or else face the obligation to give rival candidates equal time? The answer is yes, under 47 U.S.C. § 315(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 provision of this section. No obligation is hereby 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....
Entertainment programming is not included within any of these exceptions; and the FCC and the courts have ruled that appearances as actors or entertainers are covered as "use [of] a broadcasting station." See, e.g., Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974) (entertainment appearances by comedian and jocular Presidential candidate Pat Paulsen); In re Weiss, 58 F.C.C.2d 342 (1976) (broadcast of movies in which Ronald Reagan had acted); In re Culpepper, 99 F.C.C.2d 778 (same); 100 F.C.C.2d 1476 ¶ 34(d) (1984) ("If an actor becomes a legally qualified candidate for public office, his appearances on telecasts of his movies thereafter will be uses, entitling his opponents to equal time, if the actor is identifiable in the movies"); id. ¶ 34(e) (taking the same view for other broadcast appearances, for instance by "the host of a teenage dance show," "a radio disc jockey," and a minister on a religious program); see also Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1987) ("equal opportunities" requirement is triggered when a TV reporter continues to appear on the TV program after announcing his candidacy for city council, even though he had long been a regular reporter, and even though his reporting was not directly related to his candidacy; none of the news exceptions were found to apply).
The FCC's repeal of the Fairness Doctrine does not affect this, since this is a Congressionally enacted statute that's separate from the Fairness Doctrine and outside the FCC's power to repeal. Arguments that entertainment should be treated like news coverage won't carry the day in court, since the statute clearly limits the exceptions to news coverage. (The "Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section" language simply means that the broadcaster generally may not restrict what candidates say in various contexts. It does not exempt entertainment appearances from triggering the rule, even though those appearances were originally subject to the broadcaster's control.)
Related Posts (on one page):
- More on How We've Supposedly Lost Our Traditional Free Speech Rights:
- The History of Broadcast Content Regulation:
- Are We Losing Free Speech Protections?
- Must NBC Stop Running Law & Order Episodes With Fred Thompson if He Announces His Candidacy,
By that reasoning, we might as well ban Mickey Mouse cartoons during election years. After all, lots of people write in "Mickey Mouse" on their ballots.
Another interesting case would be raised if an active sports figure ran for public office. Would telecasts of that person's sporting events qualify as news stories?
Nick
IMDB suggests that he has appeared in 115 of the 392 episodes aired so far, BTW.
He is now being punished - and his political opponents can be given an advantage - for the actions of others who might choose to run his prior episodes in which he appeared. What a foolish and overreaching ruling.
In the meantime, if L&O marathons were to be run so that thems of us w/PVRs can record them before Fred announces, would that count, too? Would it matter if NBC et al specifically said "Quick, watch Fred while you can; that's why we're doing the marathon!"
I spoke with the programming director there about it, and he was of the belief that it was legal because it was in a different market. Perhaps true, but this suggests that his opponent could well have gotten a nationally syndicated radio show for the asking.
I at first thought of the "definition of use" issue myself, but you have to assume, as a matter of interpretation, that the exceptions are necessary. I can't think of a situation where the activities listed in the exceptions ARE "use" while appearing as an actor in an entertainment show is NOT "use." The documentary exception is a particularly difficult to get around in this regard.
Somebody really needs to explain to Congress and the FCC that we no longer have just 3 TV stations in this country, and so they can ease up on the control reins a bit.
Or they could have someone else dub his voice, as the BBC once did for video clips of IRA leader Gerry Adams....
I don't have a dog in this fight (I haven't decided who to vote for, and largely I think concerns from Thompson supporters about the fairness of removing his L&O exposure is overblown), but I laughed quite hard at this.
I mean, if it's good enough for a trial, then why not here as well?
And he’s probably appeared for an average of about ten minutes per episode.
I note that the statute requires that the licensee provide “equal opportunities to all other such candidates for that office in the use of such broadcasting station.” Since Thompson’s “opportunity” to “use” the broadcasting station consists solely of appearing on the show as an actor reciting lines from a script – does that mean then that all NBC would have to do is offer other candidates a chance to appear for ten minutes as a guest character? E.g. Ron Paul and Dennis Kucinich appearing as crazed homeless conspiracy theorists, Barack Obama as coke dealer #3, Hillary Clinton as the real killer, etc. That would be the same “opportunity” that Fred Thompson has because it’s not as if he can just say or do anything he wants when he appears on the show.
Unless of course this statute would be construed as saying that because the “licensee shall have no power of censorship over the material broadcast” from now on, Fred Thompson as Arthur Branch can say whatever the hell he wants (“Jack you’re a putz and your disposable ADA adds nothing but eye candy to the story”). If we’re going to say that appearing as an actor reciting lines from a script constitutes the use of a broadcasting station, how do we rectify a requirement that other candidates be provided “equal opportunities” to use the station without “censorship” when the original “user” “use” of the station was operating under very tight controls of what he could (not) say?
Bad laws, politicized judges and weak interpretations, yep we have the bestus system in the world.
Suppose his role is the village idiot?
They do understand that, and that's what has their nickers in a knot. It's a new game now. Massive, uncontrolled, and easily accessible political speech doesn't make anyone in power very comfortable.
I predict UTube will be the most popular political site this election cycle as very clever amateurs post really good video clips they put together in the privacy of their own chambers. Anonymous postings to UTube, followed by the network effect of people emailing the clips to each other could overwhelm the organized campaigns. (Which campaign has already organized its UTube Fifth Column?)
The phrase "appearances on telecasts of his movies thereafter" begs the q, and perhaps someone here can answer it: does it mean any and all telecasts that occur after the actor becomes a candidate, or does it mean the actor's movies that are made after (and presumably during the time that) the actor becomes a candidate?
i.e. is it to be construed as "appearances thereafter" or "movies thereafter"...?
On the surface of it, either is colloquially valid, tho I suspect that the 9th meant the former.
Saying that Thompson doesn't own L&O solves nothing. A political candidate/moviemaker could easily assign his works to an "educational" organization, making sure he doesn't "own" them either.
For example, suppose Fred got the L&O writers to give Branch lines like: "Based on my extensive experience as a prosecutor, I can firmly say that lawyers like Hillary, Obama, and Edwards are the worst thing to happen to this country since disco!" - And then we are subjected to a marathon of that episode.
Agreed, but one could clearly specify that the licensed station not be taking direction from Fred, be it directly or thru go-betweens. I'm pretty sure L&O is peddling its reruns on its own, for profit in this case, and not simply at Fred's behest.
As for Al Gore reruns, why not? Run 'em all. I doubt they'd sway anyone whose mind is not already made up, and as long as the licensees aren't doing it at Al's behest and are running them on their own,they can show them all they want, to dozens of people, same as Live Earth.
But would the statute withstand a First Amendment challenge?
Didn't the Goracle lable at least some of his recent hot air (pun intended) as "documntary"? A crock, of course, but quite possibly to get around this very issue (which is quite ridiculous).
So are the advertisers who pay the bills and watch the ratings.
Besides, what if it's legit, like what if Norman Borlaug ran for office shortly after making a documentary on how his research fed millions, including what he thinks should be done to continue the success? Where's the prob? People will judge for themselves.
On a totally unrelated note, I think xx is wrong. Tom Tancredo and Michael Moriarty look nothing alike.
I, too, long for the days of Ben Stone. IMHO, he was a much better prosecutor than Jack McCoy.
To get off on a tangent, anyone wonder how long it will be before we give up entirely on broadcast television in favor of cable and satellite? "Use of the public airwaves" is the fig leaf that allows Congress to regulate TV and radio content. But I'd guess that only a minority of viewers continue to get their TV over the air and the vast majority have the cable/satellite option.
Well, they banned "Bedtime for Bonzo" in 1980. Shame, that was.
I was so glad when RR got elected and I could get my regular entertainment again.
More interesting, this does not mention any such phrase as "equal time". Instead it requires a grant of "equal opportunities". What precisely is the opportunity granted Fred Thompson here? He's reading from a script in a production ultimately paid for by advertising.
So an equal opportunity would be a chance to read from a script over which the candidate has no control?
L&O is patently not what Congress had in mind during the drafting of the law... the words simply do not make sense in that context.
Because we don't have freedom of speech in America any more.
ISTR that when Ahnuld announced his campaign for Governor, CA stations stopped broadcasting the Terminator and Conan movies till after the election.
BTW, a trivia question: what is the only movie to feature two future governors?
Batman and Robin with Schwarzenegger and Ventura.
There's been at least three: Running Man, Predator, and Batman and Robin.
Had they been in the show, they would have used the station. If they are in some other show the station would air anyway, they will use the station.
Now if they deliberately suppress shows with another candidate in them but show Fred Thompson episodes, that would violate the statute. But they can refuse to suppress any shows on the grounds that they contain a candidate or show all shows based on other criteria even if they contain candidates. Both policies provide the equality of use opportunity the statute requires.
A broad definition of "use" is fine so long as the definition of "opportunity" tracks the attenuated level of the use.
Would that be Predator, featuring both a ripping Arnold Schwarzenegger and a chewin', cussin', Jesse "The Body" Ventura?
What future Governor and what future United States Senator starred in at least 2 movies together--and held their respective political offices during the same four year period (though both served in their respective offices for a period of time when the other did not)?
Senator George Murphy 1965-1971 and Governor Ronald Reagan 1967-1975 were both in This is the Army
Murphy was also in Little Miss Broadway (1938) with future UN Delegate, Ambassador to China, and Chief of Protocol, Shirley Temple Black.
My apologies for a misleading trivia question.
Could a station then play a "Law and Order" episode in which Thompson was on screen for 20 min 15 seconds, and then turn over 20 min 15 seconds of air time to the Democrats Nominee?
Sounds like an easy way to give 20 min or so of free air time to the democrat nominee to talk about whatever they wanted to talk about without having to allow the republican candidate an opportunity to respond. Repeat nightly.
The statute has been interpreted so that very, very attenuated "uses" count as "use". That's fine, so long as correspondingly attenuated opportunities count as well. The opportunity it supposed to correspond to the use, that's what the law says.