Must NBC Stop Running Law & Order Episodes With Fred Thompson if He Announces His Candidacy,

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):

  1. More on How We've Supposedly Lost Our Traditional Free Speech Rights:
  2. The History of Broadcast Content Regulation:
  3. Are We Losing Free Speech Protections?
  4. Must NBC Stop Running Law & Order Episodes With Fred Thompson if He Announces His Candidacy,
Are We Losing Free Speech Protections?

A commenter on the NBC must stop running Fred Thompson Law & Order thread writes,

And they must also cease broadcasting any movies where Fred was an actor, such as The Hunt For Red October where he was a carrier admiral.

Because we don't have freedom of speech in America any more.

The first paragraph is right, but the second one misses the boat. Remember that radio and television broadcasting was heavily regulated in the U.S. -- considerably more heavily than it is today -- nearly from its birth. The "equal opportunities" rule is quite old. Its exceptions for news are actually a Congressional liberalization of the rule following an FCC decision in the late 1950s that applied the rule even to certain news coverage of candidates. The Fairness Doctrine, in various of its guises, was around for decades until it was repealed by the FCC in the late 1980s.

The underlying ideology behind all these restrictions, which is chiefly that the communications spectrum is scarce public property that is held more or less as a public trust by the licensees, and that the licensees must therefore be subjected to various restrictions and access mandates -- even when those mandates deter the licensees from carrying certain speech -- has thus been around as long as broadcasting has been. In some measure, recent decades have seen something of a retreat from the high-water mark of such restrictions.

Nor can one say that somehow free speech protection was pure until the 1920s or 1930s in the non-broadcasting media, and the broadcasting restrictions were a retrenchment from traditional protection. Before the 1920s and 1930s, courts upheld various restrictions on advocacy of illegal conduct, broad libel rules that had the effect of deterring not just falsehood but opinion and true statements, obscenity laws that went far beyond hard-core porn, restrictions (often enforced by judges using criminal contempt power) on coverage of trials and criticism of judges, and a wide range of other restrictions. And movies essentially lacked any First Amendment protection from the 1910s to the 1950s.

So one can certainly argue against restrictions on broadcasters; I sympathize with these arguments, and there's some reason to think that the Court would, too, if such a case came before it. But there's no justification for casting this as some sort of recent loss of traditionally recognized free speech protections. Where it comes to broadcasting, the general trend has been towards more protection of broadcaster rights (especially with the abolition of the Fairness Doctrine, though with a bit of recent retrenchment on vulgarity and nudity), not less.

The History of Broadcast Content Regulation:

I just got my hands on my copy of Krattenmaker & Powe's Regulating Broadcast Programming, a very good book on the subject. A few highlights:

  1. The Radio Act of 1927 authorized licensing decisions based on the content of the speech (despite its provision supposedly banning "censorship").

  2. By 1930, the Federal Radio Commission was restricting what it saw as "propaganda stations," on the theory that "there is no place for a station catering to any group" (said in an opinion about a Chicago Federation of Labor station).

  3. By the early 1930s, the FRC was also restricting "bitter and personal" and "ignoran[t]" "attack[s]" on "public officials."

  4. This pattern of restriction continued for the following decades. In the 1960s WLBT, for instance, the FCC took steps (though not very strong steps) to restrict white racist television programming, on the theory that such programming didn't adequately serve black viewers. The D.C. Circuit eventually ordered the FCC to strip the station of its license.

  5. Likewise, in the early 1970s, the FCC expressly warned broadcasters that it was against their public service duties to play songs "tending to promote or glorify the use of illegal drugs," and issued a 22-song "do not play" list, including "Lucy in the Sky with Diamonds," "Mr. Tambourine Man," "Truckin," and others. Radio stations generally complied (at least for a time).

  6. The equal opportunities rules that had required broadcasters who chose to carry certain materials involving candidates to provide equal access to other candidates had been around since 1927. Their high water mark came in 1959, when a news reporting showing "Mayor Richard Daley greeting the president of Argentina at Midway Airport during a snowstorm" was found to trigger a duty to provide equal time to Daley's challenger (apparently something of a joke challenger) Lar Daly; this prompted Congress to provide some exceptions for news reports.

  7. The Fairness Doctrine's "roots go back to the FRC's hostility to 'propaganda stations'"; this turned in 1940 into the decision that broadcasters "could never editorialize," and then was revised in 1949 into the doctrine that broadcasters could editorialize but had to provide access to rival views.

There's more, but this should give people a sense of how restricted broadcast programming has been for nearly all of its existence. I say this not to praise the restrictions; far from it. I'm glad that the Court has cut back on the restrictions, at least apparently imposing a viewpoint-neutrality requirement, and I hope the Court cuts back on them still more. I'm glad that the FCC has repealed the Fairness Doctrine.

But I hope this warns people not to complain that somehow some broadcasting restrictions show that "we don't have freedom of speech in America any more." Whether we're talking about political speech or speech more broadly, broadcast speech is at least as free today from government restriction as it almost ever has been, and considerably freer than it has been at many times in the past.

More on How We've Supposedly Lost Our Traditional Free Speech Rights:

Commenter PGofHSM puts it well, responding to people who don't just complain about current speech restrictions, but argue that somehow we once had free speech but don't any more:

I'm still trying to figure out when the golden age of political free speech was.

A worthy challenge, I think. Let's even set aside sexually themed speech, purely commercial advertising, and epithets -- I think this speech should generally be constitutionally protected, but I'm willing to ignore that speech for purposes of this argument (since some of the people whom I'm generally trying to persuade believe that such speech is too far removed from political matters to merit protection). Let's focus on speech that is related to political, religious, or moral matters. When has such speech in the U.S. ever been materially more protected from government restriction, on balance, than it is now? I don't think there ever has been such a time.

I should say that I have argued against some relatively novel speech restrictions, such as hostile environment harassment law, or the recent broadening of restrictions on expensive speech about election campaigns. My point is simply that on balance speech protections, even when focusing on speech on political, religious, or moral matters, are about as broad today as they ever have been -- the high water mark having largely been achieved in the 1970s and 1980s, and on balance not materially retreated from since then -- and much broader than they often have been.