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Enter Thompson, Exit "Law & Order"?

Speculation is increasing that former Republican Senator Fred Thompson will enter the presidential race. Some think his name recognition and star quality could vault him into the top tier of presidential contenders. He also has the support of many intelligent conservatives in the blogosphere, such as Professor Bainbridge.

One potential consequence of a Thompson campaign could be the blackout of "Law & Order" episodes in which Thompson appears. As the Washington Post reports:

Federal campaign law requires broadcasters to give all candidates equal time on the airwaves. That rule applies to entertainment programs like "Law & Order," meaning stations which run the show would be required to give other GOP candidates a like amount of prime time television exposure.

With as many as a dozen or more Republican candidates competing for the nomination, that would be prohibitively expensive.

"As a practical matter, [the television stations] would in all likelihood have to pull all of the Fred Thompson shows for the duration of his candidacy," said Andrew Jay Schwartzman, president of the Media Access Project.

This could be a big deal for cable networks such as TNT that broadcast several "Law & Order" episodes every day.

An interesting twist, however, is that the FCC's "equal time" provisions have never been applied to cable networks, though cable networks typically comply "voluntarily." This leads the Post story to speculate whether a Thompson campaign could provoke a legal challenge to the application of the rule to entertainment programming on cable TV.

Jeek:
One potential consequence of a Thompson campaign could be the blackout of "Law &Order" episodes in which Thompson appears.

If that is the actual intent of the law, then the law is truly a ass.
3.30.2007 3:45pm
RJL (mail):
The best thing that could possibly happen to Thompson is that they give Hillary Clinton equal time and play her campaign screetches over, and over, and over, and over....
3.30.2007 3:47pm
rarango (mail):
What Jeek said; would the law also require that no cable TV show could air, say, interviews with Rudy G following 9/11? How would the law treat historical events like that? (layperson question)
3.30.2007 3:48pm
anonVCfan:
The writers could get to work writing episodes featuring the other candidates. If the roles are offered and refused, have the networks complied with the law? Because Thompson's appearances weren't exactly on his own terms.

Hillary Clinton could be written in as an evil cyborg. Most of the show could be about clues pointing to her, but the police being confused when the DNA testing is inconclusive. Then, in the last 5 minutes, it's revealed that she's an evil cyborg.

Barack Obama could be written in as a rookie police officer who's really idealistic and naive and gets beaten up by a suspect in the first 10 minutes.

John Edwards could be written in as a deranged, confused malpractice plaintiffs' lawyer who keeps appearing at strange points in the show to, e.g. chase ambulances, call up the police to ask for evidence for his malpractice case, stick his head into the screen during crime scene sweeps to say "do you think there was negligence here"?

Fred Thompson didn't get to give campaign speeches or veto the decisions of the writers, and neither should the others.

This is, of course, in the spirit of truly "equal" time.
3.30.2007 3:58pm
calmom:
Does this law also apply to news broadcasts? They never give equal time to the lower tier candidates.
3.30.2007 3:59pm
Brett Bellmore:

With as many as a dozen or more Republican candidates competing for the nomination, that would be prohibitively expensive.


Couldn't they go the cheap route, and just pack 'em all into a single "reality show"?

I'm with anonVCfan, though: Thompson wasn't giving campaign speeches, he was acting in a TV series, spouting lines somebody else wrote for him. Ofer the other candidates appearances on the exact same terms, and if they refuse, the obligation has been met.
3.30.2007 4:03pm
zooba:
calmom:
No, most news programs are specifically exempted. See 47 USC 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 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 chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. "

The only real question, other than the cable / satellite issue, is whether having someone act in a program counts as "permit[ting that] person who is a legally qualified candidate for any public office to use a broadcasting station." (emphasis added).

Is there any precedent from Regan? Or were there no Regan movies shown on TV by that time?
3.30.2007 4:11pm
zooba:
Oh wait, the statute doesn't distinguish between federal and state offices except wrt compensation. So there should have been some precedent wrt Arnold Schwarzenegger (his movies are on TNT et. al. all the time).
3.30.2007 4:13pm
BRL:
Didn't this, or a similar state law come, into play when Schwarzenegger was running for governor? While I don't live in California anymore, I remember there being some talk about how his movies couldn't be on television during the campaign.
3.30.2007 4:13pm
Just an Observer:
During Reagan's time, did this rule apply to airings of Santa Fe Trail, Bedtime for Bonzo and Knute Rockne, All American?

If my distant memory serves, broadcasters did voluntarily hold off on such programming during campaigns. I could be wrong.
3.30.2007 4:13pm
Anon Y. Mous:
This leads the Post story to speculate whether a Thompson campaign could provoke a legal challenge to the application of the rule to entertainment programming on cable tv.

Not in the article that you link to. Perhaps they dialed back their speculation, as all they mention now is programming over the airwaves.

In any event, it's hard to see how those restrictions on speech could apply to cable tv. The only way congress has gotten away with violating the first amendment with over-the-airwaves programming is with the figleaf that the airwaves are a limited resource belonging to the public; one that has to be regulated, lest it turn into a free-for-all with everyone drowning each other out. It's hard to see how they could make that argument about cable tv.
3.30.2007 4:14pm
Spartacus (www):
I'm pretty sure I recall watching Terminator III on TV during the Calif. recall capaign.
3.30.2007 4:16pm
Spartacus (www):
On second thought, I think those were ads for T3 coming our in theatres.
3.30.2007 4:17pm
Shake-N-Bake:
I have no problem with this -- it means I won't have to deal with TNT always running the crappy Briscoe-less recent episodes.
3.30.2007 4:19pm
Craig Oren (mail):
I have a clear recollection that movies with Ronald Reagan were not shown on TV in the 1980 campaign. My impression at the time was that this was required, but perhaps it was volluntary with respect to cable and over-the-air transmissions (older folks will remember how, before cable, you installed an HBO box in your house to receive the signal.)
3.30.2007 4:19pm
Ramza:
Don't take law and order off cable tv temporarly, its one of the few decent shows you can see on day time cable.
3.30.2007 4:21pm
zooba:
Here's some good articles on this:
San Diego Union-Tribune
LA Times

Looks like the L&O episodes will likely be banned from NBC, but not TNT et. al.
3.30.2007 4:27pm
BobNSF (mail):
DOINK, DOINK
3.30.2007 4:29pm
Michael B (mail):
Thompson, after merely mentioning he might be interested, went to 12% in one of the polls. Though Alana De La Garza will always have my vote.
3.30.2007 4:43pm
JLR (mail):
The real issue is not for TNT, but rather for NBC. TNT could easily comply "voluntarily" if it so chooses because TNT has syndication rights for every episode of Law and Order that does not have Fred Thompson in it. Since Fred Thompson joined the cast in season 13, it still would have the episodes from the first 12 seasons to air.

NBC, on the other hand, does not have rights to reair any Law and Order episode it wants, due to the nature of the syndication agreement. It would be restricted to more recent episodes, all of which include Fred Thompson. NBC in the summer (as well as on Saturday nights all year round) relies a great deal on Law and Order reruns -- it would have to put more weight on the SVU and Criminal Intent franchises to pick up the rerun slack.
3.30.2007 4:45pm
Benito (mail) (www):
This was an issue years ago when he was running for Senate here in Tennessee. One of the broadcast networks ran "The Hunt for Red October" (in which Thompson has a tiny role), and the other candidate complained to the local affiliates and got allocated time equal to Thompson's appearance in the movie.
3.30.2007 4:48pm
elChato (mail):
has the validity of this law ever been tested in court?
3.30.2007 5:08pm
Wombat:
Am I the only one that remembers a similar situation with Al Gore? He appeared, albeit in animated form, in an episode of Futurama, as himself, the sitting Vice President of the United States, when he was the Democratic Nominee (his daughter was a writer for the show).

Since I never heard anything more about it, I can only assume that the Bush folks realized that an animated bit about Gore teaming up with Stephen Hawking, the guy who invented Dungeons &Dragons, and Uhura from Star Trek, as defenders of the space-time continuum, wasn't an actual political appearance. How times have changed.

P.S. "I've got a tenth level vice-president!"
3.30.2007 5:10pm
wt (www):
Didn't Al Sharpton host SNL while he was running for the Democratic nomination in 2003 or 2004? Some stations didn't air it but most did.

I'm not sure how NBC got away with it but there's at least some modern trend away from a hard and fast rule.
3.30.2007 5:14pm
Bemac (mail):
It's a painfully dumb rule. If other candidates demanded equal time, I'd give it to them, but I'd require them to read Thompson's lines verbatim from the script. After all, that's what Thompson was doing, and we want to be fair.
3.30.2007 5:42pm
TaxLawyer:
This would be fantastic. Then maybe we could see some of the Noth-Orbach-Hennessy episodes from the show's glory years, or even some of the really early epis with Dzundza and Sorvino in what became Orbach's role.
3.30.2007 5:44pm
csl:
This reading of the law is probably accurate with how it is enforced... I do remember once reading a profile of George Takei (Lt. Sulu on the original Star Trek), who spoke of campaigning for Los Angeles city offices, and Star Trek reruns counted against his time on television.
3.30.2007 5:52pm
Just an Observer:
Then maybe we could see some of the Noth-Orbach-Hennessy episodes from the show's glory years ...

But then, surely opponents of Rep. Adam Schiff, D-CA, will want equal time.
3.30.2007 5:58pm
Saxton:
Shoot! Now I'll miss my favorite Law &Order episode!

It's the one where two people discover a dead body at the beginning of the episode. Then one of the cops says something sarcastic just before the opening credits roll. The cops initially suspect someone, but they wind up arresting someone else. Then the case goes to trial, but there's a dramatic twist at the end of the episode!

Has anyone else seen this episode?
3.30.2007 6:02pm
Blue:
This seems to me to be puzzling interpretation of the law.

It's not as if the candidate has any control over whether a network chooses to use its intellectual property in a televised broadcast. What's to stop a network with a political agenda to, say, find particularly embarassing programs with a candidate, run them over and over again, and allow the other candidates to access free air time?
3.30.2007 6:37pm
Shake-N-Bake:
This would be much funnier if Arthur Branch was a big time Democrat on the show -- removing the epidsodes would probably help Thompson then.

As it stands though, my guess is Thompson doesn't have views a whole lot different than the expressed views of Arthur Branch.

This would screw up SVU as well -- Branch shows up on there a fair amount as well from what I've seen (I don't watch any of the L&O's religiously anymore).
3.30.2007 6:43pm
Hattio (mail):
Saxton, That doesn't sound like ANY of the episodes I've seen. You sure that wasn't a CSI episode?
3.30.2007 7:00pm
Joel:
This business will get out of control. It will get out of control and we'll be lucky to live through it!
3.30.2007 7:12pm
Andrew Okun:
The news exemption is noble in intent but makes the whole exercise a joke. During a campaign, a TV station or radio station can't simply give airtime to one campaign, but it can run a Hannity show for three hours running, or some local equivalent, which is much the same thing. During the run-up to an election, we have radio stations here in LA that are 24-hour Republican infomercials.

I mean it as an only slightly partisan reflection; my side would do it to, if we had the dedicated AM stations to do it with. I don't watch a lot of TV news so I can't tell ... maybe there are some liberal hosts out there doing the same thing but I don't get exposed to them.

The most egregious example I recall was on the Michael Savage show during the Bush-Kerry run-off. He leads in with something like, "the Bush campaign came out with a new ad today ... it's pretty interesting ... I'd like to play it for you." Plays the ad. "I think that was pretty good." Not even a cursory, "does someone out there disagree with me?" I can't imagine a way of doing anything about it, but it really makes the "Law and Order" episode thing kind of a joke.
3.30.2007 7:20pm
KeithK (mail):

It's not as if the candidate has any control over whether a network chooses to use its intellectual property in a televised broadcast. What's to stop a network with a political agenda to, say, find particularly embarassing programs with a candidate, run them over and over again, and allow the other candidates to access free air time?

Imagine if Thompson were running in the general election and the network execs wanted to support his opponent. By this reading of the law the execs could run L&O to provide Thompson air time and then allow "equal time" for speeches/commercials by his opponent.

I'm not saying that this would happen. Just saying that it's plausible under a reading of the law where a TV show counts against a candidates "equal time".
3.30.2007 7:27pm
Andrew Okun:
This seems to me to be puzzling interpretation of the law.

It's not as if the candidate has any control over whether a network chooses to use its intellectual property in a televised broadcast. What's to stop a network with a political agenda to, say, find particularly embarassing programs with a candidate, run them over and over again, and allow the other candidates to access free air time?


During our California recall election, I thought they should play and replay the scene from Terminator III where Arnie strides across a nighttime street stark naked, seen from the rear, to snatch some clothes from a night club. Voiceover like "California's got problems and the government isn't doing anything about it. Who can we look to for help?" Long pause while he comes into the frame. "Hmmm ... any other ideas?" Nobody took the idea up, though.

More seriously, I think the intent of the law is not to limit what the candidate does to try to get elected ... The candidate can get as much airtime as he likes to himself, if he pays for it. It is to limit the ability of broadcast owners to influence elections without coming under campaign limitations by simply guaranteeing that candidates have equal access based on whatever terms the broadcasters are offering. Can't have "$10,000 a minute Republicans; $1 million a minute Democrats." Or in the case of law and order, "Free for our pal Fred; pay big if you're his opponent."
3.30.2007 7:28pm
KeithK (mail):

I mean it as an only slightly partisan reflection; my side would do it to, if we had the dedicated AM stations to do it with. I don't watch a lot of TV news so I can't tell ... maybe there are some liberal hosts out there doing the same thing but I don't get exposed to them.

Air America was just as blatantly partisan as Hannity. The only difference is that few people tuned in to listen. If there were a big market for left talk radio I think there would be plenty of air time for it.

I don't see anymore problem with partisan political commentary on TV or radio. With the large number of choices these days it's not like anyone is forcing you to watch a particular partisan show. (It doesn't bother me in terms of fairness. Whether it improves political discourse is a different question.)
3.30.2007 7:33pm
kimsch (mail) (www):
KeithK said:

Imagine if Thompson were running in the general election and the network execs wanted to support his opponent. By this reading of the law the execs could run L&O to provide Thompson air time and then allow "equal time" for speeches/commercials by his opponent.

I'm not saying that this would happen. Just saying that it's plausible under a reading of the law where a TV show counts against a candidates "equal time".



I agree. You can't count entertainment even if on a broadcast channel against a candidate. The candidate was on TV (and in reruns) as a part of his or her job (actor / actress) not as a candidate for office. Did they have to suspend Love Boat reruns when Fred Gandy ran for office? The Sonny and Cher show when Sonny Bono ran for office?
3.30.2007 8:01pm
William Tanksley (mail):
I don't think that this law (unarguably) applies. The law states that anyone that "permits... a candidate for any public office to use a broadcasting station..." It could be argued that Thompson, although a candidate, is not being permitted to use the station; the station is being used _by_ the producers of L&O without any intervention by Thompson.

Now, if Thompson were to request that one of the episodes were aired, granting that request would be permitting him to use the station.

I don't know... It's an argument, not an airtight case.
3.30.2007 8:20pm
wooga:
anonVCfan, thank you. Your comment was a great way to start my weekend!
3.30.2007 9:23pm
Dave N (mail):
I think the bigger obsticles for Fred Thompson is the fact that he earns six figures for every episode of L&O AND he just signed another contract to be the permanent substitute (and perhaps replacement) for Paul Harvey.

Unfortunately for him, he would have to give all that up for an iffy run for President. I don't think he will do that
3.30.2007 11:13pm
SimonD (www):
I share the question of at least three commenters above: how realistic is it to describe an actor appearing in a fictional television show over whose script and distribution he has little or no control (we're not talking about a situation like Alan Alda in the last few seasons of MASH here: Thompson is "just" an actor on the show, so far as I know) as "us[ing] a broadcasting station," and has any court ever applied it that way?
3.30.2007 11:33pm
Baseballhead (mail):
Sam Waterston better not run for anything. I need my L&O fix.
3.30.2007 11:33pm
Ship Erect (mail) (www):
AND he just signed another contract to be the permanent substitute (and perhaps replacement) for Paul Harvey.

Wow, does Thompson do that bizarre "Page two!" thing, too?
3.31.2007 12:35am
Alan K. Henderson (mail) (www):
Maybe they could CGI someone else into Thompson's "Law and Order" role during election season.
3.31.2007 12:44am
Brian G (mail) (www):
I agree with the guy above. Just count out how many minutes he appears in the episode that night. (I'm going to count next time I watch, and I'll bet it'll be no more than two tot hree minutes an episode). Then, just play Hillary's "we're going to take away things from you for the common good" speech for an equal length of time.

Side note: Thompson runs, he wins. And I think many people know it. I wish I were in the opposition research business right now. A lot of money to be made.
3.31.2007 1:19am
Brian G (mail) (www):
Joel: Great quote. I just popped The Hunt for Red October in my DVD because of it.

And Ship Erect, yes he does that Page 2 thing. I hear Mr. Thompson every day.

I do miss Paul Harvey doing it because of the last story he does every day, "For what it's worth." I am still laughing at the story Mr. Harvey told of how the Carrie Nation statue was destroyed by a runaway beer truck. (Nation was a big-time member of the temperance movement)
3.31.2007 1:35am
Kevin Murphy:
When Schwarzenegger announced his candidacy on the Leno show, the other 100 recall candidates complained. Leno gave them "equal time" all right -- in the audience. Only a few were heard or identified. So, this law is honored in the breach when it suits NBC. Why should they act differently now?

The movie "The Right Stuff" came out when John Glenn was running for President. The movie clearly told younger voters why people thought Glenn was a hero. But that's not TV so it doesn't count? What is the rational basis again?

One could argue that the rule affects certain professions, especially actors, creating a barrier to political candidacy. Surely if a rule tended to make it difficult for, say, lawyers to run it would be deemed unconstitutional before the ink was dry.
3.31.2007 2:10am
logicnazi (mail) (www):
Alright so let's try and interpret this law. Consider the start of the passage zooba posted (also here).


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.


Now I have to admit I'm a bit confused about what's going on with the whole colon thing. However, it seems clear that congress could have easily used the word 'appear' instead of 'use' in the first sentence. Now it seems clear this choice was partially motivated by a desire to capture others sorts of use besides mere appearances but then why not use the word 'mention' or phrase this in a way that doesn't seem to require intentional direction? The word use seems carefully chosen to indicate purposeful control.

On it's own this point might be dismissed as mere legislative sloppiness but consider the examples given by the above commentators. By interpreting 'use' to mean every appearance not in a news show one creates a mile wide loophole in the law. Broadcasters could just show old movies with one candidate in it while letting the other candidate use their 'equal time' to advocate their views.

So in one interpretation we must assume that congress intended 'use' to cover any appearance not specifically exempted despite the tension with the common language understanding of 'use' as requiring some purpose or intent by the one using. We must also assume that they were too dumb to see the obvious loopholes the above commenters saw immediately thus undermining the obvious public policy objectives. While on the other we take congress to have intelligently picked the word 'use' in it's common language use and given a sensible law.

Maybe there is some FCC regulation interpreting the law that gets deference or some other reason not to use the obviously better interpretation but I don't know what it is.
3.31.2007 2:58am
Brett Bellmore:
Well, such are the insanities you get, when the government is permitted to do what it's explictly forbidden to do, infringe on freedom of speech. We wouldn't be having this discussion in the first place if the federal government were following the Constitution. Why not expect things to get a bit confusing once you've abandoned the rule of law?
3.31.2007 8:33am
markm (mail):
No one has referred to this clause yet:

Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section.

Broadcasters definitely do have the power of censorship over regular programming such as L&O, so does this mean that the section does not apply.
3.31.2007 12:36pm
Casper:
If I am remembering correctly, when Thompson ran for senator in TN, his opponent claimed that such movies as "Days of Thunder" and "Hunt for Red October" should count as advertising time. If I am still remembering correctly (and that's a big if), it was either thrown out of court or withdrawn.

Does anyone remember and/or have a citation?
3.31.2007 1:38pm
Winefred-Marine Mom (mail) (www):
This whole business is a curious question. How does the law apply to appearances on Letterman, Leno, Saturday Night Live, etc.? I'm trying to remember when people like McCain made these appearances-- but it's all a blur.
3.31.2007 3:15pm
SimonD (www):
Casper - I believe it was decided that since Days of Thunder was so atrociously awful as to count as advertising time for Thompson's opponent, it was acceptable to show both DoT and HFRO back-to-back.
3.31.2007 7:38pm
gasman (mail):

By interpreting 'use' to mean every appearance not in a news show one creates a mile wide loophole in the law.

Are you saying that broadcasts of Bedtime for Bonzo swept Reagan into the White House?
4.1.2007 12:40pm
Bob K (mail) (www):
Andrew Okum, in noting broadcast activities legally exempted at campaign time, exposes the whole FEC rule to a ridicule that is richly deserved whenever government tries to force free speech to be "fair" speech.
4.1.2007 1:55pm
Houston Lawyer:
A bigger question is whether Hillary will become a permanent character on South Park.

Is there a movie where Thompson plays the president? He could always do commercials "I'm not the president, but I play him on TV".
4.2.2007 11:55am
Malvolio:
Is there a movie where Thompson plays the president?
He played Andrew Jackson in a short called Rachel and Andrew Jackson and a fictional president in something called Last Best Chance . But he was never CinC in a Hollywood release.
4.2.2007 3:20pm