests primarily on the Supreme Court’s opinion in Smith v. California, in which a bookseller was convicted of possessing and selling obscene literature. The Supreme Court reversed the conviction. Although the State had a legitimate purpose in seeking to ban the distribution of obscene materials, it could not accomplish this goal by placing on the bookseller the procedural burden of examining every book in his store. To make a bookseller criminally liable for all the books sold would necessarily “tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature . ”

Appellant compares its own situation to that of the bookseller in Smith and argues that the Order imposes an unconstitutional burden on a broadcaster’s freedom of speech. The two situations are easily distinguishable.

Most obviously, a radio station can only broadcast for a finite period of twenty-four hours each day; at any one time a bookstore may contain thousands of hours’ worth of readable material. Even if the Commission had ordered that stations pre-screen all materials broadcast, the burden would not be nearly so great as the burden imposed on the bookseller in Smith. As it is, broadcasters are not even required to pre-screen their maximum of twenty-four hours of daily programming. Broadcasters have specifically been told that they may gain “knowledge” of what they broadcast in other ways.

A more subtle but no less compelling answer to appellant’s argument rests upon why knowledge of drug oriented music is required by the Commission. In Smith, knowledge was imputed to the purveyor in order that a criminal sanction might be imposed and the dissemination halted. Here the goal is to assure the broadcaster has adequate knowledge. Knowledge is required in order that the broadcaster can make a judgment about the wisdom of its programming. It is beyond dispute that the Commission requires stations to broadcast in the public interest. In order for a broadcaster to determine whether it is acting in the public interest, knowledge of its own programming is required. The Order issued by the Commission has merely reminded the industry of this fundamental metaphysical observation — in order to make a judgment about the value of programming one must have knowledge of that programming.

We say that the licensee must have knowledge of what it is broadcasting; the precise understanding which may be required of the licensee is only that which is reasonable. No radio licensee faces any realistic possibility of a penalty for misinterpreting the lyrics it has chosen or permitted to be broadcast. If the lyrics are completely obscure, the station is not put on notice that it is in fact broadcasting material which would encourage drug abuse. If the lyrics are meaningless, incoherent, the same conclusion follows. The argument of the appellant licensee, that so many of these lyrics are obscure and ambiguous, really is a circumstance available to some degree in his defense for permitting their broadcast, at least until their meaning is clarified. Some lyrics or sounds are virtually unintelligible. To the extent they are completely meaningless gibberish and approach the equivalent of machinery operating or the din of traffic, they, of course, do not communicate with respect to drugs or anything else, and are not within the ambit of the Commission’s order. Speech is an expression of sound or visual symbols which is intelligible to some other human beings. At some point along the scale of human intelligibility the sounds produced may slide over from characteristics of free speech, which should be protected, to those of noise pollution, which the Commission has ample authority to abate.

We not only think appellant’s argument invalid, we express our astonishment that the licensee would argue that before the broadcast it has no knowledge, and cannot be required to have any knowledge, of material it puts out over the airwaves. (We can understand that' the individual radio licensees would not be expected to know in advance the content or the quality of a network program, or a free flowing panel discussion of public issues, or other audience participation program, and certainly not a political broadcast. But with reference, to the broadcast of that which is frequently termed “canned music,” we think the Commission may require that the purveyors of this to the public make a reasonable effort to know what is in the “can.” No producer of pork and beans is allowed to put out on a grocery shelf a can without knowing what is in it and standing back of both its content and quality. The Commission is not required to allow radio licensees, being freely granted the use of limited air channels, to spew out to the listening public canned music, whose content and quality before broadcast is totally unknown.

Supposedly a radio licensee is performing a public service — that is the raison d’etre of the license. If the licensee does not have specific knowledge of what it is broadcasting, how can it claim to be operating in the public interest? Far from constituting any threat to freedom of speech of the licensee, we conclude that for the Commission to have been less insistent on licensees discharging their obligations would have verged on an evasion of the Commission’s own responsibilities.

By the expression of the above views we have no desire whatsoever to express a value judgment on different types of music, poetry, sound, instrumentation, etc., which may appeal to different classes of our most diverse public. “De gus-tibus non est disputandum.” But what we are saying is that whatever the style, whatever the expression put out over the air by the radio station, for the licensee to claim that it has no responsibility to evaluate its product is for the radio station to abnegate completely what we had always considered its responsibility as a licensee. All in .all, and quite unintentionally, the appellant-licensee in its free speech argument here has told us a great deal about quality in this particular medium of our culture.

IV. The Requirement of Rulemaking

We turn next to appellant’s contention that the Commission in its Order has imposed a new duty on the broadcasting industry. If the FCC were indeed imposing a new duty on its licensees, its action should be subject to the public debate and scrutiny of rulemaking proceedings. If the Commission is simply reminding broadcasters of an already existing duty, rulemaking is not required. We conclude that the stated purpose and the actual result of the Commission’s Notice and Order was to remind the industry of a pre-existing duty.

The basis for this pre-existing duty has existed since the early days of government regulation of the airways. The most thorough articulation of this duty was given in the Commission’s 1960 Program Policy Statement wherein it said:

Broadcast licensees must assume responsibility for .alb-material which is broadcast through Their facilities. This includes all programs and advertising material which they present to the public. . . . This duty is' personal to the licensee and may not] be delegated. He is obligated to bring his positive responsibility affirmatively to bear upon all who have a hand in providing broadcast material for transmission through his facilities so as to assure the discharge of his duty to provide acceptable program schedule consonant with operating in the public interest in his community.

This 1960 Statement and the Order challenged here are remarkably similar. Both require the broadcaster to assume responsibility for what is broadcast, that the broadcaster actively exercise his judgment in pursuit of this responsibility, and that this exercise of judgment result in programming that is in the public interest. The only real difference between the 1960 Statement and the Order under attack is that the Order (1) deals with programming as it relates to drugs rather than programming generally, and (2) specifically states that a broadcaster must have “knowledge” of what he is programming.

There is a long-standing Commission policy of reminding licensees of their responsibility in a particular area whenever there appears to be licensee indifference. A notice quite similar to the one challenged here was issued with respect to foreign language broadcasting. There, a Commission inquiry had revealed that many licensees were carrying foreign language broadcasts without having any familiarity with the foreign language. Broadcasters were accordingly advised:

Licensee responsibility requires that internal procedures be established and maintained to insure sufficient familiarity with the foreign language to know what is being broadcast and whether it conforms to the station’s policies and to the requirements of the Commission’s rules. Failure of licensees to establish and maintain such control over foreign language programming will raise serious questions as to whether the station’s operation serves the public interest.

In addition to this example, the Commission has reminded broadcasters of their obligations in a number of other specific situations

It is entirely reasonable for the Commission to issue “reminders” referring to specific areas when such problems exist. The Commission need not content itself with repeating general policy statements when the general policy is being violated in a very specific way. It is much more logical for the Commission to point out the specific problem and then illustrate how the general policy applies in the particular situation.

It is likewise irrelevant that the current Order requires broadcasters to “know” what they are programming. Such a requirement imposes no new burden upon the broadcasting industry. Indeed, the requirement that the licensees broadcast in the public interest necessitates some sort of knowledge on their part. Undoubtedly, the only reason the Commission stressed the point in the Order was because of certain broadcasters’ absurd contention that they either did not or could not know what they were broadcasting. As we noted in Part III, it cannot be argued that no knowledge has ever been required of broadcasters.

In its less extreme form appellant’s contention seems to be that, although some form of knowledge has always been required, the Notice and Order impose a much greater burden of knowledge on the broadcasting industry than has previously existed. This argument is baseless. The requisite degree of knowledge is not absolute but, rather, is quite liberal. Indeed, a licensee could not do less than is asked and still fulfill its obligation to broadcast in the public interest. In sum, the main thrust of the Commission’s earlier Notice and of its later Order is that whether a song presents the banal observations of a moon-struck adolescent, resembles two enraged alley cats fighting in a garbage can, or contains the subtle reflections of a master poet, a licensee may not broadcast ignorant of the content of his programming.

V. Asserted Vagueness

Perhaps the most strenuously urged and least meritorious of appellant’s arguments are based upon the contention that the Commission’s Order is imper-missibly vague. From this common starting point, appellant argues (1) that the Order is unconstitutionally vague, or (2) that the Order is so vague that the Commission abused its discretion in refusing to clarify it.

A.

It is indisputable that generally the Government may not draw a line between permissible and impermissible speech in such an unclear and imprecise manner that “men of common intelligence must necessarily guess at its meaning and differ as to its application.” We shall assume for the moment that this standard applies with full force to the broadcast industry. Even under this standard the Commission’s Order is not unconstitutionally vague. In fact, the Commission has done an admirable job of explaining the nature and degree of knowledge expected of broadcasters. As illustrated in Part II of this opinion, this court has no difficulty understanding what the Commission expects of its licensees.

Removed from appellant’s obfuscation, the structure, purpose and requirements of the Order are quite clear. First, the Order defines what it is attempting to achieve. Secondly, it provides three examples of ways a broadcaster may attain this goal. Thirdly, the Order does not forbid a broadcaster from attaining the goal by another means. Thus the Or-~A der avoids the constitutional infirmity of vagueness by providing explicit ways for a broadcaster to meet its requirements while simultaneously avoiding ov-erbreadth by not limiting compliance to l the methods specified.

B.

A second argument based on the alleged vagueness of the Order is that the Commission has abused its discretion in failing to clarify the nature of its requirements. Specifically, appellant charges that the Commission abused its discretion in declining to issue a declaratory judgment on the acceptability of its proposed plan for complying with the Notice.

It is clearly within the discretion of the Commission to issue a Declaratory Order on a licensee’s proposal. It is equally clear, however, that the Commission is not required to issue such a declaratory statement merely because a broadcaster asks for one. There are over 7,500 radio stations in this country. If the Commission were required to pass upon, approve or disapprove, the methods of operations of each of these stations, the administrative task would be enormous. This disinclination to rule here is in accord with the Commission’s long standing policy of refusing to issue interpretative rulings or advisory opinions whenever the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them.

An administrative agency should not be compelled to issue a clarifying statement unless its failure to do so can be shown to be a clear abuse of discretion. Here the Commission could reasonably conclude that it had said enough and that the rest was up to the “licensee’s individual responsibility for programming.” We will not, therefore, compel the Commission to issue a ruling on appellant’s proposed plan for compliance.

VI. Conclusion

In spite of the horrendous forebodings which brought appellant into court the fact is that appellant has recently had its license renewed. Likewise, there has been no showing or suggestion that the standard enunciated in the Order has been employed to deny any license to a broadcaster. If such a denial does occur and can be shown to be unfair or due to a misapplication of the Commission’s own guidelines (as described in Part II of our opinion), then redress may be sought in the courts. Until that time, appellant might commit its energies to the simple task of understanding what the Commission has already clearly said, rather than instituting more colorful but far less fruitful actions before already heavily burdened federal courts.

For the reasons given above, the action of the Federal Communications Commission is

Affirmed.

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 in 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. 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”. After reviewing the panel decision, I moved for rehearing of the case en banc.

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. 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, 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.” 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.”

The Commission’s action was reported by responsible organs of the press as an act of censorship. 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. Broadcasters circulated the list of 22 songs throughout the industry as a “do not play” list.

The Commission's subsequent “Memorandum Opinion and Order”, issued on April 16, 1971, and designated by the Commission 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. 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. A third Commissioner issued a dissenting statement indicating that the Order did not restore the status quo. 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.” 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.

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. . . ” Courts have a jecial responsibility to protect First Amendment rights and a special expertise for doing so.

In NAACP v. Button, Mr. Justice Brennan observed that “precision of regulation must be a touchstone” in the area of freedom of expression. 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. 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.

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. If that principle applies here, as petitioners argue, then there is a judicially cognizable injury 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 ? Do the particular songs at which these directives were aimed have a demonstrable connection with illegal activities? 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 ?

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:

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.

      . There are actually two major Federal Communications Commission actions involved in this dispute. The first is a Public Notice, 28 F.C.C.2d 409 (1971). The second is a Memorandum Opinion and Order, 31 F.C.C.2d 377 (1971). The sole purpose of the second item mentioned above was to clarify and modify the Public Notice.

      . Public Notice, 28 F.C.C.2d 409 (1971).

      . Memorandum Opinion and Order, 31 F.C.C.2d 377 (1971).

      . In its Memorandum and Order, the FCC noted that its initial Notice had been widely misconstrued. The Commission then said:
      [I]t follows that where a notice is so erroneously depicted, we should appropriately call attention to the error. We do so in this Memorandum and Order. While it adheres fully to the above noted established policy of licensee responsibility, this opinion treats the matter in greater detail and this constitutes the Commission’s definitive statement in this respect.
      31 F.C.C.2d at 378.

      . “Clearly, in a time when there is an epidemic of illegal drug use — when thousands of young lives are being destroyed by use of drugs like heroin, methedrin (“speed”), cocaine — the licensee should not be indifferent to the question of whether his facilities are being used to promote the illegal use of harmful drugs.” IUd.

      . “The Commission did make clear in the Notice that the broadcaster could jeopardize his license by failing to exercise license responsibility in this area. Except as to broadcasts by political candidates, the licensee is responsible for the material broadcast over his facilities. The thrust of the Notice is simply that this concept of licensee responsibility extends to the question of records which may promote or glorify the use of illegal drugs. The licensee should know whether his facilities are being used to present again and again a record which urges youth to take heroin or cocaine— that it is a wonderful, joyous experience.” Id. at 379.

      . Id. at 380.

      . As noted below, the Commission made reference to methods of compliance other than pre-screening in the Memorandum and Order. In a subsequent Order the Commission explicitly disclaimed any intention of requiring pre-screening:
      We think it appropriate to point out, however, that petitioners’ repeated reference to a pre-screening requirement for each record is an erroneous interpretation of our April 16, 1971 order.
      Memorandum Opinion and Order, 81 F.C.C.2d 385, 386 n. 1 (1971).

      . “We recognized in the ADL case, supra, that imposition of any undue verification process ‘could significantly inhibit the presentation of controversial issue programming’ (6 F.C.C.2d at p. 386) ; cf. Washington Post v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966). That is equally so here. Therefore, what is required is simply reasonable and good faith attention to the problem. We wóuld conclude this aspect as we did in the prior Notice.
      Thus, here as in so many other areas, it is a question of responsible, good faith action by the public trustee to whom the frequency has been licensed. No more, but certainly no less is called for.”
      31 F.C.C.2d 377, 380.

      . “Again, it may be desirable to proceed by analogy. Licensees instruct their employees that before presenting taped material containing questionable language (i. e., of an indecent or obscene nature), the matter should be brought to the attention of a responsible management official. . . . Further, while such material might be presented once in a series part of which has been screened and approved, its presentation is then picked up, either by complaint or station personnel, and a judgment made as to further presentation. So also here, disc jockeys could be instructed that where there is a question as to whether a record promotes the illegal drug usage, a responsible management official should be notified so he can exercise his judgment. It may be that a record which raises an issue in this respect is played once, but then the station personnel who have heard it will be in a position to bring it to the attention of the appropriate management official for his judgment.” Ibid.

      . See note 9, supra.

      . 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

      . Id. at 153-154, 80 S.Ct. at 218.

      . See footnote 10, supra, and accompanying text. Appellant attempts to buttress its argument based on Smith by pointing to a number of cases that reject the contention that purveyors of public information are required to verify the truth of controversial statements. See Appellant’s Brief at 41-42. Those cases are even less relevant than Smith. They all involve fact situations in which obtaining the needed information would be most difficult or even impossible.

      . Cf. Noise Control Act of 1972, Pub.L. No. 92-574, 86 Stat. 1234 (1972).

      . Citizens Communications Center v. FCC, 145 U.S.App.D.C. 32, 35, 447 F.2d 1201, 1204 n. 5 (1971).

      . See, e. g., KFKB Broadcast Association v. Federal Radio Commission, 60 U.S.App.D.C. 79, 81, 47 F.2d 670, 672 (1931).

      . Report and Statement of Policy re: Commission En Banc Programming Inquiry, 25 Fed.Reg. 7291, 7295, 30 R.R. 1902, 1912-1913 (1960).

      . Public Notice Concerning Foreign Language Programs, 9 P. & F. Radio Regs. 2d 1901 (1967).

      . Ibid.

      . See, e. g., Licensee Responsibility With Respect to the Broadcast of False, Misleading or Deceptive Advertising, FCC 61-1316 (November 7,1961).
      Appellant, in its reply brief, attempts to distinguish these examples by pointing out that they deal with unique facts and are based upon different legal theories than those involved in this case. This is true. We make use of these examples here, however, for the very limited purpose of illustrating that the Commission often draws attention to and makes statements regarding specific areas of licensee activity.

      . Appellant attempts to buttress its argument that the Order imposes a new duty by pointing to the widespread use of live and network programming. The argument is that since it is impossible to know prior to broadcast what is in those types of programs, the Notice must, if it requires any knowledge at all, impose a new duty. This argument ignores the fact that the Notice imposes no absolute requirement to pre-screen or know what a reCord says prior to broadcast. See footnote 8, supra. Pre-screening is merely one way that a broadcaster may fulfill its obligation.

      . Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).

      . See generally the discussion in Part II of the opinion.

      . “The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.” 5 U.S.C. § 554(e) (1970) (emphasis added).

      . “[I]n applying the public interest standard to programming, the Commission walks a tightrope between saying too much and saying too little. In most areas it has rbsolved this dilemma by imposing only general affirmative duties — e. g., to strike a balance between the various interests of the community, or to provide a reasonable amount of time for the presentation of programs devoted to the discussion of public issues. . . . Given [the Commission’s] long-established authority to consider program content, this general approach probably minimizes the dangers of censorship or pervasive supervision.” Banzhaf v. FCC, 132 U.S.App.D.C. 14, 27, 405 F.2d 1082, 1095 (1968).

      . See, e. g., Use of Broadcast Facilities by Candidates for Public Office, 24 F.C.C.2d 832, 885 (1970).

      . Banzhaf v. FCC, 132 U.S.App.D.C. 14, 27, 405 F.2d 1082,1095 (1968).

        . 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.


source: Caselaw Access Project

author: LEVENTHAL, Circuit Judge: J. SKELLY WRIGHT, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America v. James J. BROWN, Appellant.
    No. 24646.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 8, 1971.
    Decided Jan. 8, 1973.
    Rehearing Denied April 5, 1973.

      'Mr. Jon P. Axelrod, Washington, D. C., with whom Mr. Norman Lefstein, Washington, D. C., was on the brief, for appellant. Mrs. Barbara A. Bowman and Karen E. Moore, Washington, D. C., also entered appearance for appellant.
    Mr. David G. Larimer, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
    Before DANAHER, Senior Circuit Judge, and WRIGHT and LEVEN-THAL, Circuit Judges.
   LEVENTHAL, Circuit Judge:

Appellant was indicted on 8 counts of robbery, 11 of assault with a deadly weapon, and one count each of rape and carrying a pistol without a license. At a trial in 1969, without a jury, by Judge William B. Jones, he was acquitted by reason of insanity. Following that acquittal, appellant was given a hearing, pursuant to 24 D.C.Code § 301(d), as construed in Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968), to determine whether he was mentally ill and ought to be retained in custody in a mental hospital. He demanded a jury. The District Judge instructed the jury that the issue of mental illness vel non was to be determined by a preponderance of the evidence. The jury found appellant was mentally ill, and Judge Jones ordered appellant committed to St. Elizabeths Hospital until released in accordance with 24 D.C.Code § 301(e). This appeal followed.

That preponderance standard was the one set forth in the Bolton opinion as applicable to this post-acquittal commitment proceeding. Appellant claims: (1) In view of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Due Process requires the reasonable doubt standard of proof in an involuntary civil commitment proceeding. (2) Equal Protection requires that proceedings to maintain detention of persons who have been acquitted of criminal charges by reason of insanity be governed by the same standard of proof as applies in proceedings for civil commitment of other mentally ill people who are thought to be dangerous. We find no error in the trial court’s instructions and we affirm.

As to the standard of proof in an involuntary civil commitment proceeding, the pertinent statute provides that the court may order hospitalization or other treatment “if the court or jury finds that the person is mentally ill and, because of that illness, is likely to injure himself or other persons if allowed to remain at liberty. . . .” D.C.Code § 21-545. That provision, and its predecessor, have been construed to require a showing by the party seeking civil commitment “by a preponderance of the evidence.” Lynch v. Overholser, 369 U.S. 705, 711, 714, 82 S.Ct. 1063, 1069, 8 L.Ed.2d 211 (1962); In re Alexander, 125 U.S.App.D.C. 352, 372 F.2d 925 (1967); Bolton v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 652 (1966).

The claim that a reasonable-doubt standard is constitutionally requisite is based on In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Winship involved a juvenile delinquency proceeding brought under a New York statute defining delinquency as acts which, if done by an adult, would constitute a crime.

Notwithstanding that juvenile court proceedings are styled “civil” by New York, as by most other states, the Court held that the elements of due process would not be substantially different from those pertaining to the criminal process, because in either case, the risks connected with being wrong would be much the same; a substantial and involuntary deprivation of liberty combined with the odium of a stigma upon one’s good name. Justice Harlan’s concurring opinion expatiated on the reasons for a higher standard of proof in criminal (and delinquency) eases than in civil cases, why the nature of the issues makes a difference in terms of requisite burden of proof.

We acknowledge that a substantial contention can be made that the elements of detention and “stigma” involved in involuntary commitment to a mental hospital by civil process, and the nature of the issues of mental illness and likelihood of dangerousness to self or others, requires that these issues be proved by a standard greater than the “bare” preponderance of evidence standard applicable in an ordinary civil action between two private persons. However, it may be that where the issue involved is not the occurrence of an event, but the individual’s mental condition and propensity (“dangerousness”), society may fairly appreciate that if it is to combine realism with humanity and fairness it might sensibly adopt a standard like “clear and convincing evidence” — requiring more certitude than bare “preponderance of evidence” but not quite as much as “beyond a reasonable doubt.”

In Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966), the Court held that banishment by a deportation order could not permissibly be accomplished with the same “preponderance” standard as is applicable to negligence cases, but the Court did not require the same standard of proof as a criminal proceeding and instead fashioned the intermediate standard of “clear, unequivocal, and convincing evidence.” 385 U.S. at 285, 87 S.Ct. 483. As the Court noted, this standard has been applied in civil cases involving allegations of particular significance. See also New York Times Co. v. Sullivan, 376 U.S. 254, 285-286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), where the Court held that “convincing clarity” is the constitutional standard requisite for a finding of malice justifying damages for a statement defaming a public official in regard to his official conduct.

We entered an order suspending consideration of this case pending determination by the Supreme Court of cases that would, we thought, have resolved the constitutional requirement for civil commitment. The Supreme Court’s ultimate disposition left that issue unresolved. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972). Reverting to the case before us, we now conclude that it is not necessary to determine that constitutional issue. Even assuming that a standard of persuasion higher than “preponderance” is mandated for involuntary civil commitment proceedings, it is not necessarily applicable as to the issue of commitment of a person who has successfully claimed the defense of insanity in a criminal proceeding. In Lynch v. Overholser, supra, Justice Harlan’s opinion, after noting the “elaborate procedural precautions included in the civil commitment provisions” pointed out that these did not necessarily apply to the person who successfully presses an insanity defense to a criminal proceeding. See 369 U.S. 705 at 715, 82 S.Ct. 1063 at 1069:

The criminal defendant who chooses to claim that he was mentally irresponsible when his offense was committed' is in quite a different position. It is true that he may avoid the ordinary criminal penalty merely by submitting enough evidence of an abnormal mental condition to raise a reasonable doubt of his responsibility at the time of committing the offense. Congress might have thought, however, that having successfully claimed insanity to avoid punishment, the accused should then bear the burden of proving that he is no longer subject to the same mental abnormality which produced his criminal acts. Alternatively, Congress might have considered it appropriate to provide compulsory commitment for those who successively invoke an insanity defense in order to discourage false pleas of insanity. We need go no further here than to say that such differentiating considerations are pertinent to ascertaining the intended reach of this statutory provision.

Persons acquitted by reason of insanity have been determined to have been guilty, beyond a reasonable doubt of acts that impaired the safety of the community. They are in a different position, at least for some purposes, from persons who have not committed any such acts but are sought to be civilly committed solely because of dangers and propensities arising from mental condition. So much was acknowledged in Bolton v. Harris as a justification for commitment of the insanity-acquitted without the predicate required for civil commitment, without either a hearing or determination of present mental condition, for the period required in order to make a determination of present condition.

Bolton also held that the difference between the two groups did not warrant continued holding of the insanity-acquitted without a judicial hearing. The soundness of this is undisputed, and indeed, as was noted in United States v. Brawner, 471 F.2d at 996, 997 was incorporated by Congress into the 1970 legislation (cited in note 3). Bolton further held that the procedures culminating in the judicial determination, after hearing, on continued detention vel non should be substantially similar to those in proceedings, under 21 D.C.Code § 545(b), for civil commitment of the dangerous mentally ill. No question arises as to this ruling, and the insanity-acquitted person has substantially all the procedural protection of 21 D.C.Code § 545, including provisions for examinations, notice, counsel, cross-examination, and jury trial.

What appellant seeks is a decision that changes the Bolton ruling that on the issue of detention the burden is on the Government to prove present mental illness by a preponderance of the evidence. Appellant seeks that change on the ground that the Bolton opinion erroneously assumed that this was the standard for civil commitment. If there was such an erroneous assumption it was offset by another erroneous assumption that the standard on burden of proof must be the same for both groups.

There is justification for the preponderance of proof standard for confinement of the insanity-acquitted even assuming a higher standard is required prior to civil commitment for propensity. We think this justification exists even though, at the same time, we would find no justification for denying the insanity-acquitted the right to jury trial that is recognized for those involved in civil commitment proceedings.

The difference between the classes for purposes of burden of proof, is in the extent of possibility and consequence of error. If there is error in a determination of mental illness that results in a civil commitment, a person may be deprived of liberty although he never posed any harm to society. If there is a similar error in confinement of an insanity-acquitted individual, there is not only the fact of harm already done, but the substantial prospect that the same error, ascribing the quality of mental disease to a less extreme deviance, resulted in a legal exculpation where there should have been legal responsibility for the antisocial action.

The matter now being discussed is suffused with the broad consideration that modern standards of the insanity defense, not restricted to those who do not know right from wrong, call for the acquittal of persons who “may have meaningful elements of responsibility.” And over and above the difficulty of situations where the issue of mental responsibility is doubtful, we cannot wholly ignore the danger of calculated abuse of the insanity defense, referred to in Lynch v. Overholser.

Baxstrom v. Herold, does not cut across our analysis. It involved a New York statute law providing that a state prisoner, at the end of his sentence, could be civilly committed without the jury trial and hearing generally required prior to civil commitment. The Court said (at 111-112, 86 S.Ct. at 768):

“For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments.”

Insofar as Baxstrom pertains to procedures, its spirit may be applicable to all persons in prison. But insofar as it may govern burden and standard of proof, it is limited to persons at the end of the penal term. Whatever protection can be available to society from detention of offenders has been achieved, and whatever additional protection is now needed because of present danger from mental illness must be sought from ex-convicts on the same basis as from non-convicts who are dangerous by reason of mental illness. In contrast, the insanity-acquitted present different considerations on the issue of burden of proof on detention.

The clear implications of the foregoing analysis, and Baxstrom, require, however, that when the individual has been in detention for a considerable period of time, his continued detention vel non should be governed by the same standard of burden of proof as applies to civil commitments. The extent of that period calls for sound discretion, would take into account e. g., the nature of the crime (violent or not), nature of treatment given and response of the person, would generally not exceed five years, and should, of course, never exceed the maximum sentence for the offense, less mandatory release time.

In the case before us that period of time has not been reached and the committal judgment of the District Court reflecting a determination based on preponderance of the evidence is sustained. We reiterate the holding of Bolton v. Harris on the preponderance standard, although we acknowledge some difference in underlying reasoning. Affirmed.

J. SKELLY WRIGHT, Circuit Judge,

dissenting:

The majority opinion acknowledges that recent Supreme Court decisions may well require a higher standard of proof in ordinary civil commitment proceedings than “preponderance of the evidence.” I agree. But the majority holds that such a higher standard need not apply in proceedings to commit a person who has been found not guilty by reason of insanity. I believe the disparity in treatment sanctioned by the majority is logically untenable, rests on unsupportable policy grounds, and is in conflict with prior decisions of this court and the Supreme Court. Therefore, I respectfully dissent.

In Bolton v. Harris, 130 U.S.App.D.C. 1, 10, 395 F.2d 642, 651 (1968), this court held that persons acquitted of criminal charges by reason of insanity could not be civilly committed under 24 D.C.Code § 301(d) (1967) without being provided a judicial hearing with procedures “substantially similar” to those in ordinary civil commitment proceedings. These safeguards included a right to a judicial hearing on the issue of whether the defendant was presently dangerous as a result of mental illness, imposition of the burden of proof on the Government, trial by jury, and a right to counsel. Bolton relied heavily on this court’s earlier decision in Cameron v. Mullen, 128 U.S.App.D.C. 235, 243, 387 F.2d 193, 201 (1967), where we said that “while prior criminal conduct is relevant to the determination whether a person is mentally ill and dangerous, it cannot justify denial of procedural safeguards for that determination.”

Both Bolton and Mullen were based on Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966), where the Supreme Court held that New York’s statutory procedure permitting civil commitment of persons at the end of jail sentences without the jury trial safeguard afforded persons subject to ordinary civil commitment violated equal protection. The Court held that the fact of past criminal conduct lacked a sufficient connection with current mental illness to justify lesser procedural safeguards. “Classification of mentally ill persons as either insane or dangerously insane of course may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all.” Id. at 111, 86 S.Ct. at 763. (Emphasis in original.) The Court in Baxstrom further stated that “[a] person with a past criminal record is presently entitled to a hearing on the question whether he is dangerously mentally ill so long as he is not in prison at the time civil commitment proceedings are instituted. Given this distinction, all gemblance of rationality of the classification, purportedly based upon criminal propensities, disappears.” Id. at 115, 86 S.Ct. at 764.

Bolton and Baxstrom stand for a basic proposition that a proven history of past dangerousness or illness, while certainly admissible in evidence, may not be used as an excuse to abrogate or change well recognized safeguards, including burden of proof, in civil commitment proceedings, or their equivalent, to determine present dangerousness or illness. The majority ignores this teaching of Bax-strom and Bolton. Moreover, my brethren fail to appreciate that acquittal by reason of insanity says precious little on the question whether a person presently suffers from mental illness. At most, an insanity acquittal means that at the time the charged crime was committed, which ordinarily would be months or sometimes years before the Section 301(d) hearing, there was a reasonable doubt that the defendant was free of such ah illness. Since a reasonable doubt as to sanity is hardly tantamount to a conclusion of mental illness, there may well be only the flimsiest relation between the Government’s failure to prove past capacity and current incapacity. Thus it can hardly be argued that the-prior acquittal, standing alone, has any necessary bearing as a factual matter on the mental illness finding to be made in the Section 301(d) hearing.

Yet the thrust of the majority opinion is that appellant Brown’s prior acquittal must somehow skew the factual determination to be made in the current Section 301(d) hearing. As I have always understood the issue of burden of proof, the standard we adopt reflects our view as to the risk of error we are willing ¿to accept in our judgments. A heavy burden of proof in criminal cases, for example, reflects our belief that, given the consequences of conviction, only a minimal chance of error will be tolerated, that it is better to risk letting culpable defendants go free as the price of ensuring that those not culpable will be acquitted to the greatest extent possible. In civil commitment cases the majority seems prepared to concede that this logic —basically, our abhorrence of wrongful incarceration — dictates a greater burden of proof than “preponderance of evidence” as to the relevant issues of illness and dangerousness. But with respect to those acquitted of criminal charges by reason of insanity, my brethren pull back. They do this notwithstanding the teaching of Baxstrom and Bolton and in spite of the fact that the prior judgment of acquittal speaks in muted tones at best to the central question of current illness.

The majority’s central proposition is that Brown should be treated differently because he has already been found to have committed a series of indisputably dangerous felonies. These acts are said to dictate lesser solicitude for his rights —as expressed through a burden of proof —than if he were sought to be committed before he was found to have committed such acts. But it should be obvious that these acts, standing alone, go only to the civil commitment standard of dangerousness, which Brown’s counsel has stipulated is not at issue, and not to the additional, central, question of mental illness. Yet the majority opinion is willing to accept the non sequitur that the admitted fact of dangerousness in the past must have a necessary bearing on the court’s finding on the question of illness in the present.

The underlying justification for the majority’s acceptance of this illogic seems to be its fear that strengthening the burden of proof in Section 301(d) proceedings will cause wholesale release of persons acquitted of crimes by reason of insanity. This possibility, coupled with the fact that persons with “meaningful elements of responsibility” may be acquitted by reason of insanity, is said to raise the spectre that the insanity defense may be abused. While this argument has a superficial appeal, it clearly proves too much. For its logical import — a policy of relaxing constitutional safeguards in incarcerating those acquitted by reason of insanity — was rejected in Bolton where we held that mandatory civil commitment following a successful insanity defense was constitutionally unjustifiable and that the procedural safeguards used in ordinary civil commitment proceedings were required. No one will disagree that the imposition of the safeguards required by Bolton reduces the probability that all those acquitted by reason of insanity will be incarcerated. But in my judgment, Bax-strom precludes this court from overruling Bolton, even if a majority of its members were so inclined.

Finally, in my view it is untenable to argue, as does the majority, that this disparity in burdens of proof is justifiable as a means of deterring frivolous insanity defenses. So long as the burden of proof rests on the Government in Section 301(d) proceedings, I doubt that defense counsel’s criminal trial strategy will be crucially affected by a necessarily speculative evaluation of his post-trial chances of dealing with one or another standard of proof. More important, it seems anomalous, to say the least, that this court, which has given such consistent recognition to the need for a carefully administered insanity defense, see, e. g., United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969 (1972) (en banc), should suddenly embrace such a roughhewn and very possibly useless means of restraining its use.

It is doubtless true, as the majority suggests, that the insanity defense as it has been administered in this case, when coupled with the Bolton decision, might in theory give rise to a “revolving door” phenomenon whereby persons who have committed dangerous acts may be first acquitted by reason of insanity and next totally freed because of the Government’s inability to meet the standards of proof for civil commitment. But this problem of slippage is not eliminated by the disparity in burdens of proof endorsed by the majority. At best it is only reduced, and at the terrible price of incarcerating persons for a mental illness we are not sure they have. Bolton sought to place those acquitted by reason of insanity on the same footing as those haled before the court in ordinary civil commitment proceedings. I would continue to follow its teaching. Indeed, given Baxstrom, in my judgment we have no choice.

I respectfully dissent.

      . Two issues are ordinarily presented: first, whether the subject is mentally ill; second, whether because of that mental illness, he will be likely to injure himself or others. 21 D.C.Code § 541(a). The “likely hazard” issue has been removed from this case by counsel’s stipulation that Mr. Brown is dangerous if the jury shall find that Brown is mentally ill.

      . See Tr. 250-251:
      It is provided by law that if you should find that the Government has established by a preponderance of the evidence the essential element, that the respondent is mentally ill, then in this case the Court may order the respondent’s hospitalization for an indeterminate period of time, or order such other alternative course of treatment as it believes will be in the best interests of the respondent or of the public.
      If, however, you should find that the Government has failed to establish by a preponderance of the evidence that the respondent is mentally ill, the Court may not order the respondent’s hospitalization or treatment, but will order the release of the respondent.

      . Bolton v. Harris, supra, 130 U.S.App.D.C. at 10, 395 F.2d at 652. We have no occasion to consider the changes subsequently wrought in § 301(d) by the D.C. Court Reform and Criminal Procedure Act of 1970, P.L. 91-358.

      . See 397 U.S. at 363-364, 90 S.Ct. at 1072:
      “The requirement of proof beyond a reasonable doubt has [a] vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose hi's liberty upon conviction and because of- the certainty that he would be stigmatized by the conviction. Accordingly, a' society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt.”

      . See 397 U.S. at 370-372, 90 S.Ct. at 1076:
      “ . . . [T]he reason for different standards of proof in civil as opposed to criminal litigation becomes apparent. In a civil suit between two private parties for money damages, for example, we view it as no more serious in general for there to be an erroneous verdict in the defendant’s favor than for there to be an erroneous verdict in the plaintiff’s favor. A preponderance of the evidence standard therefore seems peculiarly appropriate for, as explained most sensibly, it simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’
      “In a criminal case, on the other hand, we do not view the social dis-utility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. As Mr. Justice Brennan wrote for the Court in Speiser v. Randall, 357 U.S. 513, 525-526 [78 S.Ct. 1332, 1341-1342, 2 L.Ed.2d 1460] (1958) :
      ‘There is always in litigation a margin of error, representing error in fact-finding, which both parties must take into account. Where one party has at stake an interest of transcending value— as a criminal defendant his liberty— this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the fact-finder at the conclusion of the trial of his guilt beyond a reasonable doubt.’
      “In this context, . . . the requirement of proof beyond a reasonable doubt in a criminal case [is] bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

      . Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis., 3-judge court, Oct. 18, 1972).

      . Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L. Rev. 1288, 1291 (1966) ; Comment, Due Process for All — Constitutional Standards for Involuntary Civil Commitment and Release, 34 U.Chi.L.Rev. 633, 654-59 (1967).

      . The Court cited as instances cases involving allegations of civil fraud, adultery, illegitimacy of a child born in wedlock, lost wills, oral contracts to make bequests.

      . Lynch v. Overholser, supra, 369 U.S. at 714, 82 S.Ct. 1063; Ragsdale v. Overholser, 108 U.S.App.D.C. 308, 313, 281 F.2d 943, 948 (1960).
      The jury is routinely instructed: “If you find that the Government has failed to prove beyond a reasonable doubt any one or more of the essential elements of the offense, you must find the defendant not guilty, and you should not consider any possible verdict relating to insanity.” United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, June 23, 1972, Appendix B.

      . 130 U.S.App.D.C. at 10, 395 F.2d at 651: “[A] reasonable application permits Subsection (d) to treat persons acquitted by reason of insanity differently from civilly committed persons to the extent that there are relevant differences between these two groups.”

      . In re Franklin, 7 Cal.3d 126, 101 Cal.Rptr. 553, 496 P.2d 465 (Cal.Sup.Ct. en banc, 1972). Tbe court, reviewing the authorities, held that defendants acquitted by reason of insanity represented a special and exceptional class, already involved in a determination that they endangered the public safety as a result of their mental condition, to be distinguished from the class of persons subject to civil commitment because of only potential danger. The court saw no basis for distinguishing between the insanity-acquitted, and those sought to be civilly committed, in terms of right to jury trial, but held that the stringent burden resting on the Government as- a condition of civil commitment did not apply to continuation of commitment of those who had established an insanity defense. We regard that principle as sound, without passing on the question whether we would extend it as far as the California procedure, where the burden of proof is placed on the defendant, to show by a preponderance of evidence that he was insane at the time of the offense (at the criminal trial), and that he recovered his sanity (in the proceeding to determine whether the post-trial commitment, for examination, should be extended into a continuing commitment).

      . Dixon v. Jacobs, 138 U.S.App.D.C. 319, 331-333, 427 F.2d 589, 601-603 (1970) (concurring opinion).

      . 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966).

      . Matthews v. Hardy, 137 U.S.App.D.C. 39, 420 F.2d 607 (1969).

      . See Dixon v. Jacobs, concurring opinion, supra, 138 U.S.App.D.C. at 331-333, 427 F.2d at 602-604.

      . Our judgment is without prejudice to a request for periodic examinations, such as are provided for in Bolton, or to a request, after an appropriate period, for determination, in line with the penultimate paragraph of our opinion, of whether further commitment can be justified under the standards pertinent to civil commitment of those dangerous by virtue of mental illness.

      . In re Winship, 397 U.S. 358, 361-368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (due process requires proof beyond a reasonable doubt in criminal and juvenile cases) ; Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 282-286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (due process requires “clear, unequivocal, and convincing evidence” standard of proof in deportation cases).

      . This standard has been employed in this jurisdiction in civil commitment proceedings under 21 D.C.Code § 545(b) (1967) and 24 D.C.Code § 301(d) (1967). See Bolton v. Harris, 130 U.S.App.D.C. 1, 10 n. 50, 395 F.2d 642, 651 n. 50 (1968) ; In re Alexander, 125 U.S.App.D.C. 352, 354, 372 F.2d 925, 927 (1967). But the standard has been sharply criticized as too weak. See, e. g., Murel v. Baltimore City Criminal Court, 407 U.S. 355, 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972) (Mr. Justice Douglas, dissenting) ; Note, Civil Commitment of the Mentally 111: Theories and Procedures, 79 Harv.L.Rev. 1288, 1291 (1966). And very recently a 3-judge District Court has ruled that a person may be civilly committed only upon proof beyond a reasonable doubt that he is mentally ill and dangerous. Lessard v. Schmidt, E.D.Wis., 349 F.Supp. 1078 (1972).

      . Shortly after Baxstrom, the New York Court of Appeals came to a conclusion similar to this court’s in Bolton. In People v. Dally, 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87 (1966), it held that continuing commitment of persons acquitted by reason of insanity required that the state grant the defendant the benefit of the same procedural' safeguards, jury trial in particular, as were granted all others civilly committed. It said, 19 N.Y.2d at 35, 277 N.Y.S.2d at 660, 224 N.E.2d at 92, that this equivalent procedural protection was required by the “spirit if not the express langu[a]ge of the Baxstrom decision.”

      . Bolton v. Harris, supra note 2, 130 U.S.App.D.C. at 8, 395 F.2d at 649.

      . See In re Winship, supra note 1, 397 U.S. at 371-372, 90 S.Ct. 1068, 25 L.Ed.2d 368 (Mr. Justice Harlan, concurring) ; Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958).

      . The changes made in § 301(d) by the D.O. Court Reform & Criminal Procedure Act of 1970, Pub.L. No. 91-358, 84 Stat. 473-668, while not relevant in this case, seriously alter the procedure for treatment of persons acquitted by reason of insanity. Under the new legislation, those acquitted by reason of insanity shall be committed to a hospital for the mentally ill and provided with a hearing within 50 days to determine whether they shall be released. In that hearing, unlike the hearing utilized in this case, the burden of proof is on the person confined to prove that he has recovered his sanity and will not in the reasonable future be dangerous to himself or others. See 24 D.C. Code § 301(d) (l)-(2) & (e) (Supp. V 1972).

      . Because of the ambiguous nature of the very concept of mental illness, see Washington v. United States, 129 U.S.App.D.C. 29, 31, 390 F.2d 444, 446 (1967), and its potentially “grab bag” quality, see Boutilier v. Immigration & Naturalization Service, 387 U.S. 118, 131, 87 S.Ct. 1563, 18 L.Ed.2d 661 (1967) (Mr. Justice Douglas, dissenting), it has been repeatedly recognized that endorsing a mild standard of proof in commitment cases can result in grave injustice. See Murel v. Baltimore City Criminal Court, supra note 2, 407 U.S. at 359, 92 S.Ct. 2091, 32 L.Ed.2d 791 (Mr. Justice Douglas, dissenting) ; Note, supra note 2, 79 Harv.L.Rev. at 1291; cf. Lessard v. Schmidt, supra note 2.