ell as for the development of the ideological barbarity of Semesenko and for the provocateurs from the Russian Black-Hundred camp, who were pogrommongers by conviction and wished at the same time to discredit the Ukrainian movement by branding it as being guilty of pogroms. All this, of course, is not justification, but only one of many explanations of the origin of pogroms during the period of the Directorate. Quite a different picture is displayed by the comparison of this period of pogroms with the pogroms by Denikin's army. Here is no question of retreat and of chaos that is connected with retreat. On the contrary, the more successful the advance, the more organized and stronger is the propaganda from above and the more according to plan the pogroms are developed. If the beginning of the demoralization of the Ukrainian army was at its tail, by Denikin's army the poison of demoralization came from the head. As we have seen already, the Denikin officers openly declared that they were fighting not against the Bolsheviks, but against the Jews. To be sure, there were also in Denikin's army many persons of a purely rapacious type. But the most horrible thing was the deeply rooted anti-Semitism of the chiefs that surrounded Denikin, and their sadistic hate of Jews. I, personally, am not inclined to assume that Denikin himself wanted pogroms. Even to Denikin, in spite of his anti-Semitism, it was impossible not to see the fatal results of pogroms for his army. But he, too, was powerless on the question of pogroms, nor had he any inclination to come forward in defense of the Jews. The second characteristic feature which distinguishes the very course of the pogroms in one area from the other consists in the fact that in Petlura's army, we surely find cases when some individual persons or groups succeeded in preventing or stopping pogroms. Two such cases are cited by Temkin in his report, the other two cases are given in the report of the Relief Committee for the Victims of Pogroms. Red Army soldiers arranged an anti-Jewish pogrom in the city of Korosten in March 13, 1919. When the soldiers of Petlura's army which was at that time advancing, reached the city, they stopped the pogroms. In Bila Tserkva the Ukrainian army - having expelled in August the Denikin troops of Gen. Shkuro and then the Red troops, who one after another plundered and massacred the population - behaved in full dignity until in turn they were substituted by Zeleny's bands that immediately arranged a pogrom. Later the unfortunate town was attacked by Sokolov's bands, after which the Ukrainian troops again succeeded in restoring order for a short time. Lubny escaped a pogrom thanks to the fact that a hundred men were found in the Ukrainian ranks, who with their arms stood in the way of the pogrommakers. Fourteen of the defenders fell in the fight but the town was saved. While reading the story about Lubny in this part of the report, I recalled the year 1905 when a City Committee of Defense was organized in Lubny, which also saved the city from a pogrom. Such facts were unknown in Denikin's army. Here the "guilty" of such patronage and defense of Jews were punished with dismissal from their posts. The third feature, a very disadvantageous one for Denikin's army and government, appears as a result of the comparison of the declarations by the Ukrainian government on the Jewish question, of laws concerning personal-national autonomy and Jewish Communities on the one hand, - with the clauses restricting the number of Jews in educational institutions as well as in civil and military services in Denikin's empire - on the other hand. Here, on the part of the Ukrainian government, an effort to draw on representatives of Jews in all levels of government posts, and over there - in Denikin's camp - removal of Jewish officers from the army, and of Jewish officials from district and city offices. And this - in spite of the fact that so many Jews joined voluntarily at the very beginning Koltchak's and Denikin's armies. And how many Jews having been brought up with a Russian culture died for Russia that had been always a stepmother to them? On the other hand, how small a group of us, Jews, joined the Ukrainian movement at the beginning of the second revolution! Of course, there was nothing strange in it. Wilson's points had been declared but recently, and the realization of the right of self-determination by the Ukrainian people wa such a new and fresh event that not only the average Jewish citizen, but also the intellectuals, with few exceptions, did not digest or understand all that had happened. But the fact remains, Jews were represented by a very considerable number in the ranks both of the Bolsheviks and, at the beginning, of Denikin's army. The Ukrainian movement was joined only by a few Jews. The representatives of Russian and Jewish capital and heavy industry were marching hand-in-hand with the Volunteer Armies of Denikin, Yudenitch, and Koltchak. And even after all those pogroms committed by Denikin's army, the Jewish capitalists and industrialists followed the call of his successor Wrangel, and joined him Finally, one more feature out of many others that distinguish the Ukrainian Movement from that of Denikin: An anti-Jewish pogrom was openly carried on in Kiev in the presence of Denikin's generals, Drahomirov and Bredov. Never did happen anything like that, wherever the Directorate set up headquarters, neither in Kiev, nor in Vynnytsia, nor in Kamanets-Pololsk. The Kiev population knows from bitter experience the difference between those two regimes. Nevertheless, in spite of all these quite essential differences, here abroad the pogroms of the followers of Petlura are much more known than those perpetrated by Denikin's army, although the latter numerically and qualitatively surpassed considerably the former. This is to be explained not only by the propaganda of the Russian groups which have old connections and larger means in Europe and America, but also by the incontestable fact that the first series of pogroms attracted the greatest attention and brought forth the strongest expression of dissatisfaction on the part of the public. (In F. Pigido (ed.), Material Concerning Ukrainian-Jewish Relations during the Years of the Revolution (1917-1921): Collection of Documents and Testimonies by Prominent Jewish Political Workers, The Ukrainian Information Bureau, Munich, 1956, pp. 48-51) HOME DISINFORMATION 60 MINUTES 989 hits since 12Aug98 Ginsburg U.S. Court of Appeals 11Aug98 Serafyn vs. Federal Communications Commission Serafyn also submitted evidence that "60 Minutes" had no policy against news distortion and indeed that management considered some distortion acceptable. For example, according to the Washington Post, Mike Wallace, a longtime reporter for "60 Minutes," told an interviewer: "You don't like to baldly lie, but I have." An introduction to the United States Court of Appeals decision below can be found in an Associated Press article by Jeannine Aversa which is on the Ukrainian Archive. The original of the Court of Appeals decision below can be found on the United States Court of Appeals web site whose home page is at www.cadc.uscourts.gov and where the decision can either be accessed by following links from the Court of Appeals home page, or else accessed directly at www.cadc.uscourts.gov/common/opinions/199808/95-1385a.txt. As page numbering was not indicated in the Court of Appeals web site version, it could not be inserted below, although page boundaries could be inferred and are indicated below by means of horizontal lines. The version below inserts clickable yellow CONTENTS boxes to remedy the general problem of a reader's losing track of where he is within a large document when reading it on screen, and to facilitate moving effortlessly from one part of the document to another. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 23, 1998 Decided August 11, 1998 No. 95-1385 Alexander J. Serafyn, et al., Appellants v. Federal Communications Commission, Appellee CBS Inc., et al., Intervenors Consolidated with Nos. 95-1440, 95-1608 Appeal of Orders of the Federal Communications Commission Arthur V. Belendiuk argued the cause and filed the briefs for appellants. Shaun A. Maher and Donna T. Pochoday entered appearances. C. Grey Pash, Jr., Counsel, Federal Communications Com- mission, argued the cause for appellee, with whom Christo- pher J. Wright, General Counsel, and Daniel M. Armstrong, Associate General Counsel, were on the brief. Richard E. Wiley, Lawrence W. Secrest, III, James R. Bayes, and Daniel E. Troy were on the brief for intervenors CBS Inc. and Westinghouse Electric Corporation. John Lane Jr., Ramsey L. Woodworth, and Robert M. Gurss entered appearances. Before: Ginsburg, Henderson, and Randolph, Circuit Judges. Opinion for the court filed by Circuit Judge Ginsburg. Ginsburg, Circuit Judge: Alexander Serafyn petitioned the Federal Communications Commission to deny or to set for hearing the application of CBS for a new station license. Serafyn objected that CBS was not fit to receive a license because it had aired a news program in which it intentionally distorted the situation in Ukraine by claiming that most Ukrainians are anti-Semitic. The Commission summarily denied the petition, holding that Serafyn had not submitted enough evidence to warrant a hearing. Because the Commis- sion neither applied the correct standard nor provided a reasoned explanation in its decision, we vacate its order and remand the matter to the agency for further proceedings. Serafyn also petitioned to revoke CBS's existing licenses on the ground that CBS made a material misrepresentation to the Commission when it gave an affiliated station false infor- mation regarding its handling of viewer letters complaining about the same program. The Commission denied that peti- tion on the ground that Serafyn had not alleged that CBS intentionally misrepresented the matter to the Commission. We uphold the Commission's decision in this matter as rea- sonable. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion I. Background Section 309(a) of the Communications Act provides that the Federal Communications Commission may grant a broadcast license only when it determines that doing so would serve the "public interest, convenience, and necessity." 47 U.S.C. s 309(a). Under s 309(d) of the Act any interested person may petition the FCC to deny or to set for hearing any application for a broadcast license or to revoke an existing broadcaster's license. The petition must contain specific allegations of fact sufficient to show that ... a grant of the application would be prima facie inconsistent with [the public interest, convenience, and necessity]. Such allegations of fact shall ... be supported by affida- vit of a person ... with personal knowledge thereof. Id. The FCC must hold a hearing if it finds that the application presents a "substantial and material question of fact" or if it is otherwise unable to conclude that granting the application would serve the public interest. See s 309(e). As the Commission interprets it, s 309 erects a two-step barrier to a hearing: (1) a petition must contain specific allegations of fact that, taken as true, make out a prima facie case that grant of the application would not serve the public interest; and (2) the allegations, taken together with any opposing evidence before the Commission, must still raise a substantial and material question of fact as to whether grant of the application would serve the public interest. See Astro- line Communications Co. v. FCC, 857 F.2d 1556, 1561 (D.C. Cir. 1988) (describing two-step test). At the first step, "[t]he Commission's inquiry ... is much like that performed by a trial judge considering a motion for a directed verdict: if all the supporting facts alleged in the affidavits were true, could a reasonable factfinder conclude that the ultimate fact in dispute had been established." Gencom, Inc. v. FCC, 832 F.2d 171, 181 (D.C. Cir. 1987). At the second step, a substan- tial and material question is raised when "the totality of the evidence arouses a sufficient doubt on the [question whether grant of the application would serve the public interest] that further inquiry is called for." Citizens for Jazz on WRVR, Inc. v. FCC, 775 F.2d 392, 395 (D.C. Cir. 1985). In determining whether an allegation of news distortion raises a question about the licensee's ability to serve the public interest, the Commission analyzes both the substantial- ity and the materiality of the allegation. The Commission regards an allegation as material only if the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion. The Commission stated its policy about 30 years ago as follows: [W]e do not intend to defer action on license renewals because of the pendency of complaints of [news distor- tion]--unless the extrinsic evidence of possible deliberate distortion or staging of the news which is brought to our attention, involves the licensee, including its principals, top management, or news management.... [I]f the allegations of staging ... simply involve news employees of the station, we will, in appropriate cases ... inquire into the matter, but unless our investigation reveals involvement of the licensee or its management there will be no hazard to the station's licensed status.... .... Rather, the matter should be referred to the licensee for its own investigation and appropriate han- dling. .... Rigging or slanting the news is a most heinous act against the public interest .... [b]ut in this democra- cy, no Government agency can authenticate the news, or should try to do so. Hunger in America, 20 FCC 2d 143, 150, 151 (1969). In a footnote the Commission added: [W]e stress that the licensee must have a policy of requiring honesty of its news staff and must take reason- able precautions to see that news is fairly handled. An allegation of distortion is "substantial" when it meets two conditions, as we summarized in an earlier case. [F]irst, ... the distortion ... [must] be deliberately intended to slant or mislead. It is not enough to dispute the accuracy of a news report ... or to question the legitimate editorial decisions of the broadcaster.... The allegation of deliberate distortion must be supported by "extrinsic evidence," that is, evidence other than the broadcast itself, such as written or oral instructions from station management, outtakes, or evidence of bribery. Second, the distortion must involve a significant event and not merely a minor or incidental aspect of the news report.... [T]he Commission tolerates ... practices [such as staging and distortion] unless they "affect[ ] the basic accuracy of the events reported." Galloway v. FCC, 778 F.2d 16, 20 (D.C. Cir. 1985) (affirming Commission's holding that CBS's "60 Minutes" had not dis- torted news by staging insurance investigator's interrogation of fraudulent claimant; because she "actually did participate in the fraud and did confess, even if not in precisely the manner portrayed, the 'basic accuracy of the events reported' ... has not been distorted"). As we noted in Galloway, the Commission's policy makes its investigation of an allegation of news distortion "extremely limited [in] scope. But within the constraints of the Constitu- tion, Congress and the Commission may set the scope of broadcast regulation; it is not the role of this court to question the wisdom of their policy choices." Id. at 21. In 1994 CBS produced and broadcast a controversial seg- ment of "60 Minutes" entitled "The Ugly Face of Freedom," about modern Ukraine. The broadcast angered some viewers who believed that many elements of the program had been designed to give the impression that all Ukrainians harbor a strongly negative attitude toward Jews. For example, inter- viewer Morley Safer suggested that Ukrainians were "genet- ically anti-Semitic" and "uneducated peasants, deeply super- stitious." Also, soundbites from an interview with the Chief Rabbi of Lviv, Yaakov Bleich, gave viewers the impression that he believes all Ukrainians are anti-Semites who want all Jews to leave Ukraine. In addition, CBS overlaid the sound of marching boots on a film clip of Ukrainian Boy Scouts walking to church and introduced it in such a way as to give viewers the impression that they were seeing "a neo-Nazi, Hitler Youth-like movement." The narrator also stated that the Ukrainian Galicia Division had helped in the roundup and execution of Jews from Lviv in 1941, though this Division was not in fact even formed until 1943 and therefore could not possibly have participated in the deed. Perhaps most egre- giously, when Ukrainian speakers used the term "zhyd," which means simply "Jew," they were translated as having said "kike," which is a derogatory term. After the broadcast interviewees and members of the Ukrainian-American community deluged CBS with letters. In his letter Rabbi Bleich stated "unequivocally" that his "words were quoted out of the context that they were said" and that "the CBS broadcast was unbalanced" and "did not convey the true state of affairs in Ukraine." Cardinal Luba- chivsky, the head of the Ukrainian Greek Catholic Church, who had also been interviewed, both sent a letter to CBS and released a statement to the press. In the latter he stated, "[M]y office was misled as to the actual thrust of the report. Mr. Fager [the producer] presented the piece as one about 'post-communist Ukraine.' ... I can only deduce that the goal of the report was to present all Western Ukrainians as rabid anti-semites." Many other viewers pointed out histori- cal inaccuracies and offensive statements or characterizations in the show. Notwithstanding the requirement in 47 C.F.R. s 73.1202 that a licensee keep and make available all letters received from viewers, WUSA-TV in Washington, D.C., forwarded the letters it received to CBS's main office in New York. When a representative of the Ukrainian-American Community Net- work asked to see the letters, WUSA contacted CBS in New York and was told by Raymond Faiola that the letters were in storage and that a response had been sent to each viewer who wrote in; Faiola attached what he said was a copy of that response. After failing to locate any viewer who had received such a reply, the UACN representative questioned this story. A CBS attorney in turn questioned Faiola, who then ex- plained that the response letter had been sent to only about a quarter of the viewers who had written in about the program. When an intensive advertising campaign, however, failed to turn up even one person in the Ukrainian-American commu- nity who had received a response, the UACN representative complained to the Commission and sent a copy of the com- plaint to counsel for CBS. When CBS's counsel asked Faiola for an affidavit confirming his story, Faiola admitted that the letter he had sent WUSA had been merely a draft and that he had forgotten to have any actual response letters sent out. Nos. 95-1385, 1440. Alexander Serafyn, an American of Ukrainian ancestry, petitioned the Commission to deny or to set for hearing the application of CBS to be assigned the licenses of two stations, arguing that the "60 Minutes" broad- cast showed that CBS had distorted the news and therefore failed to serve the public interest. In support of his petition, Serafyn submitted the broadcast itself, outtakes of interviews with Rabbi Bleich, viewer letters, a dictionary supporting his claim about the mistranslation of "zhyd," historical informa- tion about the Galicia Division, information showing that CBS had rebuffed the offer of a professor of Ukrainian history to help CBS understand the subject, and seven other items of evidence. Serafyn also submitted evidence that "60 Minutes" had no policy against news distortion and indeed that management considered some distortion acceptable. For example, accord- ing to the Washington Post, Mike Wallace, a longtime report- er for "60 Minutes," told an interviewer: "You don't like to baldly lie, but I have." Colman McCarthy, The TV Whisper, Wash. Post, Jan. 7, 1995, at A21. Don Hewitt, the executive producer of "60 Minutes," is quoted in the same article as saying that some deception is permissible because "[i]t's the small crime vs. the greater good," and elsewhere as saying that "I wouldn't make Hitler look bad on the air if I could get a good story." Richard Jerome, Don Hewitt, People, Apr. 24, 1995, at 85, 90. CBS, taking the position that any official investigation into its news broadcasting "offends the protections of a free press," did not submit any evidence. Nonetheless, the Com- mission denied the petition without a hearing. See WGPR, Inc., 10 FCC Rcd 8140, 8146-48 (1995). Explaining that it would not investigate an allegation of news distortion without "substantial extrinsic evidence" thereof, the Commission de- termined that only three of Serafyn's items of evidence were extrinsic to the broadcast itself: the viewer letters, the outtakes of interviews with Rabbi Bleich, and CBS's refusal to use the services of the history professor. All the other evidence, according to the Commission, either concerned "dis- putes as to the truth of the event ... or embellishments concerning peripheral aspects of news reports or attempts at window dressing which concerned the manner of presenting the news." Id. at 8147 (emphasis in original, citations omit- ted). The Commission then held that the three items it regarded as extrinsic evidence "in total ... do[ ] not satisfy the standard for demonstrating intent to distort." Id. at 8148. Serafyn had therefore failed to show that CBS had not met its public interest obligations and had "failed to present a substantial and material issue of fact that the grant of the application ... would be inconsistent with the public inter- est." Id. at 8149. Serafyn and Oleg Nikolyszyn, another viewer who com- plained to the Commission and whose appeal we consolidated with Serafyn's, argue that the Commission violated its own standard in concluding that no hearing was necessary. Serafyn implicitly objects also to the standard itself insofar as he argues that it "imposed an impossible burden" upon him by requiring that he present extrinsic evidence sufficient to prove his claim without the benefit of discovery, and that the "objective" evidence he offered should be deemed adequate to warrant a hearing upon the public interest question. No. 95-1608. Serafyn and the Ukrainian Congress Com- mittee of America also petitioned the Commission to revoke or set for a revocation hearing all of the broadcast licenses owned by CBS, arguing that CBS had made misrepresenta- tions to the Commission regarding its treatment of the viewer letters. The Commission denied the petition on the grounds that Serafyn had neither alleged that CBS made a false statement to the Commission (as opposed to WUSA) nor proved that CBS intended to make a false statement. With respect to the latter point the Commission relied solely upon Fiola's affidavit; it did not consider Serafyn's allegations that CBS intentionally misrepresented the facts because they were "not supported by an affidavit from a person with personal knowledge thereof" and therefore did not meet the threshold requirement of s 309(d). See Stockholders of CBS Inc., 11 FCC Rcd 3733 (1995). CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion II. News Distortion With regard to the Commission's requirement that he prove by extrinsic evidence that CBS intended to distort the news, Serafyn argues that the Commission "has never articu- lated a precise definition of 'extrinsic evidence' " and that its prior decisions suggest it is merely seeking "objective evi- dence from outside the broadcast which demonstrates, with- out any need for the Commission to second-guess a licensee's journalistic judgment or for the Commission to make credibil- ity findings, that the licensee has distorted a news program." He then argues that the Commission misapplied the extrinsic evidence standard by mischaracterizing some evidence as non-extrinsic, failing to discuss other evidence he presented, analyzing each piece of extrinsic evidence separately rather than cumulatively, and requiring him to prove his case rather than simply to raise a material question. The Commission stands by its characterization of the evi- dence based upon its definition of extrinsic evidence, which it says " 'is evidence outside the broadcast itself,' such as evi- dence of written or oral instructions from station manage- ment, outtakes, or evidence of bribery." Further, the Com- mission explains that its investigation properly "focuse[d] on evidence of intent of the licensee to distort [deliberately], not on the petitioner's claim that the true facts of the incident are different from those presented," because "[e]xtrinsic evidence [must] demonstrate[ ] that a broadcaster knew elements of a news story were false or distorted, but nevertheless, proceed- ed to air such programming." We review the Commission's decision under the arbitrary and capricious standard. See Astroline, 857 F.2d at 1562. We will uphold the decision if it is "reasonable and supported by the evidence before it," but "will not 'hesitate to intervene where the agency decision appears unreasonable or bears inadequate relation to the facts on which it is purportedly based.' " Beaumont Branch of the NAACP v. FCC, 854 F.2d 501, 507 (D.C. Cir. 1988) (quoting California Public Broad- casting Forum v. FCC, 752 F.2d 670, 675 (D.C. Cir. 1985)). Analyzing the Commission's decision under this standard, we conclude that the agency has failed adequately to explain its decision not to set the application of CBS for a hearing. We therefore vacate the decision of the Commission and remand the matter for further administrative proceedings. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion A. Evidentiary standard At the outset, we note that the Commission never explained under which step of the inquiry it resolved this case. It began by stating that Serafyn "must satisfy the threshold extrinsic evidence standard in order to elevate [his] allega- tions to the level of 'substantial and material' "; but then said that Serafyn had not "demonstrate[d]" that CBS intended to distort the news; and finally concluded that because his allegations concerned only one show "such an isolated in- stance ... cannot[ ] rise to the level of a 'pattern of preju- dice,' the burden required of a petitioner who seeks to make a prima facie case." WGPR, 10 FCC Rcd at 8148. The Commission's muddled discussion suggests that it not only conflated the first and second steps but also applied the wrong standard in judging the sufficiency of the evidence. As we have explained, the appropriate questions for the Commission to ask at the threshold stage are first, whether the petitioner's allegations make out a prima facie case, and second, whether they raise a substantial and material ques- tion of fact regarding the licensee's ability to serve the public interest. Instead, the Commission apparently asked whether Serafyn's evidence proved CBS's intent to distort the news, for it concluded by saying: [W]e find, in sum, that the outtakes of the rabbi's inter- view fail to demonstrate CBS's intent to distort.... The two remaining pieces of evidence ... fall[ ] far short of demonstrating intent to distort.... Serafyn's extrinsic evidence in total, therefore, does not satisfy the standard for demonstrating intent to distort. Id. at 8147, 8148. In requiring Serafyn to "demonstrate" that CBS intended to distort the news rather than merely to "raise a substantial and material question of fact" about the licensee's intent, the Commission has misapplied its standard in a way reminiscent of the problem in Citizens for Jazz: "The statute in effect says that the Commission must look into the possible existence of a fire only when it is shown a good deal of smoke; the Commission has said that it will look into the possible existence of a fire only when it is shown the existence of a fire." 775 F.2d at 397. For this reason alone we must remand the case to the agency. Although we do not propose to determine just how much evidence the Commis- sion may require or whether Serafyn has produced it, which are matters for the Commission itself to determine in the first instance, we can safely say that the quantum of evidence needed to raise a substantial question is less than that required to prove a case. See id. (" '[P]rima facie sufficiency' means the degree of evidence necessary to make, not a fully persuasive case, but rather what a reasonable factfinder might view as a persuasive case--the quantum, in other words, that would induce a trial judge to let a case go to the jury even though he himself would (if nothing more were known) find against the plaintiff"). We are also concerned about the Commission's method of analyzing the various pieces of evidence that Serafyn present- ed. In making its decision the Commission must consider together all the evidence it has. See Gencom, 832 F.2d at 181; Citizens for Jazz, 775 F.2d at 395. The decision under review, however, suggests (though not conclusively) that the Commission analyzed each piece of evidence in isolation only to determine, not surprisingly, that no item by itself crossed the threshold. See WGPR, 10 FCC Rcd at 8147-48. Be- cause we must remand this matter in any case, we need not determine whether the Commission in fact erred in this regard. We simply note that upon remand the Commission must consider all the evidence together before deciding whether it is sufficient to make a prima facie case or to raise a substantial and material question of fact. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion B. Licensee's policy on distortion In addition to holding that Serafyn presented insufficient evidence to "demonstrate" that CBS had intentionally distort- ed the "60 Minutes" episode about Ukraine, the Commission's denial of Serafyn's petition also rested upon the alternative ground that he had not alleged a general pattern of distortion extending beyond that one episode. Upon appeal Serafyn argues--and the Commission does not dispute--that he did present evidence regarding CBS's general policy about distor- tion, namely the comments of Wallace and Hewitt quoted above, and that the Commission failed to discuss or even to mention this evidence. Both Wallace's comment ("you don't like to baldly lie, but I have") and Hewitt's ("it's the small crime vs. the greater good") are, to say the least, suggestive. Furthermore, both Wallace (as the most senior reporter and commentator for "60 Minutes") and Hewitt (as the producer of the series) are likely members of the "news management" whose decisions can fairly be attributed to the licensee. Hunger in America, 20 FCC 2d at 150. The Commission's failure to discuss Serafyn's allegation relating to CBS's policy on veracity is therefore troubling. Indeed, because of the importance the Commission placed upon the supposed lack of such evidence, its presence in the record casts the Commis- simon alternative ground into doubt. The Commission must consider these allegations upon remand. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion C. Nature of particular evidence The Commission gave illogical or incomplete reasons for finding non-probative two of the three pieces of evidence it determined were "extrinsic." It also failed to discuss individ- ually certain alleged factual inaccuracies that Serafyn brought to its attention. Before discussing the Commission's opinion in detail, however, we set out a brief excerpt from the transcript of the broadcast. MORLEY SAFER, co-host: ... [T]he west [of Ukraine], where we go tonight, is on a binge of ethnic national- ism. "Ukraine for the Ukrainians" can have a fright- ening ring to those not ethnically correct, especially in a nation that barely acknowledges its part in Hitler's final solution. ... [J]ust about every day of the week, the sounds of freedom can be heard, men and women giving voice to their particular view of how the new independent Ukraine should be governed. They disagree about plenty, but do have two things in common: their old enemy, Russian communism, and their old, old enemy, the Jews. Unidentified Man # 1: (Through Translator) We Ukrain- ians not have to rely on American [sic] and kikes. SAFER: Yacoov [sic] Bleich left the United States five years ago to take over as the chief rabbi for the Ukraine. Rabbi YACOOV [sic] BLEICH: There is, obviously, a lot of hatred in these people that are--that are expound- ing these things and saying, you know--obviously if someone, you know, screams, "Let's drown the Rus- sians in Jewish blood," there isn't much love lost there. ... SAFER: ... In western Ukraine at least, Hitler's dream had been realized. It was juden-frei, free of Jews. In the 50 years since, Jews have drifted in from other parts of the old Soviet Union, about 7,000 now in [Lviv]. For some Ukrainians, that's 7,000 too many. Rabbi BLEICH: Yeah. Well, that's not a secret. They're saying that they want the Jews out. ... SAFER: The western Ukraine is fertile ground for hatred. Independence only underlined its backward- ness: uneducated peasants, deeply superstitious, in possession of this bizarre anomaly: nuclear weap- ons.... Western Ukraine also has a long, dark history of blaming its poverty, its troubles, on others. [Unidentified] Man # 2: (Through Translator) Kikes have better chances here than even the original popu- lation. SAFER: Than the Ukrainians. Man # 2: (Through Translator) Yes. ... SAFER: The church and government of Ukraine have tried to ease people's fears, suggesting that things are not as serious as they might appear; that Ukrainians, despite the allegations, are not genetically anti-Semitic. But to a Jew living here ... such statements are little comfort.... Transcript, Joint Appendix at 92-96. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion 1. Extrinsic evidence We discuss first the Commission's analysis of the three pieces of evidence it found were "extrinsic." The Commission has the responsibility to determine the weight of such evi- dence. The reasons it gives for doing so, however, must be reasonable and not unfounded. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion (a) Outtakes of the interview with Rabbi Bleich The outtakes show that all of Rabbi Bleich's quoted com- ments were made in response to questions about radical nationalists. Serafyn argued to the Commission that CBS had misrepresented Bleich's views when it broadcast his statements without making clear the context in which they were spoken and without including the qualifications and positive statements that accompanied them. The Commission found that the outtakes could indeed "properly serve as circumstantial evidence of intent," but went on to find that they did not demonstrate an intent to distort the news because: Rabbi Bleich's latter, allegedly misleading comments im- mediately followed ... Safer's statement ... that only "some Ukrainians" are anti-Semitic.... Indeed, that the focus of the "60 Minutes" program was upon only a certain sector of the Ukrainian population is evident from at least three other express references by Safer to "Ukrainian ultranationalist parties," "the Social National- ists," and other apparently isolated groups of Ukrainians. Thus, rather than constitute a distortion, Rabbi Bleich's negative comments about Ukrainians as utilized can rightly be viewed as limited to only a segment of the Ukrainian population.... Nor do we find intent to distort because CBS did not include in its episode posi- tive statements about Ukraine made by Rabbi Bleich.... [T]he determination of what to include and exclude from a given interview constitutes the legitimate "journalistic judgment" of a broadcaster, a matter beyond the Com- mission's "proper area of concern." WGPR, 10 FCC Rcd at 8147. Serafyn argues upon appeal that the Commission erred in failing to find the outtakes persuasive evidence of CBS's intent to distort. The Commission was not unreasonable, however, in finding that Safer's phrase "some Ukrainians" and his other references to extremist groups effectively limit- ed the scope of Bleich's comments to "a segment of the Ukrainian population." Id. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion (b) The viewer letters The Commission held that the letters CBS received from viewers were extrinsic evidence because they were "external to the program." Id. at 8148. In the Commission's view, however, the letters were not probative because the letter writers were not "insiders," that is, employees or members of manage- ment of CBS. Nor are they persons with direct personal knowledge of intent to falsify.... And letters sent by viewers subsequent to the broadcast [are] evidence clear- ly incapable of going to intent, because intent is a state of mind accompanying an act, not following it. Id. The Commission's reasoning here is flawed in two respects. First, a person need not have "direct" personal knowledge of intent in order to have relevant information that constitutes circumstantial evidence about such intent. See Crawford-El v. Britton, 93 F.3d 813, 818 (1996) ("[T]he distinction between direct and circumstantial evidence has no direct correlation with the strength of the plaintiff's case"); CPBF v. FCC, 752 F.2d at 679 ("Intent [may] be inferred from the subsidiary fact of [a broadcaster's] statements to third parties"). Sec- ond, evidence that sheds light upon one's intent is relevant whether it was prepared before or after the incident under investigation; consider, for example, a letter written after but recounting words or actions before an event. Upon remand, therefore, the Commission may wish to consider separately two types of letters. First, there may be letters that convey direct information about the producers' state of mind while the show was in production. For exam- ple, Cardinal Lubachivsky charged that the producers misled him as to the nature of the show. Second, there are letters that point out factual inaccuracies in the show. For example, Rabbi Lincoln, a viewer, wrote in about the mistranslation of "zhyd." Although letters of this type may not have indepen- dent significance, they may yet be probative in determining whether an error was obvious or egregious, and if so whether it bespeaks an intent to distort the facts. See Part II.C.2 below. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion (c) The refusal to consult Professor Luciuk Serafyn asserted that CBS's refusal to consult Professor Luciuk demonstrated its intent to distort the news because only someone with no intention to broadcast the truth would refuse to use the services of an expert. The Commission found that evidence of the broadcaster's decision was extrin- sic to the program but that it "falls far short of demonstrating intent to distort the ... program" because the "[d]etermina- tion[ ] as to which experts to utilize is a decision solely within the province of the broadcaster." WGPR, 10 FCC Rcd at 8148. Once again, the agency's reasoning is too loose. Serafyn raises no question about the broadcaster's discretion to decide whom, if anyone, to employ; it is only because the broadcaster has such discretion that its ultimate decision may be probative on the issue of intent. Before the Commission may reject this evidence, therefore, it must explain why CBS's decision to employ one expert over another--or not to employ one at all--is not probative on the issue of its intent to distort. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion 2. Evidence of factual inaccuracies In describing what evidence it would accept to substantiate Serafyn's claim of news distortion, the Commission stated that it has "long ruled that it will not attempt to judge the accuracy of broadcast news reports or to determine whether a reporter should have included additional facts." WGPR, 10 FCC Rcd at 8147. In "balancing First Amendment and public interest concerns," it explained, the Commission will not attempt to draw inferences of distortion from the content of a broadcast, but it will investigate where allegations of news distortion are supported by "substan- tial extrinsic evidence" that the licensee has deliberately distorted its news report. Mrs. J.R. Paul, 26 FCC 2d at 592. "Extrinsic evidence," that is, evidence outside the broadcast itself, includes written or oral instructions from station management, outtakes, or evidence of brib- ery. Hunger in America, 20 FCC 2d at 151. Our assessment of allegations of news distortion, in sum, focuses on evidence of intent of the licensee to distort, not on the petitioner's clam that the true facts of the incident are different from those presented. WGPR, 10 FCC Rcd at 8147. Serafyn argues that the definition quoted above does not purport to be all-inclusive, and that the Commission acted unreasonably in holding that the evidence he submitted is not also extrinsic. In his view the agency should inquire "wheth- er the licensee has distorted a news program" and the Commission can make this inquiry--without becoming a na- tional arbiter of truth--by relying upon "objective" evidence to disprove assertions made in a news show. Intervenor CBS argues that the "objective" nature of evidence has never been considered in determining whether it is extrinsic. The Com- mission responds that however one defines "extrinsic evi- dence," it does not include that which goes only to the truth of a matter stated in the broadcast. The Commission has not so much defined extrinsic evidence as provided examples of the genre and what lies outside it. While the Commission certainly may focus upon evidence relevant to intent and exclude all else, the problem is--as the Commission's past decisions show--that the inaccuracy of a broadcast can sometimes be indicative of the broadcaster's intent. See Application of WMJX, 85 FCC 2d 251 (1981) (station denied intent to mislead public but admitted it knew news broadcast was false; Commission implicitly concluded from broadcaster's knowledge of falsity that it had intended to mislead public); see also Hunger in America, 20 FCC 2d at 147 (Commission may intervene "in the unusual case where the [truth of the] matter can be readily and definitely re- solved"). Here, Serafyn argues that CBS got its facts so wrong that its decision to broadcast them gives rise to the inference that CBS intentionally distorted the news. Without deciding whether Serafyn's arguments about individual facts are cor- rect, or even specifying what standard the Commission should use when analyzing claims of factual inaccuracy, we must point out that an egregious or obvious error may indeed suggest that the station intended to mislead. This is not to say that the Commission must investigate every allegation of factual inaccuracy; if the broadcaster had to do historical research or to weigh the credibility of interviewees, for example, then any alleged inaccuracy is almost certainly neither egregious nor obvious. Our point is only that as an analytical matter a factual inaccuracy can, in some circum- stances, raise an inference of such intent. The Commission therefore erred insofar as it categorically eliminated factual inaccuracies from consideration as part of its determination of intent.* The chief example we have in mind is the apparent mis- translation of "zhyd" as "kike." Such a highly-charged word is surely not used lightly. Of course, translation is a tricky business, and it is axiomatic that one can never translate perfectly. Nonetheless, a mistranslation that "affect[s] the basic accuracy" of the speaker is problematic under the Commission's standard. Galloway, 778 F.2d at 20. Translating can be compared to editing a long interview down to a few questions and answers. In The Selling of the Pentagon, the Commission addressed an interviewee's allega- tion that CBS's "60 Minutes" had "so edited and rearranged [his answers to questions posed] as to misrepresent their content." 30 FCC 2d 150, 150 (1971). Although it decided in that case that the interviewee had not been so badly misrep- resented as to require action by the Commission, the agency allowed that it "can conceive of situations where the documen- tary evidence of deliberate distortion would be sufficiently strong to require an inquiry--e.g., where a 'yes' answer to one question was used to replace a 'no' answer to an entirely different question." Id. Changing "Jew" to "kike" may be as blatant a distortion as changing a "no" answer to a "yes," so greatly does it alter the sense of the speaker's statement; if so, then the basic accuracy of the report is affected. Further, when the word chosen by the translator is an inflammatory term such as "kike," the licensee could be expected to assure itself of the accuracy of the translation; if it does not do so, the Commission may appropriately consider that fact in reaching a conclusion about the broadcaster's _______________________________ * Counsel for the Commission was unable to say at oral argu- ment whether the agency simply did not believe that such evidence could ever be probative--which would be a mistake--or understood the point we are making but chose to exclude such evidence for prudential reasons--which would be an exercise of judgment within its discretion if not unreasonable. intent to distort the news. The Commission was therefore unreasonable in dismissing this charge without an explana- tion. We need not discuss here each of the other factual inaccu- racies raised by Serafyn. On remand the Commission should consider whether any other error was sufficiently obvious and egregious to contribute to an inference about CBS's intent, and therefore to qualify as "extrinsic evidence." CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion D. Misrepresentation In Stockholders of CBS, Inc. Serafyn argued that CBS made a misrepresentation to the Commission by misleading WUSA about its treatment of the viewer letters and thereby causing the affiliate to transmit that erroneous information to the Commission. The Commission responded that "[m]isrep- resentation is composed of two elements: a material false statement made to the Commission and an intent to make such a statement." 11 FCC Rcd at 3753. The Commission then held Serafyn had neither alleged that CBS had made its representation directly to the Commission nor "provided [any] evidence that CBS [had] intended to convey false infor- mation to the Commission through its affiliate." Id. In reviewing the Commission's conclusion that CBS did not make a misrepresentation we ask only whether the Commis- sion was "cognizant of the issue raised and, upon the record, reasonably resolve[d] that issue." WEBR, Inc. v. FCC, 420 F.2d 158, 164 (D.C. Cir. 1969). In this case the answer to both questions is yes. There is no dispute that CBS did not make its false statement directly to the Commission. Serafyn argues, how- ever, that directness has never been required, that "CBS was aware of Appellants' complaint against WUSA-TV," and that CBS's misrepresentations to WUSA therefore should "be taken as seriously as if made directly to the Commission." The Commission responds first that there is no evidence that CBS intended to make any misrepresentation--"the most that was shown in the record below was that one official of CBS was careless or negligent in providing information to [WUSA]"--and second that it will sanction only a misrepre- sentation made directly to the Commission or intended to be passed on to the Commission. The Commission reasonably found Serafyn had not alleged that CBS intended to make any representation either directly or indirectly "to the Commission." Assuming for the sake of the argument that CBS could be sanctioned for making a misrepresentation through WUSA, we agree with the Com- mission that Serafyn did not substantiate his claim that CBS knew about the complaint pending before the agency when it made the two misrepresentations to WUSA. Serafyn's only evidence is that the UACN had sent CBS's counsel a copy of the complaint, but that was after WUSA had received the misinformation and relayed it to the Commission. Absent any allegation that CBS knew that the first two versions of the incident it provided to WUSA would make their way to the Commission, the agency reasonably decided not to sanc- tion CBS for misrepresentation. CONTENTS: Title Page I. Background II. News Distortion A. Evidentiary standard B. Licensee's policy on distortion C. Nature of particular evidence 1. Extrinsic evidence (a) Outtakes of the interview with Rabbi Bleich (b) The viewer letters (c) The refusal to consult Professor Luciuk 2. Evidence of factual inaccuracies D. Misrepresentation III. Conclusion III. Conclusion The Commission acted arbitrarily and capriciously in deny- ing Serafyn's petition without analyzing more precisely the evidence he presented. On the other hand, the Commission reasonably held that CBS did not make a misrepresentation to the Commission. We therefore vacate and remand the Commission's decision in WGPR and affirm its decision in Stockholders of CBS Inc. So ordered. HOME DISINFORMATION 60 MINUTES 738 hits since 12Aug98 Jeannine Aversa Associated Press 12Aug98 FCC must review 60 Minutes Segment Serafyn had asked the FCC to turn down CBS' license request for WGPR-TV in Detroit - now WWJ-TV - arguing that the network was not fit to receive the license because it had aired a distorted news program. The Associated Press article below provides a brief introduction to the full United States Court of Appeals decision which is available on the Ukrainian Archive. The original of the Associated Press article was provided by Yahoo, more specifically at Jeannine Aversa. Wednesday August 12 2:58 AM EDT FCC To Look at '60 Minutes' Segment JEANNINE AVERSA Associated Press Writer WASHINGTON (AP) - Responding to a federal appeals court decision, government TV regulators will take a new look at whether CBS' "60 Minutes" intentionally distorted the news in a 1994 segment on the Ukraine. A Federal Communications Commission ruling against CBS on the matter could call into question the network's fitness to hold all or some of its broadcast licenses, said attorneys for the agency and for Alexander Serafyn, who led the court case against the "60 Minutes" report. But CBS attorneys, speaking on condition of anonymity, disagreed. They said only WWJ-TV in Detroit - the station involved in the present challenge - could be affected. On Tuesday the U.S. Court of Appeals for the District of Columbia concluded that the FCC didn't sufficiently explain why it decided not to hold a hearing on the allegations involving the "60 Minutes" segment. Given the court's ruling, the commission will re-examine the entire record, including Serafyn's allegations that the segment was intentionally distorted, an FCC attorney said. Serafyn had asked the FCC to turn down CBS' license request for WGPR-TV in Detroit - now WWJ-TV - arguing that the network was not fit to receive the license because it had aired a distorted news program. Serafyn, an American of Ukrainian ancestry who is retired and living in Detroit, had submitted evidence to the FCC involving his allegation about the broadcast, entitled, "The Ugly Face of Freedom." The FCC denied Serafyn's petition for a hearing, saying it would not investigate an allegation of news distortion without "substantial extrinsic evidence." The court said the FCC misapplied its standard for holding a hearing because it required Serafyn to demonstrate that CBS intended to distort the news rather than merely requiring that he "raise a substantial and material question of fact" - a less demanding test. CBS attorneys asserted there was no evidence the network intentionally distorted the segment. In addition, they said the FCC has never revoked a broadcast license on such grounds. The broadcast angered some viewers who believed that parts had been designed to give the impression that all Ukrainians harbor a strongly negative attitude toward Jews, the court said. "This is basically an effort on the part of the Ukrainian community," said Arthur Belendiuk, Serafyn's attorney. "The case is not so much about Mr. Serafyn as it is about a community that felt horribly maligned by what was said." After the FCC revisits the case, the commission has several options: It could issue a new order that basically upholds its 1995 order but provides more details on how the decision was reached; it could order a hearing on the matter; or it could ask interested parties to comment and then it could issue a new order, the FCC attorney said. Whatever the commission ultimately decides is likely to be appealed by the losing party, Belendiuk and other attorneys said. HOME DISINFORMATION 60 MINUTES 1156 hits since 12May98 Rabbi David H. Lincoln Ukrainian Weekly 30October94 A New York rabbi's response Rabbi David H. Lincoln of the Park Avenue Synagogue in New York was among the first to object to the 60 Minutes broadcast, The Ugly Face of Freedom of 23Oct94. Rabbi Lincoln has had a longstanding interest in Ukraine, inherited from his father, as is explained in the discussion of The Ukrainian Question in 1935. Everything below is from the Ukrainian Weekly. A New York rabbi's response Following is the text of a letter sent on October 25 to the CBS program "60 Minutes" by Rabbi David H. Lincoln of the Park Avenue Synagogue. The letter is reprinted here with the permission of Rabbi Lincoln, who last year traveled to western Ukraine. Park Avenue Synagogue 50 East 87 Street New York, N.Y. 10125 Mr. Jeffrey Fager, Producer CBS "60 Minutes" 524 West 57th Street New York, NY 10019 Dear Sir: I feel that your program on Lviv and Ukrainians was most unfair. To show boy scouts and say they are Nazis marching, to translate "Zhyd" as kike (in western Ukraine Zhyd is the word for Jew), to infer that the word for nation - "natsiya" - might mean Nazi etc., etc. - is most upsetting to many of us who know today's Ukraine. It really is time for us to enjoy the resurgence of Jewish life in Ukraine after the horrors of the German occupation and communism, and to appreciate the heroic efforts of the Ukrainian people and government to assist the Jewish community in all their endeavors. The history of Jewish-Ukrainian relations often tragic is a complicated one, but you would have done well to have informed the public of the better aspects of those contacts. For instance, Ukraine was the sole independent nation that had complete Jewish national autonomy (1917) and had Yiddish-speaking ministers in the government representing the rights of minorities. Today, when Russian Jews send their children to Ukraine for safe keeping in times of danger, no good can come from distortions such as those portrayed in your program. Yours faithfully, Rabbi David H. Lincoln HOME DISINFORMATION POLAND 8359 hits since 04-Feb-1998 Jerzy Kosinski: Grand Calumniator of Poland Jerzy Kosinski who the world understood to have been To Hell and Back The Audie Murphy of the Holocaust turned out to be little better than the Grand Calumniator of Poland Holocaust Witness Jerzy Kosinski Jerzy Kosinski was once to Poland what Simon Wiesenthal is today to Ukraine. Jerzy Kosinski was the grand calumniator of Poland; Simon Wiesenthal is the grand calumniator of Ukraine. The Poles have been successful in discrediting their grand calumniator; the Ukrainians are too timid to attempt to discredit Simon Wiesenthal. The present web page is dedicated to understanding Jerzy Kosinski, to congratulating the Poles, and to giving courage to Ukrainians. Who was Jerzy Kosinski? Jerzy Kosinski was born Jerzy Lewinkopf to Mojzesz (Moses) Lewinkopf and Elzbieta Lewinkopf (maiden name Elzbieta Wanda Weinreich). Six significant dates in Jerzy Kosinski's life were: 1933 born in Lodz, Poland 1959 entered USA on a student visa 1960 published The Future is Ours, Comrade, under pseudonym Joseph Novak 1968 won the National Book Award for The Painted Bird 1982 veracity challenged in Village Voice article, "Jerzy Kosinski's Tainted Words" 1991 committed suicide Biographer James Park Sloan I quote from two sources by the same author. I quote below from two sources, both written by James Park Sloan: (1) the magazine article, Kosinski's War, The New Yorker, October 10, 1994; and (2) the book, Jerzy Kosinski: A Biography, Dutton, United States, 1996. The first source provides the first two excerpts below, in blue, which by themselves present the chief features of the Kosinski story. The reader interested only in a broad outline need not read beyond these first two quotations. The second source provides a number of further excerpts shown in green, which serve to flesh in a fuller picture. The analogy to Audie Murphy in the above title was taken from p. 227 of this second source. Audie Murphy was the most decorated American soldier in WW II who went on to become a movie star, and played himself in the autobiographical war film, To Hell and Back. Who is James Park Sloan? The dust jacket of the Sloan book informs us of the following: JAMES PARK SLOAN is a professor of English at the University of Illinois at Chicago, a prize-winning novelist, and a widely published short story writer and critic. He knew Jerzy Kosinski for over twenty years before Kosinski's death. A Personal Experience I recollect, by the way, many years ago talking to a New York Jewish lawyer about Kosinski's book The Painted Bird, partly on the basis of which this lawyer held the deep conviction that Poles were pretty close to sub-human. When he told me about Kosinski's description of eyeballs being torn out as an incident that would not be clearly out of place in a Polish household, I replied - to his discomfort - that such a scene would be about as typical in a Polish household as it would be in an American one. When I added that the only Poles that I had ever known were intelligent, civilized, and cultured he did not reply, but his manner suggested that I had told him something that was a patent impossibility. What's the Relevance? Why is so much attention given to Jerzy Kosinski below, even to the point of touching on his sexual deviance and other character defects? As already mentioned above, Kosinski provides a precedent of a calumniator of a Slavic peoples who has been successfully and thoroughly discredited, and whose example thus may give Ukrainians courage to similarly discredit their many calumniators, chief among whom is Simon Wiesenthal. Beyond that, however, the Kosinski biography provides unusually detailed information which brings to the fore several generalizations which may assist in the understanding of the phenomenon of anti-Ukrainian calumny. The Gang of Ten Let us begin. Heading the list of anti-Ukrainian calumniators are the following nine: Yitzhak Arad, Dov Ben-Meir, Yaakov Bleich, Alan Dershowitz, Sol Littman, Morley Safer, Neal Sher, Elie Wiesel, and Simon Wiesenthal. If we expand this list to include prominent calumniators of Slavs, Jerzy Kosinski makes it a list of ten. In order to express my disapproval of these individuals, and in order to encourage in Slavs in general, and in Ukrainians in particular, an attitude of bold intolerance toward their misdeeds, I propose that they be called "the gang of ten," as I myself do below. Incidentally, the link to Sol Littman above will take the reader to the very section in "The Ugly Face of 60 Minutes" that deals with Littman, but only when using a Netscape browser - readers relying on other browsers will have to use CTRL+F to get down to the section titled "Sol Littman's Mengele Scare." Examining the gang of ten, it is possible to arrive at several generalizations, the chief of which may be the following: (1) The gang of ten is Jewish. One notices immediately that all ten of these calumniators of the Slavs are Jewish. This observation reminds us that in examining those who were responsible for the 23Oct94 60 Minutes story, The Ugly Face of Freedom, seven out of seven of those in the chain of command proved to be Jews (three being common to both lists). But are there any non-Jewish calumniators? Of course there are, and where I find them, I impartially include them on the Ukrainian Archive. Trouble is, I don't find many, and their calumniation does not rank as high. One of these is University of Toronto historian Robert Magocsi, and another is Harvard University historian Omeljan Pritsak. Offhand, I can't think of any others. But while Magocsi and Pritsak distort, they cannot compare with any of the gang of ten (or with any of the CBS gang of seven). The really egregious calumniation comes only from Jews. Henryk Sienkiewicz. Henryk Sienkiewicz (among my favorite novelists for his Quo Vadis) comes to mind as a Polish calumniator of Ukraine (in his novel about Bohdan Khmelnytsky, With Fire and Sword), but he is not discussed on the Ukrainian Archive primarily because he is not contemporary, and also because, like Magocsi and Pritsak, he is more subtle. The Ukrainian Archive restricts attention to contemporaries whose calumniation is egregious. The Ukrainian archive does not focus on Jews. It has been more than once remarked that the Ukrainian Archive focuses on Jews, which is incorrect - which is no more than an additional calumniation of Ukrainians. The truth is that the Ukrainian Archive focuses on calumniators, and it incidentally happens that the chief of these are Jews. If the leading calumniators of Ukraine had proven to be Czechs or Poles or Romanians or Hungarians or Russians or Germans or Armenians or Iranians or Palestinians or Chinese or whatever, I would have impartially and disinterestedly featured them instead of Jews. If someone can bring to my attention prominent contemporary non-Jewish calumniators of Ukraine that I have been overlooking, I will gladly give them generous representation on the Ukrainian Archive, and if such non-Jewish calumniators overwhelm the Jewish calumniators by their numbers, then all the better. The prominence of Jews on the Ukrainian Archive is not to be explained by looking into my psyche, it is to be explained by examining the characteristics of calumniators of Ukraine. It is not for me to justify why Jews appear so frequently on the pages of the Ukrainian Archive, it is for Jews to explain why no Gentiles can be found whose anti-Slavic calumnies are able to compete with those of the Jews in the gang of ten (or with those of the Jews in the CBS gang of seven). (2) The gang of ten is prominent. One notices too that these are not ten obscure Jews, but highly placed ones. Their names are recognizable. They constitute a Jewish leadership. They hold high office within the Jewish community, or within society generally. Two have been spoken of as candidates for Nobel prizes. They frequently appear on television or are quoted in the media or are cited in the discussion of Jewish affairs. Perhaps the only other Jews who equal or exceed them in prominence fall into three categories: (i) Jews functioning in a non-Jewish capacity, as for example musicians and scientists; (ii) North American Jewish politicians, particularly Congressmen, Senators, or Mayors in the United States, but again functioning only in small part as Jewish representatives; and (iii) Israeli politicians and military leaders. However, restricting our attention to Jews who live in, or who are influential in, North America, and to those who appear expressly as representatives of Jewish interests, the gang of ten constitutes a dominant clan. They set the agenda for Jewish-Slavic dialogue. Even the one who lives in Austria (Simon Wiesenthal), and the two who live in Israel (Yitzhak Arad and Dov Ben-Meir), are able to make their presence felt in North America either during their visits, or in being covered by the media, or by means of their court room testimony either in Israel or in North America. American Jews such as Noam Chomsky and Norman Finkelstein are also highly prominent, and do speak on Jewish affairs, but speak primarily of the State of Israel, and - unfortunately - have little to say about the Slavic world. Overwhelmingly, the Jews who step forward to speak on the Slavs do so only to calumniate. Whereas individual Jews have occasionally stepped forward to defend Ukrainians, I know of none who does so on an ongoing basis the way that the gang of ten defames Ukrainians on an ongoing basis. Raul Hilberg. Jewish historian Raul Hilberg deserves mention as falling in a class by himself. I do not agree with everything he says, but in cases where I disagree, I do not regard Hilberg as guilty of calumny, but only as falling within the range of responsible but divergent opinion which is to be expected upon any historical question. Raul Hilberg has amply demonstrated that he is ready to be guided by the evidence to conclusions without regard to whether they are palatable to Jews or Germans or Ukrainians or other involved parties. (3) The gang of ten is typified by deception. I understand calumniation to mean damaging utterances characterized by untruth. An utterance that is true, I do not characterize as calumny no matter how damaging. To not mince words, then, the gang of ten is a pack of liars. The most fantastic, the most childish, the most palpably untrue statements spew from their lips in profusion, as is amply documented on the Ukrainian Archive. They suppress evidence, they create historical events out of thin air, they contradict themselves from one recitation to the next. (4) The gang of ten enjoys impunity for lying. When the deceptions of any of these calumniators are brought to their attention, or to public attention, the refutations are ignored. The ten calumniators appear to be able to say whatever untruths they want with little fear of punishment or censure or even embarrassment. They rarely have to correct their misstatements, or to retract them, or to apologize for them. Of the ten, only Jerzy Kosinski has lost his impunity, but he did nevertheless enjoy a large measure of impunity over many years of his professional calumniation. The generalization, therefore, is not that the gang of ten enjoy absolute and permanent impunity, but only that they enjoy surprising measures of impunity over surprising intervals of time. (5) The gang of ten is typified by modest intellectual capacity. On the whole, the members of the gang of ten have the minds of children. This is demonstrated primarily in their lying which is primitive and palpable, and which is not merely occasional, but which permeates their thinking. On top of that, their speech and their writing tends to be illogical to the point of incoherence. They are strangers to the ideal of being constrained by logic. They don't know the facts, and they don't rely on facts. In not a single case have I come across anything any of them might have said or written touching on Ukrainian-Jewish relations that one would be forced to admire - or so much as respect - for its reasoning or its data or its expression. Given their prominence and their power, their academic and intellectual accomplishments, on the whole, are unimpressive. The bulk of their writing would get C's or worse if submitted in freshman courses in history or political science or journalism. The only one of the ten to achieve an unambiguous distinction outside his calumniation activities is Alan Dershowitz - Harvard law professor, media star, defender of O. J. Simpson. He alone among the ten must be acknowledged to have substantial academic qualifications and to show flashes of intelligence and wit. However, restricting myself to his statements on Ukrainians or Palestinians, I find Dershowitz's thinking fully as primitive and as childishly self-serving and as duplicitous as that of the other nine. The incongruity between low desert and high reward is particularly great in the case of Jerzy Kosinski; the evidence below will demonstrate that in addition to lacking academic capacity, and in addition to lacking literary skills, every area of his life was crippled by immaturity, irresponsibility, deception, and perversion. What picture emerges? Is there any way of tying all of the above generalizations into a single coherent picture? Why should it be the case that the leading slanderers of Ukrainians are all Jewish? How can it be that Jewish leaders are so prone to lying, and have such palpable intellectual shortcomings, and sometimes even remarkable character defects? How does it come to pass that they are permitted to incite hatred against Ukrainians with impunity? The answers to these questions can be found throughout the Ukrainian Archive. An individual Pole is persecuted by Simon Wiesenthal Jerzy Kosinski calumniated the Polish people collectively. Simon Wiesenthal persecuted a single Pole - Frank Walus - individually. Time For the Quotes And now for the quotations from Sloan's article: Jerzy Kosinski's "Painted Bird" was celebrated for its "overpowering authenticity": "Jerzy was a fantastic liar," said Agnieszka Osiecka, Poland's leading pop lyricist and a familiar figure in Polish intellectual circles.... If you told Jerzy you had a Romanian grandmother, he would come back that he had fifteen cousins all more Romanian than your grandmother ... and they played in a Gypsy band!" Osiecka was responding to a recent expose by the Polish journalist Joanna Siedlecka, in which she argued that Jerzy Kosinski, Poland's best-known Holocaust survivor, had profoundly falsified his wartime experiences. According to Siedlecka, Kosinski spent the war years in relatively gentle, if hardly idyllic, circumstances and was never significantly mistreated. She thus contradicts the sanctioned version of his life under the German occupation, which has generally been assumed to be only thinly disguised in his classic first novel, "The Painted Bird," published in this country by Houghton Mifflin in 1965. ... In stark, uninflected prose, "The Painted Bird" describes the disasters that befall a six-year-old boy who is separated from his parents and wanders through the primitive Polish-Soviet borderlands during the war. The peasants whom the boy encounters demonstrate an extraordinary predilection for incest, sodomy, and meaningless violence. A miller plucks out the eyeballs of his wife's would-be lover. A gang of toughs pushes the boy, a presumed Gypsy or Jew, below the ice of a frozen pond. A farmer forces him to hang by his hands from a rafter, just out of reach of a vicious dog. In the culminating incident of the book, the boy drops a missal while he's helping serve Mass and is flung by the angry parishioners into a pit of manure. Emerging from the pit, he realizes that he has lost the power of speech. ... "Written with deep sincerity and sensitivity, this poignant account transcends confession," Elie Wiesel wrote in the Times Book Review. At the time of Kosinski's suicide, in 1991, Wiesel said, "I thought it was fiction, and when he told me it was autobiography I tore up my review and wrote one a thousand times better." Wiesel's review sanctified the work as a valid testament of the Holocaust, more horrible, more revealing - in a sense, truer - than the literature that came out of the camps. Other writers and critics agreed. Harry Overstreet wrote that "The Painted Bird" would "stand by the side of Anne Frank's unforgettable 'Diary'" as "a powerfully poignant human document," while Peter Prescott, also comparing it to Anne Frank's "Diary," called the book "a testament not only to the atrocities of the war, but to the failings of human nature." The novelist James Leo Herlihy saluted it as "brilliant testimony to mankind's survival power." "Account," "confession," "testament," "document," "testimony": these were the key words in the book's critical reception. What made "The Painted Bird" such an important book was its overpowering authenticity. Perhaps it wasn't exactly a diary - six-year-olds don't keep diaries - but it was the next best thing. And in one respect it was better: Kosinski was Anne Frank as a survivor, walking among us. "The Painted Bird" was translated into almost every major language and many obscure ones. It was a best-seller in Germany and won the Prix du Meilleur Livre Etranger in France. It became the cornerstone or reading lists in university courses on the Holocaust, where it was often treated as a historical document, and, as a result, it has been for a generation the source of what many people "know" about Poland under the German occupation. At the height of Kosinski's reputation, there were those who said that somewhere down the road Kosinski was a likely candidate for the Nobel Prize. (Jerzy Kosinski, Kosinski's War, The New Yorker, October 10, 1994, pp. 46-47) But turned out to be fabricated out of whole cloth: According to Joanna Siedlecka ..., Kosinski's wrenching accounts of his wartime experiences were fabricated from whole cloth. ... Siedlecka contends that Kosinski spent the war with his family - his mother, father, and later, an adopted brother - and that they lived in relative security and comfort. The Kosinskis survived, she suggests, in part because Jerzy Kosinski's father, whose original name was Moses Lewinkopf, saw bad times coming and acquired false papers in the common Gentile name of Kosinski; in part because they had money ... and were able to pay for protection with cash and jewelry; and in part because a network of Polish Catholics, at great risk to themselves, helped hide them. Siedlecka portrays the elder Kosinski not just as a wily survivor but as a man without scruples. She maintains that he may have collaborated with the Germans during the war and very likely did collaborate with the N.K.V.D., after the liberation of Dabrowa by the Red Army, in sending to Siberia for minor infractions, such as hoarding, some of the very peasants who saved his family. Her real scorn, however, is reserved for the son, who turned his back on the family's saviors and vilified them, along with the entire Polish nation, in the eyes of the world. Indeed, the heart of Siedlecka's revelations is her depiction of the young Jerzy Kosinski spending the war years eating sausages and drinking cocoa - goods unavailable to the neighbors' children - in the safety of his house and yard.... (Jerzy Kosinski, Kosinski's War, The New Yorker, October 10, 1994, p. 48) Right from the start, Kosinski wrote under duress - an impecunious young man, particularly situated to be of use to clandestine forces, he could leapfrog to advancement only by cooperating with these forces. Thus, his first book, the Future is Ours, Comrade (1960), was published under the pseudonym Joseph Novak, and appears to have been sponsored by the CIA: Czartoryski recommends Kosinski to the CIA. Between Kosinski's penchant for telling more than the truth and the CIA's adamant insistence on telling as little as possible, the specific financial arrangements concerning the "book on Russia" may never be made public. Indeed, full documentation probably does not exist. A number of facts, however, argue strongly that there was CIA/USIA intermediation on behalf of the book, with or without Kosinski's full knowledge and understanding. One major piece of evidence is the name of the original titleholder on the Doubleday contract: Anthony B. Czartoryski. A further clue was the address to which communications for "Czartoryski" were to be delivered: the Polish Institute of Arts and Sciences in America at 145 East Fifty-third Street. The clear presumption is that Czartoryski became aware of Kosinski's notes, suggested the possibility of a book to his contacts within the CIA, and then had the manuscript delivered to Doubleday, which already was quite familiar with arrangements of this nature; Gibney served unwittingly to protect the author's identity and the manuscript's origin. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 112) Surprisingly quick production. As for the book, not only its instant acceptance but its quick production would remain a mystery for many years. How could a graduate student at Columbia - struggling with his course work, engaged in various side projects as a translator, and busy with the details of life in a strange country - how could such a person have turned out a copy that could be serialized in the editorially meticulous Reader's Digest in less than two years? (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 117) Exactly what the CIA would have wanted. All in all, the book is everything an American propaganda agency, or the propaganda arm of the CIA, might have hoped for in its wildest dreams. In broad perspective, it outlines the miserable conditions under which Soviet citizens are compelled to live their everyday lives. It shows how the spiritual greatness of the Russian people is undermined and persecuted by Communism. It describes a material deprivation appalling by 1960s American standards and a lack of privacy and personal freedom calculated to shock American audiences. The Russia of The Future is Ours is clearly a place where no American in his right mind would ever want to live. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 129-130) As Kosinski's veracity in The Painted Bird came increasingly under question, his support came most noticeably from Jews, reinforcing the hypothesis of a Jewish tendency to side with coreligionists rather than with truth, despite the consequent lowering of Jewish credibility: Byron Sherwin at Spertus also checked in with his support, reaffirming an invitation to Kosinski to appear as the Spertus award recipient at their annual fund-raiser in October, before 1,500 guests at Chicago's Hyatt Regency. He mentioned a list of notable predecessors including Arthur Goldberg, Elie Wiesel, Philip Klutznick, Yitzhak Rabin, and Abraham Joshua Heschel himself; the 1978 recipient, Isaac Bashevis Singer, had recently won the Nobel Prize. Kosinski was deeply moved by this support from Sherwin and Spertus, and its direct fallout was a move to make Spertus the ultimate site for his personal papers, with Sherwin serving as coexecutor of his estate. At the same time it accelerated his movement back toward his Jewish roots. In his greatest moment of crisis, the strongest support had come not from his fellow intellectuals, but from those who identified with him as a Jew. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 389) Not only did the Jews get mileage out of The Painted Bird, but so did the Germans, at the expense of the Poles, of course: The German edition was a hit. The book was doing reasonably well in England and France, better certainly than in America, but the German edition was an out-and-out hit. For a Germany struggling to shuck off the collective national guilt for World War II and the Holocaust, its focus on the "Eastern European" peasants may have suggested that sadistic behavior and genocide were not a national trait or the crime of a specific group but part of a universally distributed human depravity; a gentler view is that the book became part of a continuing German examination of the war years. Perhaps both views reflect aspects of the book's success in Germany, where Der bemalte Vogel actually made it onto bestseller lists. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 234) Attempt to dilute German guilt. The Warsaw magazine Forum compared Kosinski to Goebbels and Senator McCarthy and emphasized a particular sore point for Poles: the relatively sympathetic treatment of a German soldier. Kosinski, the review argued, put himself on the side of the Hitlerites, who saw their crimes as the work of "pacifiers of a primitive pre-historic jungle." Glos Nauczycielski, the weekly publication of the teaching profession, took the same line, accusing The Painted Bird of an attempt "to dilute the German guilt for the crime of genocide by including the supposed guilt of all other Europeans and particularly those from Eastern Europe." (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 236) Although Sloan does not speculate that the French may have had similar motives to the Germans for promoting Kosinski's book, we have already seen the French buying protection from accusations of complicity in the Holocaust, and wonder whether the high honor they paid The Painted Bird may not have been motivated to further deflect attention from their own collaboration: Kosinski returned to New York on April 14, and only two weeks later received the best news of all from Europe. On May 2, Flammarion cabled Houghton Mifflin that L'Oiseau bariole had been awarded the Prix du Meilleur Livre Etranger - the annual award given in France for the best foreign book of the year. Previous winners included Lawrence Durrell, John Updike, Heinrich Boll, Robert Penn Warren, Oscar Lewis, Angus Wilson, and Nikos Kazantzakis. New York might be the center of publishing, but Paris was still, to many minds, the intellectual center of the universe, and Kosinski had swept the French intellectual world off its feet. Any who had doubted the aesthetic merits of The Painted Bird were now shamed into silence. The authority of the "eleven distinguished jurors" was an absolute in New York as in Paris; Kosinski's first novel had swept the board. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, pp. 234-235) The question has been raised on the Ukrainian Archive of what conditions are likely to lead to the creation of a great liar. One such condition might be a modest intellectual endowment which limits the achievement that is possible by legitimate means. In Jerzy Kosinski's case, Sloan drops many clues indicating that Kosinski's academic career was a disaster, among these clues being political maneuvering on Kosinski's part as a substitute for performance, which maneuvering occasionally degenerated into "the dog ate my homework" quality excuses, in this case being made on Kosinski's behalf by patron Strzetelski: Kosinski had used his time fruitfully, Strzetelski argued, in spite of his impaired health and "the accident (combustion of his right hand) which made him unable to write during almost the whole 1959 Spring Session." It was the first and last mention in the file of the injury to Kosinski's hand, which had not impaired his ability to produce lengthy correspondence. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 123) Kosinski was unable to rise to academic standards. He disappointed his friends. He was shunned by responsible scholars: Unlike Kosinski, Krauze took the discipline of sociology very seriously; he was deeply committed to his studies, and it troubled him that Kosinski was so blithely dismissive of its rigor and of the hurdles required in getting the Ph.D. By then Kosinski was busy looking at alternative ways to get approval of his dissertation. One of them involved Feliks Gross: he proposed a transfer to CCNY, where he would finish his doctorate under Gross's supervision. In Krauze's view, Kosinski had simply run into a buzzsaw in Lazarsfeld, his Columbia supervisor, a man who could not be charmed into dropping the rigor of his requirements. Gross too promptly grasped that Kosinski was trying to get around the question of methodological rigor; he politely demurred and excused himself from being a part of it. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 169) The pedestrian task of writing an examination, for Kosinski became a trauma, and his capacity for academic work deteriorated to the level of the pitiable: [H]e had neglected the necessary preparation for his doctoral qualifying exam, the deadline for which now loomed. On February 19 [1963] Kosinski sat for the examination as required. Midway through, he informed the proctor that he was unable to continue. [...] [H]is flight from the doctoral exam marked a low point in his life in America - his academic career blocked, with no alternative in sight. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 186) But Kosinski was not only a student who could not study - he was also, and more importantly, a writer who could not write: Kosinski did well enough in spoken English, to be sure; his accent and his occasional Slavicisms were charming. But writing was a different matter. He was, quite simply, no Conrad. In writing English, the omission of articles or the clustering of modifiers did not strike readers as charming; instead, it made the writer appear ignorant, half-educated, even stupid. Conrad wrote like an angel but could not make himself understood when he opened his mouth; with Kosinski, it was exactly the other way around. Which might not have been such a handicap had not Kosinski been a writer by profession. From the beginning of his life as a professional writer, Kosinski had to protect a terrible secret: He could not write competently in the language in which he was published. Whenever he wrote a simple business letter, his reputation was at risk. Even a letter he wrote to his British agent, Peter Janson-Smith, required a hasty followup; the solecisms and grammatical errors were explained as the result of failure to proofread. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 174) In view of Kosinski's inability to write, it is little wonder that he was accused of using ghost writers and translators who contributed more than their translation. He was also accused of plagiarism: On June 22, 1982, two journalists writing in the Village Voice challenged the veracity of Kosinski's basic account of himself. They challenged his extensive use of private editors in the production of his novels and insinuated that The Painted Bird, his masterpiece, and Being There, which had been made into a hit movie, had been plagiarized from other sources. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 6) The accusation that Kosinski's Being There was plagiarized was particularly easy to document: In its protagonist, its structure, its specific events, and its conclusion, the book bore an extraordinarily close resemblance to [Tadeusz] Dolega-Mostowicz's 1932 novel The Career of Nikodem Dyzma, which Kosinski had described with such excitement two decades earlier to his friend Stanislaw Pomorski. The question of plagiarism is a serious one, and not susceptible of easy and final answer; ultimately the text of Being There resembles the text of Nikodem Dyzma in ways that, had Dolega-Mostowicz been alive and interested in pressing the matter, might have challenged law courts as to a reasonable definition of plagiarism. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 292) As in the case of other great frauds like Stephen Glass, Jerzy Kosinski for a time appeared unassailable no matter how outrageous his falsehoods. The reference below is to a letter from Jerzy Kosinski to The Nation literary editor Betsy Pochoda: The letter had been riddled with such errors that, in her view, its author could not possibly have been the writer of Kosinski's award-winning novels. Over the years she had picked up literary gossip about Kosinski's supposed "ghost writers" and had decided that such gossip was altogether plausible. In early 1982 she shared her opinion with Navasky, and made him a strange bet. People well enough situated in America, she bet him, could get away with anything, even if their most shameful secrets were revealed. (James Park Sloan, Jerzy Kosinski: A Biography, Dutton, United States, 1996, p. 384) A second condition which might promote the creation of a great liar might be an environment which condones or even encourages lying. Sloan demonstrates that at least Jerzy Kosinski's mother did indeed provided such an environment, and goes on to describe how such lying may have originated as a survival tactic. Please note that Sloan's description of the wartime environment which might have created a subculture based on lying not only provides an excuse for habitual lying, but provides also an excuse for greeting with a measure of skepticism some of the more extreme stories told by immigrants coming from such a subculture. The situation Sloan describes below is one in which Jerzy Kosinski's career success has depended upon his telling stories of his youth which his mother, Elzbieta Kosinski, would know to be untrue, and with the mother arrived from Poland to dote on her successful son in New York: At the same time, there was a dilemma to be resolved. By that time he had regaled the entire Polish emigre circle and much of Mary Wier's New York society with stories of his catastrophic and solitary adventures during the war - the wandering from village to village, the dog that had leaped at his heels, the loss of speech, the reunion at the orphanage where he was identified by his resemblance to this mother and the mark on his rib cage. What if conversation got around to those wartime experiences? What, God forbid, if someone casually asked her where the adult Kosinskis had been during the war? The question had come up, and he had managed to get away with vague answers. Swede