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Why U.S. law may keep the Terminator off the air until after election

By Michael C. Dorf
FindLaw Columnist
Special to CNN.com


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CNN.com special report: The California recall election 

(FindLaw) -- Between now and October 7, broadcast television stations in California must be careful not to air "Terminator 2," reruns of "Diff'rent Strokes" or old "Saturday Night Live" episodes featuring Father Guido Sarducci.

Why? Because Arnold Schwarzenegger, Gary Coleman, and Don Novello, the respective stars of these fine pieces of entertainment, are all certified candidates for Governor in California's recall election. So are an additional 132 people.

Under a longstanding interpretation of a federal statute, even a non-political broadcast in which a candidate's picture is recognizable to the public triggers a right of opposing candidates to equal time. Thus, one airing of Schwarzenegger's Total Recall, which runs 113 minutes, could require a television station to grant access for an equal period to each of the other 134 candidates -- displacing a total of more than ten days of programming.

Can this really be the law? Bizarrely enough, yes. But that is only due to some dubious decisions by the Federal Communications Commission (FCC) and the courts.

The federal statute and its implementing regulations

The relevant statute, Section 315 of the federal Communications Act, states that any FCC licensee that permits "a legally qualified candidate for any public office to use a broadcasting station [must] afford equal opportunities to all other such candidates for that office in the use of such broadcasting station."

The statute does not apply to cable television, nor does it apply to news coverage. However, beyond these exemptions, it has been read broadly.

To begin, a federal regulation -- 47 CFR 73.1940 -- provides that a person whose name appears on the ballot counts as "a legally qualified candidate." In most elections, that limits the number of people eligible to take advantage of the equal access rule to a number in the single, or at most low double, digits. But not in the case of the California recall election. .

Arnold Schwarzenegger is flanked by advisers Warren Buffett, left, and George Shultz.
Arnold Schwarzenegger is flanked by advisers Warren Buffett, left, and George Shultz.

The law and its interpreting regulation raise an important initial issue: Should every non-news-related radio or television appearance of a candidate for office count as a "use" of a licensed broadcaster?

One perhaps might argue otherwise. Granted, an airing of Kindergarten Cop, in which Schwarzenegger plays an affable undercover police officer, or Terminator 2, in which he portrays a benevolent cyborg sent from the future to save humanity, could boost his standings in the polls. But in the original Terminator, Arnold is an evil robot sent from the future to destroy humanity. Perhaps his electoral opponents would actually benefit from repeated showings of the film.

Nonetheless, following Mark Twain's famous observation that there's no such thing as bad publicity, or perhaps simply trying to prevent broadcasters from having to make difficult judgments -- does airing Diff'rent Strokes help or hurt Gary Coleman's candidacy? -- the FCC has established a bright-line rule to define what counts as a "use" of a licensed broadcaster.

According to a 1984 FCC publication (one that, at least on this point, remains in effect), with the exception of news coverage, "any broadcast or cable cast of a candidate's voice or picture is a 'use' of a station . . . by the candidate if the candidate's participation in the program or announcement is such that he will be identified by members of the audience."

In short, political speeches, sitcom reruns, and appearances on The Tonight Show are treated identically.

Is the equal time law constitutional?

Readers may wonder how the equal time law can possibly satisfy the requirements of the First Amendment. If Congress cannot pass laws restricting freedom of speech and of the press, then how can the federal government instruct privately owned and operated television stations what to broadcast?

The issue came to the Supreme Court in the 1969 case of Red Lion Broadcasting Co. v. FCC At the time, FCC regulations promulgated to implement Section 315 of the Communications Act established something known as the "fairness doctrine." It required that radio and television broadcasters include discussion of public issues in their programming, and that each side of these issues be given fair coverage.

The regulations further provided that when a candidate for public office was the subject of a personal attack, or when a station editorialized against his or her candidacy (or for the candidacy of an opponent), the candidate had to be given airtime to respond.

The Court upheld the regulations on the basis of a legal theory that dates to the early days of radio. Prior to the establishment of the FCC, anybody with an antenna could send a radio signal on any frequency. As radio operators proliferated and transmission ranges increased, an intolerable situation arose: Signals from different stations bled into one another, resulting in cacophony.

The solution the government devised was licensing. The FCC would grant exclusive transmission licenses for discrete portions of the electromagnetic spectrum in designated geographic areas. But with the power to license, came the power to put conditions on license holders: In exchange for the economically and politically valuable right to monopolize the conversation on its particular bandwidth, each radio license holder was required to comply with FCC rules designed to implement the agency's understanding of what Congress called "the public interest."

The basic rationale for the fairness doctrine was scarcity. The useable portion of the electromagnetic spectrum permits only a finite number of broadcasters. Yet it would be unfair to those who are not lucky enough to win an FCC license to have their viewpoints excluded from the airwaves. Thus, the fairness doctrine and similar conditions constrained the editorial discretion of radio and (after its invention) television broadcasters, in the interest of making a scarce public resource -- the airwaves -- available to as broad a subset of the public as possible.

The scope of the scarcity rationale

The electromagnetic spectrum is not the only scarce commodity on the planet, of course. Thus, legislators in some states have sought to apply the rationale of the FCC rules to print media, as well.

As early as 1913, Florida had a law that gave political candidates who were the subject of editorial criticism by a newspaper the right to reply in a subsequent edition of the newspaper. But the Supreme Court unanimously held that the Florida law violated the First Amendment in a 1974 case, Miami Herald Pub. Co. v. Tornillo.

Did the combination of the precedents set by Red Lion and Miami Herald make sense? Arguably not. The Court in Miami Herald recognized the reality of concentration of ownership of print media, but found the right-of-reply statute to be an impermissible response. However, the evidence showed that the typical American metropolitan area is served by many fewer major newspapers than major radio and TV stations. And just five years prior, in the Red Lion case, the Justices had upheld the very same right-of-reply approach.

So what's the difference between TV and radio, on the one hand, and the print media, on the other? Remarkably, the Miami Herald decision did not even cite, much less attempt to distinguish Red Lion.

We can nonetheless infer the distinguishing principle from the pattern of the Court's decisions. It amounts to this: Under the First Amendment, speakers -- including major media -- are presumptively free of content regulation. Further, government generally may not require people or corporations to obtain a license to speak. However, the laws of physics make broadcast licensing a virtual necessity, and once government has the power to grant licenses, it can impose conditions on those licenses.

Under this rationale, it is not scarcity in itself that justifies rules like the fairness doctrine. Paper and ink are not, after all, in infinite supply any more than spectrum space is. Rather, it is the necessity of licensing the scarce commodity that distinguishes print from broadcast media.

Cable television: Does a scarcity rationale apply?

What about cable television? Can government require cable operators to grant access to candidates whom they do not support? Courts and commentators divided over whether cable is more like broadcast or print media in the relevant respects.

On one hand, a scarcity rationale similar to the one we saw in the context of the electromagnetic spectrum applies to cable TV. The cables that transmit television signals typically run on telephone poles or underground, and there are physical limits to the number of wires a given telephone pole can support, and the number of times that roads can be dug up to run cables under them.

On the other hand, television cables carry many more channels than are available on broadcast television. With potentially hundreds of cable channels, it is plausible to think that any message for which there is a substantial audience will find a cablecaster willing to transmit it. In this view, cable channels are not, as a practical matter, scarce.

The FCC changes its mind: Dropping the fairness doctrine

Whether the rule of Red Lion or Miami Herald applies to cable television is now largely an academic question. In 1987, the FCC revoked the fairness doctrine. Then later, in 2000, a federal appeals court ordered the elimination of the political attack and editorial rules as well.

Under the FCC's current thinking, the proliferation of broadcast, cable and satellite alternatives to what used to be the three major networks means that most TV viewers who cannot find messages to their liking on broadcast TV can find them elsewhere.

Indeed, when it revoked the fairness doctrine in 1987, the FCC took the position that it was not only unnecessary, but also unconstitutional. It wasn't that the Supreme Court had necessarily been wrong in Red Lion, but rather that changed circumstances since the late 1960s, the FCC said, had rendered Red Lion obsolete.

Implications for California's recall campaign and TV viewers nationwide

The courts have not yet ruled on the validity of that line of argument, but it's worth noting that if the FCC was right about the fairness doctrine in 1985, then Section 315 of the Communications Act -- the section that imposes an equal time requirement for all broadcasts featuring candidates -- may itself be unconstitutional.

Under Miami Herald, a newspaper or magazine that published the fiction writing of an author running for political office could not be required to give equal space to opposing candidates. Currently, the FCC's view appears to be that broadcast television should be governed by the same principles as print media. But if that is so, then Miami Herald applies to broadcast television too -- and there is no constitutional basis for the equal time rule that is keeping Schwarzenegger, Coleman, and Novello off the air in California.

In principle, therefore, a broadcast TV station could sue the FCC to enjoin enforcement of Section 315, on the ground that the statute violates the First Amendment. But that path is not promising.

Until the Supreme Court says otherwise, lower courts would be obliged to enforce Red Lion and uphold the equal access rule. And given its unhappy experience in Bush v. Gore, how likely is it that the high court would now risk being seen as thrusting itself into a contentious election to issue an expedited ruling favoring the Republican candidate?

In any event, television stations are not itching for a fight. On the contrary, even cable channels not generally subject to Section 315 have proved skittish. Last week the Sci-Fi channel and FX both canceled plans to run Schwarzenegger films until after the election.

Unfortunately, because these stations produce California programming from a national feed, that means that even those of us who live thousands of miles away from the Bear Republic will have to trudge to the video store if we want to see "Running Man" or "Conan the Destroyer" before October 7. The horror, the horror.

Columnist image

Michael C. Dorf, a FindLaw columnist, is professor of law at Columbia University School of Law. He lived in Los Angeles for one year in the early 1990s but has nonetheless reluctantly decided not to run for governor of California.


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