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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,
Spartacus (www):
But what about cable? Are they 'licensees' under the statute? Becuase A&E runs A LOT more L&O than NBC. And there are also plenty of pre-2002 epsodes before Thompson stated as DA Branch, so NBC can go back to those.
7.19.2007 4:03pm
Dilan Esper (mail) (www):
I especially like the Pat Paulsen case. Apparently the FCC is charged with protecting us from the corruption that comes from joke candidates who appear on television to further the joke.

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.
7.19.2007 4:06pm
Bill Poser (mail) (www):
Is this a "taking", for which the government must compensate NBC?
7.19.2007 4:08pm
George Lyon (mail):
Cable systems are not licensees under the statute. The statute applies only to FCC licensed stations.
7.19.2007 4:11pm
NickM (mail) (www):
I'm not sure the statutory language covers repeats of previously aired programming - it's hard to say he's using the broadcast station. After all, when old TV shows and movies are re-aired, are all the actors who have since died using the station?

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
7.19.2007 4:17pm
uh clem (mail):
Well, they banned "Bedtime for Bonzo" in 1980. Shame, that was.
7.19.2007 4:33pm
xx (mail):
Prof. Volokh: How does the statute define "use?" It doesn't strike me that the Law &Order franchise selling NBC rights to air their episodes is a "use" by Fred Thompson.
7.19.2007 4:39pm
Zathras (mail):
This issue is not at all clear to me. If Thompson is in an episode that airs, is he really a candidate that is being permitted "to use a broadcasting station?" "Use" is a very vague word that may or may not apply to the current situation.
7.19.2007 4:42pm
Anon1234:
EV - I'm sure everyone understands this, but the title of your post would be more accurate if it specified that the question is whether NBC must stop running "episodes of L&O featuring Fred Thompson," and not the entire show... particularly as NBC intends to air new episodes without him in the upcoming season. [Corrected this, thanks! -EV]

IMDB suggests that he has appeared in 115 of the 392 episodes aired so far, BTW.
7.19.2007 4:52pm
ras (mail):
But Thompson is not the one using the station; L&O is. He merely once worked for L&O.

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!"
7.19.2007 5:00pm
pmorem (mail):
Many radio stations (KCBS, SF) continued to carry Dave Ross' radio show even has he was running for Congress.

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.
7.19.2007 5:02pm
Mark P. (mail):
I'm with the posters above who question a broad interpretation of "use" in the statute. I notice that the only court cited for a broad interpretation of "use" is the Ninth Circuit. No offense to anyone, but is a Ninth Circuit decision still considered precedential? [The Ninth Circuit was not, I think, thought of as particular out of the mainstream in 1974 (nor is it quite right to think of it this way today). I've also added a cite to a related D.C. Circuit opinion that reaches the same result in a closely related area. -EV]
7.19.2007 5:19pm
Jay D:
What if they pixelated his head?
7.19.2007 5:25pm
RPS (mail):
Hmmm...I wonder if shows that were "ripped from the headlines" could quality for an exception under (3).
7.19.2007 5:25pm
PatHMV (mail) (www):
What a cockamamie rule.

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.
7.19.2007 5:27pm
Brian G (mail) (www):
So, shouldn't the Wizard of Oz be banned until Hillary's candidacy is over?
7.19.2007 5:31pm
aces:
What if they pixelated his head?

Or they could have someone else dub his voice, as the BBC once did for video clips of IRA leader Gerry Adams....
7.19.2007 5:35pm
TyWebb:
Brian G:

So, shouldn't the Wizard of Oz be banned until Hillary's candidacy is over?

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.
7.19.2007 5:39pm
ras (mail):
Can't they just run a disclaimer, similar to what judges tell juries: i.e. "voters will disregard any impression made by the candidate."

I mean, if it's good enough for a trial, then why not here as well?
7.19.2007 5:41pm
Thorley Winston (mail) (www):
IMDB suggests that he has appeared in 115 of the 392 episodes aired so far, BTW.


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?
7.19.2007 5:43pm
lonetown (mail):
I like the way folks have to dance around..i.e. "no offence to anyone but is the ninth circuit still precedential".

Bad laws, politicized judges and weak interpretations, yep we have the bestus system in the world.

Suppose his role is the village idiot?
7.19.2007 5:48pm
Elliot123 (mail):
"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."

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?)
7.19.2007 6:01pm
ras (mail):
There might be another hair to split:


"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"


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.
7.19.2007 6:09pm
Ex-Fed (mail):
I like the sugestion that giving other candidates "equal opportunities" simply means letting them line-read Fred's lines from the episodes in question.
7.19.2007 6:24pm
PDXLawyer (mail):
Unfortunately, the "use" line is hard to draw. Banning "Law &Order" or "Bedtime for Bonzo" seems silly. On the other hand, Al Gore has made a career of making pieces which have a heavy political content. If he ran for office again, airing his latest works would surely amount to political advertising. I can't think of a workable way to draw the line here.

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.
7.19.2007 6:25pm
xx (mail):
The real way to get around the problem is to have the dems give Sam Waterston the nomination, then the general election will have built-in equal opportunity.
7.19.2007 6:27pm
Adam White:
This is FANTASTIC news. Now maybe TNT will start running episodes from the days when L&) was a compelling show. More Ben Stone &Paul Robinnette, please!
7.19.2007 6:27pm
TruePath (mail) (www):
I don't see how this can possibly be constitutional. Surely *some* provision of the constitution prevents the government from retaliating against candidates for office. For instance if congress felt threatened by doctors running for president they couldn't pass a law revoking the medical license of anyone running for office could they? If not how is it any different to restrict the ability of actors to practice their craft?
7.19.2007 6:32pm
xx (mail):
adam - wouldn't solve the problem. Or haven't you noticed that Ben Stone looks like Tom Tancredo?
7.19.2007 6:32pm
wooga:
I think PDXLawyer makes good point. Although I thought they should keep the L&O episodes running, I can see how a clever candidate and station owner could tape a bunch of thinly disguised political commercials, and then rerun them constantly as free ads for the candidate.

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.
7.19.2007 6:36pm
ras (mail):
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.

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.
7.19.2007 6:39pm
TerrencePhilip:
No doubt it would violate the statute.

But would the statute withstand a First Amendment challenge?
7.19.2007 6:41pm
Deoxy (mail):
On the other hand, Al Gore has made a career of making pieces which have a heavy political content. If he ran for office again, airing his latest works would surely amount to political advertising. I can't think of a workable way to draw the line here.

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).
7.19.2007 6:42pm
ras (mail):
And then we are subjected to a marathon of that episode.

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.
7.19.2007 6:43pm
Duffy Pratt (mail):
It might not survive a First Amendment challenge. The irony, of course, would be that the first amendment protects the shows because they are NOT political. Everyone knows that the founders adopted the first amendment to protect entertainment and whacking material, but not to protect politically charged speech. (Just like the founders first thought when adopting the second amendment was to advance the noble cause of collecting hunting trophies.)
7.19.2007 6:49pm
Dave N (mail):
I think the rule is asinine, though probably Constitutional. It is just another example of the federal government thinking we are all drooling idiots--as if a broadcast of Bedtime for Bonzo would somehow be an affront to the very nature of our democratic republic.

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.
7.19.2007 7:05pm
Zathras (mail):
If forbidding the airing of the L&O episodes is unconstitutional, you fall back on the canon of statutory interpretation that a statute is interpreted in a reasonable way that it does not run afoul of the Constitution. The statute is vague enough to be read in such a way.
7.19.2007 7:18pm
TerrencePhilip:
Zathras, "he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station" could be construed to mean that the licensee could say "ok candidate B, show us your fictional TV series and if it meets our standards of quality and ratings viability, we will show it as well as Fred Thompson's"?
7.19.2007 7:27pm
ras (mail):
Kinda interesting, and tangentially related, is that this very post of today, July 19th, 2007, is already #7 (i.e. it's in the top 10 results) for anyone googling "paulsen v fcc". That was quick!
7.19.2007 7:30pm
KeithK (mail):
In my mind the statute is quite clearly unconstitutional based on a first principles look at the First Amendment. But based on modern jurisprudence it would probably withstand challenge. Plus it's unlikely that a major broadcast network would take the risk of challenging. It's not like NBC would gain much by having the law overturned.

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.
7.19.2007 7:44pm
M. Simon (mail) (www):
clem says:

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.
7.19.2007 7:48pm
Laura S. (www):
This is a poorly written law. The is a clear flaw in assuming that the law spells out all of the exemptions. It clearly depends on a fact finder to determine what constitutes USE outside of the exceptions.

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.
7.19.2007 7:51pm
Zathras (mail):
Terence, the term "use" could be construed to exclude the L&O episodes. It's pretty simple, actually.
7.19.2007 8:12pm
Thomas_Holsinger:
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.
7.19.2007 8:19pm
plunge (mail):
The real question is whether Thompson's political career can survive his firing of that hot blonde lesbian.
7.19.2007 8:28pm
tarheel:
I am somewhat amused by the confident comments that this law is unconstitutional. It's simple -- the First Amendment only loosely applies to broadcast television and radio, and until Red Lion and Pacifica are overturned it shall remain so. My personal view is that they are relics, but until I get my nomination that view doesn't matter. On this particular controversy, I think it is safe to say that TNT will be running enough L&O to keep us going. And until Randy or Paula runs for president (Simon can't), no network is going to put up a fight about this.
7.19.2007 9:14pm
Rich Rostrom (mail):
Rudy Giuliani appeared in one L&O episode - as himself. (He came to the office with new DA Nora Lewin (Dianne Wiest) to "show her around".) Has that one been withdrawn?

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?
7.19.2007 9:30pm
Zathras (mail):
BTW, a trivia question: what is the only movie to feature two future governors?

Batman and Robin with Schwarzenegger and Ventura.
7.19.2007 9:42pm
Thorley Winston (mail) (www):

BTW, a trivia question: what is the only movie to feature two future governors?


There's been at least three: Running Man, Predator, and Batman and Robin.
7.19.2007 9:43pm
David Schwartz (mail):
This does not stop anyone from airing L&O episodes with Fred Thompson in them while he is running for President unless they specifically do so to promote him. If they are running the episodes because they would do so anyway and they just happen to contain Fred Thompson, then they have already extended the same opportunities to every other candidate.

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.
7.19.2007 9:53pm
amliebsch:
BTW, a trivia question: what is the only movie to feature two future governors?

Would that be Predator, featuring both a ripping Arnold Schwarzenegger and a chewin', cussin', Jesse "The Body" Ventura?
7.19.2007 9:57pm
Eugene Volokh (www):
David Schwartz: The trouble is that the FCC has interpreted the statute quite differently than you have, with no broadcaster purpose requirement.
7.19.2007 10:49pm
Dave N (mail):
Now for a more difficult movie trivia question:

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)?
7.19.2007 11:15pm
Thorley Winston (mail) (www):

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
7.19.2007 11:36pm
Dave N (mail):
Very good Thorley--you are right. And I may have been wrong in saying 2 movies.
7.19.2007 11:49pm
Fub:
Dave N wrote at 7.19.2007 10:15pm:
What future Governor and what future United States Senator starred in at least 2 movies together
One movie was This is the Army, 1943, Lt. Ronald Reagan &George Murphy.

Murphy was also in Little Miss Broadway (1938) with future UN Delegate, Ambassador to China, and Chief of Protocol, Shirley Temple Black.
7.20.2007 12:13am
Dave N (mail):
According to the IMBN database, George Murphy was also in a movie with Nancy Reagan (known professionally as Nancy Davis): Talk About a Stranger (in 1952).
7.20.2007 2:18am
Dave N (mail):
IMDb--not IMBN. And on careful review, Ronald Reagan and George Murphy were only in one movie together, though they teamed up in the 1950s for an album called: "Communist Infiltration of Hollywood in the 1940s."

My apologies for a misleading trivia question.
7.20.2007 2:33am
Ed:
Assuming that Thompson wins the republican nomination.

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.
7.20.2007 10:23am
David Schwartz (mail):
I am not arguing for a broadcaster purpose requirement. I am simply arguing that NBC would be providing the same opportunity to all candidates if it opted not to suppress any shows that contain a candidate. That provides all candidates precisely the same opportunity to use the station.

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.
7.20.2007 7:32pm