Michael Froomkin (discourse.net) points to an L.A. Times story about how "about how Law & Order reruns might have to be pulled if Fred Thompson runs for President," and asks:
If stations are so afraid of having to give equal time for other candidates that they’d rather pull the episodes, then surely it would be economically rational for the studios to put a routine “no running for office” clause in actors’ contracts that would apply so long as the reruns are showing?My question is whether that term would be enforceable: would it be against public policy? Or maybe fall to the same sort of doctrines that disfavor non-compete clauses that last more than a few months to (at most) a couple of years?
Well, California is one of about ten states that expressly or implicitly protect private employees from discharge for certain kinds of political activities. Cal. Labor Code § 1101 provides:
No employer shall make, adopt, or enforce any rule, regulation, or policy:The statute is written categorically, with no exceptions. One federal district court decision, Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993), stated that there might be an exception "when the employee's political activities are patently in conflict with the employer’s interests"; but I don't think that's a correct interpretation of the statutory text, or of Mitchell v. International Ass’n of Machinists, 196 Cal. App. 2d 796 (1961), the case that Smedley cited as precedent for its assertion.(a) Forbidding or preventing employees [or applicants for employment, according to a California Supreme Court decision] from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees [or applicants for employment].
So it sounds like such "no political candidacy" rules would likely violate the California statute, and would thus be illegal when it comes to employees working in California. Do they apply to actors who are ostensibly hired as independent contractors? I don't know the answer to that, though I suspect that simply labeling workers "independent contractors" wouldn't suffice to exempt them from coverage.
What if Law & Order employees are governed by New York law? New York is one of the other states with such a statute, N.Y. Labor Law § 201-d; this reads, in relevant part:
(1) (a) “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group ....A rule that bars employers from engaging in politics would likely be treated as presumptively impermissible discrimination based on their legal political activities. But that presumption would likely be rebutted in a situation such as the one Prof. Froomkin describes, because political activities that seem to legally mandate that an employee's work product no longer be salable would likely qualify as involving "a material conflict of interested related to the employer's ... business interest."(2)(a) ... [No employer may discriminate against an employee or prospective employee] because of ... an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory bans on politicking by government employees] ...
(3) [This section] ... shall not be deemed to protect activity which ... creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest [such as when the German National Tourist Office fired an employee for becoming known as the translator of some Holocaust revisionist articles -EV]....
If anyone knows more about this issue, please post about it in the comments.
Section 315 [47 USC §315]. Facilities for Candidates for Public Office
(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, that such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any --
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
I think the issue would probably be addressed under standard restrictive covenant law, which is to say, the covenant would be disfavored and the guidepost would be reasonableness. A promise not to run for office for one year after terminating employment (or, better yet, a provision providing for liquidated damages in such event) could conceivably be enforceable, but I doubt you could make it stick for however long reruns might run in syndication.
They had an editorial today about his connection with Naziism - because he played one in a few episodes of Wiseguy nineteen years ago.
And they were serious.
However, it is worthwhile to notice that the licensee is not required to give opposing candidates equal time free. The regs address the rates that a licensee may charge candidates demanding equal time at 47 CFR 73.1942.
Long story short, any candidate demanding equal time should be prepared to pay ordinary "most favored advertiser" rates for it. That may put a damper on frivolous demands for equal time.
Thompson was not on L&O when he ran for Congress. I recall reading that when Arnie ran for governor, networks stopped running his movies during the campaign. I don't believe the FCC has made a definitive interpretation on whether this applies to entertainment shows, but the networks are being extra cautious. It's not like there aren't ten seasons of non-Thompson L&O episodes to run. In any case, this only applies to the networks, not cable, so 1st Amendment concerns are minimized by the (bogus) Red Lion rule.
Suppose Jack Kemp had run for office while still QBing, rather than waiting until his professional football career was over. Would stations that televised Buffalo Bills games have to give equal time to those candidates competing against Kemp? Would the "equal time" have been measured by the length of time Kemp was on the field or the camera was on him, even if we could only see his jersey number, not his face? Would stations around the country that televised his games have to give those candidates air time, or only those stations whose signal reached potential voters where Kemp was competing?
How many others might this have effected? Fred
Grandy(?), the Love Boat purser, who was elected to Congress? Sonny Bono? That senator from CA?
Frankly, it seems silly to me that an actor's work should count for "equal time" purposes. Work as a commentator is different. If Thompson runs for President, then his work on ABC Radio as Permanent Guest Host for Paul Harvey certainly should be disallowed.
As for Bellisarius's question, it is a good one--Thompson's acting career preceeded and was interrupted by his Senate service. That said, I have no idea how Tennessee commercial television stations handled The Hunt for Red October, Marie, and other Thompson movies during his Senate career (or even campaigns).
What counts as actually putting the person in question on the air? If James Earl Jones, the voice of Darth Vader, ran for president, would showings of "Star Wars" trigger this rule though Jones is never seen onscreen in any fashion? What if the candidate was the guy who wore the Darth Vader costume, which completely obscured his face and body (except for that brief moment in Return of the Jedi, IIRC), would that count?
The regulation is clearly aimed at politicians who use airtime AS POLITICIANS. Not politicians who use airtime as quarterbacks, actors, pitch-men, etc. It would be nice if the enactments were specific, but they are not, but even the strictest of constructionists cannot say that Thompson is "using" NBC here.
Since Prowse's voice is not heard nor is any part of him seen in the movie, I don't think Prowse's performance is covered by the equal time rule. (By the way, the unmasked Vader in "Return of the Jedi" was played by Sebastian Shaw so Prowse would be exempt for that film too.) Of course, Prowse is British so he wouldn't be running for office in the USA anyway.
We discussed this a few weeks ago; if the reading of the statute suggested above holds, a television or radio station could find the most horrible, awful shows Thompson was employed in, air them, then give free response time to his opponent without having to declare it as a campaign expense.
Blue wrote at 5.4.2007 10:00pm:47 USC §315 is implemented by 47 CFR §1941 and following. 47 CFR §1941(b) defines the term "use". That definition is very broad, and the exceptions are very narrow:
I was watching Star Trek the Animated Series on DVD and one of the commentaries states that an episode that Lt. Sulu appeared in was not shown in LA when it was originally broadcast by NBC. It seems at the time George Takei was running for LA City Council.
I doubt the California statute would apply, for two reasons:
Steve (at 5:14 P.M.) explains the first.
The second is that the statute refers to any rule, regulation, or policy. Would bargaining for this restriction in actors' agreements constitute a rule, regulation, or policy? I don't think so, especially since most well-advised employers publish workplace regulation manuals, which they would be wise to leave silent on this subject.
Say it isn't so. One of the worst TV programs, animated or otherwise, in history.