pageok
pageok
pageok
"No Political Candidacy" Clauses for Actors?

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:

(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].

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.

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 ....

(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]....

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."

If anyone knows more about this issue, please post about it in the comments.

wm13:
I don't know much about the First Amendment, but I do know that actors are normally hired as employees, not independent contractors. There are a number of cases dealing with unemployment benefits, income tax issues etc. which make this clear.
5.4.2007 5:45pm
George Lyon (mail):
EV, the problem is the following statute, 47 U.S.C.
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.
5.4.2007 6:03pm
Steve:
The problem with the statutes is that we're not talking about a condition on employment, we're talking about a restrictive covenant that applies after the employment terminates, with the intent of stopping the former employee from doing something that would impair the value of the product he created during his employment.

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.
5.4.2007 6:14pm
cirby (mail):
What's really, really funny about the LATimes and Thompson?

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.
5.4.2007 6:45pm
Jeremy T:
There's only a material conflict if Law and Order reruns can't be shown during Thompson's candidacy. Obviously they can. Any law that purports to require to the contrary is patently unconstitutional.
5.4.2007 7:22pm
zooba:
I don't think they really "legally mandate that an employee's work product no longer be salable," otherwise wouldn't the FCC act / regulations be a regulatory taking?
5.4.2007 7:22pm
Fub:
George Lyon wrote:
EV, the problem is the following statute, 47 U.S.C.
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: ...
This is implemented in the regs at 47 CFR 73.1941. The problem is that there is no exception provided for appearance in a drama unrelated to the candidacy. I don't know whether this is because the Congress never contemplated the possibility of a candidate's appearance in an unrelated drama. But I suspect that is the reason.

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.
5.4.2007 7:28pm
bellisaurius (mail):
Has the question been addressed as to why Thompson's L&O episodes are an issue for the network when he runs for president, but not when he runs for congress?
5.4.2007 7:52pm
tarheel:

Has the question been addressed as to why Thompson's L&O episodes are an issue for the network when he runs for president, but not when he runs for congress?

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.
5.4.2007 8:06pm
neurodoc:
What happened with re-runs of Ronald Reagan movies during his campaigns for the presidency?

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?
5.4.2007 8:07pm
Dave N (mail):
neurodoc--in addition to those you mentioned, there are a few others. Al Franken comes to mind--the guy that played Grandpa Munster (Al Lewis) has run as a fringe left-wing candidate for various offices. The Senator from California you mentioned was George Murphy, who hasn't been in the Senate since 1971. Congressman Heath Shuler of North Carolina played some pro football, so he might qualify.

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).
5.4.2007 9:21pm
Anonymo the Anonymous:
Is this a matter of settled law? Just seems silly to this non-lawyer when we're talking about a guy playing a fictional character in a fictional TV series wholly unrelated to the election.

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?
5.4.2007 9:21pm
Jeremy T:
Some very basic statutory (or regulatory) interpretation here gets rid of the spurious claims that a network would have to give "equal time" for persons in Thompson's position.

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.
5.4.2007 9:24pm
Can't find a good name:
Anonymo: I think that a broadcast of "Star Wars" would trigger the equal time requirement if James Earl Jones ran for office, but not David Prowse. 47 C.F.R. sec. 73.1941(b) says that "the term “use” means a candidate appearance (including by voice or picture) that is not exempt under paragraphs 73.1941 (a)(1) through (a)(4) of this section."

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.
5.4.2007 9:50pm
Blue (mail):
"Use" implies an active decision. Thompson does not own L&O nor can he make decisions about it being aired. I fail to see how the statute applies to him.

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.
5.4.2007 11:00pm
PatHMV (mail) (www):
Don't forget the guy who played "Cooter" on the Dukes of Hazzard. He was in Congress for a term or two... I think at about the same time as Gopher/Fred Gandy.
5.4.2007 11:19pm
Fub:
Jeremy T wrote at 5.4.2007 8:24pm:
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.
Blue wrote at 5.4.2007 10:00pm:
"Use" implies an active decision. Thompson does not own L&O nor can he make decisions about it being aired. I fail to see how the statute applies to him.
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:
§73.1941 Equal opportunities.

(a) General requirements. Except as otherwise indicated in § 73.1944, no station licensee is required to permit the use of its facilities by any legally qualified candidate for public office, but if any licensee shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other candidates for that office to use such facilities. Such licensee shall have no power of censorship over the material broadcast 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 broadcasting station. (section 315(a) of the Communications Act.)

(b) Uses. As used in this section and § 73.1942, the term ‘‘use’’ means a candidate appearance (including by voice or picture) that is not exempt under paragraphs 73.1941 (a)(1) through (a)(4) of this section.
5.4.2007 11:51pm
Fub:
Tired eyes. Above §1941 should read §73.1941, etc.
5.5.2007 12:01am
James B. (mail):
How many others might this have effected?

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.
5.5.2007 2:46am
LM (mail):
EV,

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.
5.5.2007 4:55am
Anonymouss (mail):
Not sure if this has been discussed before or not, but: how would this rule affect non-network broadcasts? Still regulated (and if so, how can they justify regulating that?).
5.5.2007 2:16pm
Bill Poser (mail) (www):
Is it clear that covenants restricting actors' running for office would be a problem only in those states whose statutes expressly restrict such covenants? I would think that such covenants would be good candidates for contract provisions contrary to public policy and therefore unenforceable.
5.5.2007 2:18pm
johnbragg (mail):
The easiest and best solution in this hypothetical would be to strike down McCain-Feingold as a First Amendment violation of both Thompson's and L&O's freedom of speech.
5.5.2007 3:35pm
Waldensian (mail):

I was watching Star Trek the Animated Series on DVD

Say it isn't so. One of the worst TV programs, animated or otherwise, in history.
5.6.2007 6:06pm