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Anti-Abortion Political AdsANTI-ABORTION POLITICAL ADS: BALANCING QUESTIONS
OF INDECENCY, CENSORSHIP, AND ACCESS
Political advertising enjoys unique privileges in American broadcasting.
Section 315 of the Communications Act of 1934 requires station
licensees to
provide equal opportunities to legally qualified candidates for public
office,1 meaning if a station permits one candidate to use its
facilities,
all other candidates for that office are entitled to equal time. Even
if a
station chooses to refuse all political ads, in some instances it cannot;
Section 312(a)(7) of the Act permits the Federal Communications
Commission
(FCC) to revoke a broadcast station license if the licensee fails to
provide "reasonable access" to a legally qualified federal candidate for
public office.2
The ultimate privilege, however, deals with content. Unlike other
advertising or programs, the content of political ads is not subject to
control by the individual stations. Section 315(a) states in part,
"that
such licensee shall have no power of censorship over the material
broadcast
under the provisions of this section."3
Perhaps the most controversial application of these two sections has been
the recent use of explicit pictures of aborted fetuses in the
television
ads of anti-abortion candidates throughout the country. The no
censorship
clause of Section 315 protected the content of these ads; the
candidates
were on the air because they were running for federal office and were
guaranteed access by Section 312(a)(7). The furor created by these spots
prompted some licensees to ask the FCC for the right to reject these
ads as
unacceptable, or limit the times of day when they must be aired. More
than two years after the first complaint was filed, the Commission
ruled in
September 1994 that neither the reasonable access law nor the no
censorship clause preclude licensees from channeling these ads to times
when children are less likely to be viewers.4
This paper will examine three aspects of the abortion ad controversy:
indecency and safe harbor, censorship of political broadcasting, and
reasonable access. It will explore the issues of law involved,
specifically the pertinent sections of the Communications Act of 1934, and
the court decisions and FCC rulings in the three areas. The position
will
be advanced that the Commission's 1994 Declaratory Ruling best serves
both
the public interest and the political process.
Basis for the study is provided by a review of the campaigns of the two
candidates whose use of the explicit anti-abortion spots put the
spotlight
on this entire issue, and who, as of March 1995, are the only
candidates to
have been victorious in a primary election campaign using these political
commercials--Michael Bailey of Indiana and Daniel Becker of Georgia.
The
paper also will challenge Bailey's charge that stations must be forced
to
air all television ads submitted by federal candidates.
Explicit Anti-Abortion Political Ads on Television
The use of explicit anti-abortion political spots became an issue three
years ago, thrust into the national spotlight by a person who had not
intended to be a candidate. Michael Bailey, a self-described born-again
Christian and pro-life activist from southern Indiana, planned to use
his
background in advertising to become the campaign manager for
candidates who
shared his conservative Christian views. However, as the filing deadline
approached for the 1992 Indiana primary, Bailey still was looking for
so
meone to run for Congress in Indiana's ninth district against 14-term
incumbent Lee Hamilton. So, Bailey decided to enter the race himself, as
a
candidate for the Republican nomination.5 Bailey knew exactly what type
of spots he wanted to run, and he also knew what the law would allow.
"And I was reading the law, the reasonable access law, that said if you
are a federal candidate and you run for high office in America, your
television ads, by law, cannot be censored. . . . And I went, 'Eureka,
praise God! There's a way to get the truth on television.'"6
That "truth" was pictures of aborted fetuses. Bailey originally planned
to photograph fetuses found in abortion clinic dumpsters, but settled
for
excerpts from a film, The Hard Truth, distributed by a company in
Cleveland.7 He created two spots for the primary campaign; the first,
"Choice A/B" began with the disclaimer: "Warning: The following
commercial
has been paid for by the Bailey for Life for Congress Committee and is not
suitable for small children." The spot, written by Bailey's wife, showed
two healthy babies (Choice A), then a picture of an aborted fetus
(Choice
B).8 Spot two, "Abortion is Evil," showed a number of aborted
fetuses.9
Bailey bought time in Indianapolis and Louisville (and later, Cincinnati
and Evansville) to reach the southeastern Indiana congressional
district.
Stations were reluctant to run his ads, but after consultations with
their
attorneys and the FCC, found they had no choice. One Louisville
general
manager editorialized against the commercials, announcing,"We find
them
awful. . . .";10 In Indianapolis, WISH-TV President and General Manager
Paul Karpowicz charged Bailey with "taking advantage of a system that
probably never anticipated anyone using it in this manner."11 Yet, on
the
day the Bailey ads first ran, the station devoted almost one-quarter
of its
early evening newscast to the controversy, including a live interview with
the candidate.12
In the May primary, Bailey won a surprisingly easy victory over a former
state auditor, capturing 59 percent of the vote, and winning all but
one of
the district's 21 counties.13 In preparation for the fall campaign
against incumbent Hamilton, Bailey produced two more commercials. The
first, "Life or Death," showed bloody body parts from dead fetuses; a
woman's voice was heard in the background saying, "It's my body. It's my
choice." The candidate closed the spot with, "Abortion is not a
matter of
choice. It is a matter of life and death."14
Bailey said the second spot, "Hitler," generated the strongest emotional
response of any of his 1992 ads.15 Black and white photos of dead
fetuses
were shown alongside photos of dead bodies from World War II German
death
camps. The spot ended with an announcer asking, "If the people
representing you in Washington don't respect human life, what can they
respect?"16
In the November election, Bailey lost to Hamilton by the same margin as
the Republican candidate in 1988 and 1990, 70 to 30 percent.17 On
election
night, however, Bailey vowed to return in 1994, and told reporters, "We've
got out a message that's never got out before. We're bringing, by God's
grace, Christian principles back to the political system."18
No station tried to use the courts to stop Michael Bailey, but that was
the route taken by a Georgia station in an attempt to stop candidate
Daniel
Becker. Becker, running for the 1992 Republican nomination for Congress
in Georgia's ninth district (north of Atlanta, bordering on
Tennessee),
modeled two ads after Bailey's, and began running them during 4th of
July
weekend telecasts of Atlanta Braves baseball games.19
In anticipation of Georgia's runoff election on August 11, the law firm of
Kaye, Scholer, Fierman, Hays & Handler, on behalf of unnamed broadcast
clients, asked the FCC to permit stations to refuse explicit
anti-abortion
spots because they were indecent. Attorney Irving Gastfreund wrote,
"Give
us the authority to decline these graphic depictions when there's a
reasonable risk of children being in the audience."20 Counsel for Gillett
Communications, owners of WAGA-TV5, Atlanta, also contacted the FCC
for
assistance, arguing that pictures of dead fetuses portrayed excretory
activity, and therefore, were indecent.21
The Commission turned down both requests. In a letter to the two law
firms, Mass Media Bureau Chief Roy Stewart stated it was not proper to
restrict the time periods in which the spots could be aired. His letter
went on to rule the content of the ads was not indecent. "Neither the
expulsion of fetal tissues nor fetuses themselves constitutes
'excrement.'"
22
However, the Bureau did note that in view of the interest previously shown
by the FCC and Congress in serving "the special needs of children,"
stations would be within their right to broadcast a disclaimer prior to a
spot the stations determined should not be viewed by children. The
suggested wording was, "The following political advertisement contains
scenes which may be disturbing to children. Viewer discretion is
advised."
23
Becker was victorious in the August primary; just before the general
election, he tried to buy time on WAGA to run a 30-minute program,
Abortion
in America: The Real Story. The time requested was late afternoon Sunday,
November 1, following the telecast of an Atlanta Falcons football game.
The station determined that the program contained footage that was
indecent, and offered Becker time after midnight. WAGA's concern was a
four-minute segment showing an actual abortion.24 Becker filed a
complaint
with the FCC; the station went to Federal District Court.
In the FCC's response to Becker, dated October 30, 1992, the Mass Media
Bureau cited an informal staff opinion from 1984 which held that the
law
prohibiting the broadcast of obscenity and indecency (Section 1464 of
the
U.S. Criminal Code) is an exception to Section 315 of the
Communications
Act. The Bureau wrote that it would not be unreasonable for WAGA "to
rely
on the informal staff opinion referred to above and conclude that
Section
312(a)(7) does not require it to air, outside the 'safe harbor,'
material
that it reasonably and in good faith believes is indecent."25
In Atlanta, District Court Judge Robert Hall also ruled that WAGA had the
right to move Becker's program to safe harbor after midnight. Hall
went
further in his decision, however, ruling the segment showing the
actual
abortion was in violation of Section 1464, and was indecent. He wrote,
"This portion of the videotape depicts these activities and materials
in a
manner which is patently offensive according to contemporary community
standards."26 Judge Hall specifically cited graphic depictions of
female
genitalia, and further concluded that images and words in the program
would
be understandable to children in the audience.
The court also took issue with the FCC for waiting until after Georgia's
runoff election to respond to the July letter from WAGA's attorneys.
Hall
noted, "Failure to rule in a timely fashion thwarts the whole purpose
behind the indecency prohibition: the protection of children."27
Becker appealed Hall's decision to the 11th Circuit Court of Appeals in
Atlanta. When that appeal was denied, he filed a petition for
extraordinary writ with Supreme Court Justice Anthony Kennedy, who has
jurisdiction over the 11th Circuit. Kennedy denied Becker's petition on
November 1;28 the candidate declined to purchase time for his program
in
the safe harbor period. In the general election two days later,
Becker
lost to Democrat Nathan Deal by a margin of 59 to 41 percent.29
Over the next two years, candidates in at least fifteen other states aired
explicit anti-abortion ads.30 In 1993, Bailey was manager for an Ohio
congressional candidate who campaigned against both abortion and
homosexuality. The next year, Bailey returned as a candidate for Congress
in Indiana's Republican primary. This time, two stations fought his
attem
pt to use a particular ad that featured children singing in a cemetery
contrasted with pictures of aborted fetuses. WHAS-TV, Louisville,
restricted the spot to after 8:00 p.m.31; WTHR-TV, Indianapolis, rejected
the ad as offensive. After consulting with Washington counsel,
however,
WTHR accepted the ad, but aired it only after 8:00 p.m.32 In the May
primary, Bailey lost to a state senator, 56 to 36 percent;33 he claims the
stations' decisions cost him campaign donations and possibly the
election.
34
The Issue of Indecency in Broadcasting
The principal law dealing with broadcast indecency is Section 1464, Title
18, of the U.S. Code, which reads: "Whoever utters any obscene,
indecent,
or profane language by means of radio communication shall be fined not
more
than $10,000 or imprisoned not more than two years, or both."35 Section
312(a)(6) of the Communications Act provides for revocation of a
broadcast
license for violation of Section 1464.36
While the FCC did make two attempts in the early 1970s to confront
broadcast indecency, the case which established an actual definition was
FCC v. Pacifica Foundation in 1978. In this case, the Supreme Court
ruled
the Commission has authority to regulate a broadcast that is indecent,
but
not obscene. The case developed from a broadcast of a comedy
recording by
George Carlin, featuring the "seven filthy words" not permitted on the
air.
The Court upheld the FCC's definition of indecency, specifically,
"language that describes, in terms patently offensive as measured by
contemporary community standards for the broadcast medium, sexual or
excretory activities and functions, at times of the day when there is a
reasonable risk that children may be in the audience."37
The Commission adopted a loose policy of channeling indecent material to
the period after 10:00 p.m., but in April 1987, issued warnings to
three
stations, one of which was another Pacifica outlet, for broadcasting
indecent language. The FCC restated its decision to apply its generic
definition of indecency to further actions, and warned stations that
channeling indecent material to the period after 10:00 p.m. no longer
guaranteed that material's permissibility.38
The concept of a "safe harbor" was created in the 1987 Reconsideration
Order of an action against Infinity Broadcasting, one of the three
licensees cited earlier that year. In this order, the Commission ruled
that the period from midnight to 6:00 a.m. would constitute the safe
harbor
hours for indecent material.39 Several groups appealed the order; in
1988, the DC Court of Appeals ruled the FCC's safe harbor was arbitrary.
The Appeals Court suggested the Commission initiate a rulemaking
proceeding
to determine an appropriate safe harbor, but noted that a set time had to
be implemented. The Commission could not rely on case-by-case
rulings.40
Before the Commission acted, however, Congress got involved by adding a
24-hour indecency ban to an appropriations bill via the "Helms
Amendment."
41 The DC Court of Appeals stayed enforcement in January 1989, and in
May
1991, ruled the 24-hour indecency ban unconstitutional. The court
again
ordered the FCC to create an appropriate safe harbor period, however,
stating that some regulation would withstand scrutiny.42
Congress again intervened, directing the Commission in August 1992 to
create a safe harbor of midnight to 6:00 a.m.43 The FCC complied, and
issued rules in January 1993.44 Once more the policy was challenged,
and
the DC Court of Appeals granted a stay. In November 1993, the court
turned
back the FCC a third time, ruling there was no reasoned analysis
supporting the channeling of indecent material to the first six hours of
the day.45 Pending further action by Congress or the Commission, the
safe
harbor for commercial stations currently is set at 8:00 p.m. to 6:00
a.m.46
The Issue of Censorsing Political Broadcasts
Section 315 of the Communications Act was derived from Section 18 of the
Radio Act. Washington Senator Clarence Dill wrote the language,
including
both the no censorship provision and a clause limiting the liability
of
broadcasters.47 Because this liability exemption was deleted prior to
the
law's passage, questions have been raised over the years about
responsibility for the content of political broadcasts.
In 1959, in the major case on defamatory political broadcasts, Farmers
Educational & Cooperative Union v. WDAY, Inc., the Supreme Court ruled
unanimously that WDAY had no right to censor a candidate's defamatory
remarks. On the liability question, the justices ruled 5-4 in favor of
the
station, noting that to hold WDAY liable would have "the unconscionable
result of permitting civil and perhaps criminal liability to be
imposed for
the very conduct the statute demands of the licensee."48
Incitement to violence was the topic in 1972. J.B. Stoner, a white
supremacist, ran for U.S. Senate from Georgia, using spots that called
blacks "niggers" and accused them of coveting white women. The mayor of
Atlanta feared violence, and that city's chapter of the NAACP asked
the FCC
to advise stations that they could decline to run Stoner's spots and not
violate Section 315.49 The Commission refused, citing the no
censorship
provision, and noting, "A contrary conclusion here would permit anyone
to
prevent a candidate from exercising his rights under Section 315 by
threatening a violent reaction."50
When Stoner ran for governor of Georgia in 1978, the NAACP argued that
"nigger" was an indecent term. However, the Supreme Court had just
issued
its ruling in Pacifica, and the FCC Broadcast Bureau determined that
while
the word "nigger" was offensive, it did not qualify as indecent as
defined
by the Court.51
Language was also the issue in 1980, when commercials for the Citizens
Party used the word "bullshit." In responding to a censorship
complaint
against NBC Radio by candidate Barry Commoner, the FCC assured him
that
precedents were clear, and that no censorship was permitted.52
The Commission in 1984 informally addressed the subject of obscenity and
indecency in political ads. The year before, Hustler magazine
publisher
Larry Flynt had announced his intention to run for president and to
use
X-rated film clips in his ads. Ohio Representative Thomas Luken asked
the
FCC how stations should react, and in a letter to Luken in January
1984,
FCC Chairman Mark Fowler wrote that, in the opinion of the staff, "The
no-censorship prohibition in Section 315 was not intended to override
the
statutory prohibition against the broadcast of obscene or indecent
materials that is etched in Section 1464 of the Criminal Code."53 Neither
Flynt's candidacy nor his ads ever materialized, but, as noted
earlier, the
Luken Letter and Staff Memorandum were cited by the District Judge in the
1992 Becker ruling.54
The Issue of Reasonable Access
Congress first tried to guarantee access to federal candidates as part of
a 1970 campaign reform measure, but that bill was vetoed by President
Nixon.55 The Federal Election Campaign Act, S. 382, was introduced in
the
Senate in January the next year, sponsored by majority leader Mike
Mansfield of Montana,
Rhode Island's John Pastore, and Howard Cannon of Nevada.56 Title
I of the bill had two purposes: one, to control what the Senate Commerce
Committee called the spiraling cost of campaigning for public office;
two,
"to give candidates for public office greater access to the media so
that
they may better explain their stand on issues, and thereby more fully
and
completely inform the voters."57
In accordance with the stated purpose, the Committee added Section 101(c)
to Title I, providing for revocation of a broadcast license under
Section
312(a) of the Communications Act for willful or repeated failure to
allow
reasonable access to a station by any legally qualified candidate on
behalf
of his candidacy.58
The Senate passed S. 382 in December 1971; the House already had passed
its own version, forcing both bills to a conference committee.59 It
was
there that Section 101(c) was changed from any legally qualified
candidate
to candidates for federal elective office.60 In addition, a
conforming
amendment was made to Section 315(a) of the Communications Act. The
clause
noting that licensees were under no obligation to permit candidates to use
broadcast facilities was changed to read, "No obligation is imposed under
this subsection upon any licensee to allow the use of its station by
any
such candidate."61 That obligation now was imposed by the newly
enacted
Section 312(a)(7).
S. 382 became law February 7, 1972,62 and within six weeks, the FCC issued
guidelines for compliance. The Commission noted that no all-embracing
standard could be set, but wrote, "The test of whether a licensee has
met
the requirement of the new section is one of reasonableness. The
Commiss
ion will not substitute its judgment for that of the licensee, but,
rather,
it will determine in any case that may arise whether the licensee can be
said to have acted reasonably and in good faith in fulfilling his
obligations under this section."63
When Congress repealed all of Title I of the FECA in 1974, the only
section ruled still in effect was the one creating Section 312(a)(7).64
The FCC continued to rely on broadcasters to determine what
constituted
reasonable access, but in 1978, decided to conduct an inquiry to
ascertain
if its policy was working for both broadcasters and candidates.65 In
a
Report and Order issued that July, the Commission reaffirmed its
position
that the best way to balance the needs of candidates and broadcasters
was
to rely on the reasonable, good faith discretion of individual
licensees.66
The first major challenge to the law and the FCC's policy came the next
year. In October 1979, the Carter-Mondale Presidential Committee
asked
ABC, CBS, and NBC each to provide time in early December for a
30-minute
program to be used by President Carter in conjunction with an
announcement
of his candidacy for reelection. All three networks refused, claiming
it
was too early to sell political time, and that program schedules would
be
disrupted by the abundance of candidates entitled to equal time. CBS
s
uggested two five-minute blocks; ABC offered time in January 1980. The
Commission ruled the networks' refusal to sell time failed to consider
the
needs of the candidate, and found all three in violation of Section
312(a)(7).67 A week later, when rejecting the networks' petitions for
reconsideration, the Commission suggested for the first time that
broadcasters take an active role in discerning the need for political time
throughout a campaign; the order described as "entirely appropriate"
broadcasters contacting candidates to determine the probability of
requests
for access.68
Both the D.C. Court of Appeals and the Supreme Court upheld the FCC's
decision.69 Chief Justice Burger delivered the majority opinion for the
high court, holding that Section 312(a)(7) created an affirmative,
promptly
enforceable right of reasonable access for individual federal candidates.
In addition, the Court ruled the FCC has the right to determine whether a
campaign has begun, though the Commission does not actually set a
starting
date.70 The decision also gave formal endorsement to the Commission's
"reasonable, good faith judgment" policy, while appearing, on the
surface,
to side with licensees: "If broadcasters take the appropriate factors
into
account and act reasonably and in good faith, their decisions will be
entitled to deference even if the Commission's analysis would have
differed
in the first instance."71 However, the Court noted the reasonable access
law enlarges the responsibilities of licensees in the area of
political
broadcasting, and does not violate their First Amendment rights in the
area
of editorial discretion.72
The Commission did not issue any comprehensive guide in response to the
Supreme Court ruling, but did feature the decision prominently in the
section on reasonable access in the 1984 Political Primer.73 Following
the
1990 audit of thirty radio and television stations that revealed a number
of violations of political broadcast rules,74 the FCC adopted a Notice
of
Proposed Rulemaking, and, in December 1991, a Memorandum Opinion and
Order
codifying its political broadcasting rules.75 But the Commission
concluded
that in the area of reasonable access it would not be practical to adopt
formal rules; the FCC decided once again to rely on the reasonable,
good
faith judgments of licensees, and to determine compliance on a
case-by-case
basis.76
The Commission did offer some specific guidelines, including:
1. Broadcasters do not have to provide time within news programs;
2. Both program time and spot time must be made available during prime
time periods;
3. The right of access during the periods outside the 45 days prior to a
primary or 60 days prior to the general election will be determined by
the
Commission on a case-by-case basis; 4. Candidates may not be banned
from
access to time periods made available to other advertisers; 5.
Stations may consider their broader programming and business
commitments,
the number of candidates in a particular race, potential program
disruption, and the amount of time already sold to a candidate when
providing reasonable access.77
In the 1992 reconsideration of its Opinion and Order, the Commission
reaffirmed its guidelines in the areas of reasonable access.78 Later
that
year, the National Association of Broadcasters asked the FCC to rule
that
broadcasters need not sell federal candidates program time in
increments
not usually made available to commercial advertisers or that a station
does
not usually program. The Commission's response was a request for public
comment.79 In the fall of 1994, the FCC granted the NAB's request,
ruling
that "broadcasters should be required to make available to federal
candidates only the lengths of time offered to commercial advertisers
during the year preceding a particular election period."80
The FCC Decision on Explicit Anti-Abortion Ads
As noted above, the debate over controversial anti-abortion spots did not
stop on election day, 1992. On October 30, the same day the Mass
Media
Bureau responded to Becker, the Commission issued a Public Notice
Request
for Comments on the issues raised in both the Kaye, Scholer letter of
July
1992, and Becker's October complaint against WAGA. "Specifically,"
the
Commission wrote, "we seek comment on all issues concerning what, if
any,
right or obligation a broadcast licensee has to channel political
adver
tisements that it reasonably and in good faith believes are indecent.
We
also seek comment as to whether broadcasters have any right to channel
material that, while not indecent, may be otherwise harmful to
children."81
A coalition made up of all five major broadcast networks, major
independents, the National Association of Broadcasters, and the
Radio-Television News Directors Association called on the Commission to
allow broadcasters to use their own judgments to determine what
material is
appropriate for their audiences.82 But Daniel Becker said the FCC should
make the decision, noting, "It would be too easy for a broadcaster to
censor an unpopular political message under the guise that the message
is
indecent."83
The filing period ended in February 1993, but the Commission did not
release its decision for twenty-one months--after a full set of primaries
and general elections in both 1993 and 1994. The ruling upheld the
Mass
Media Bureau's decision that Becker's ads were not indecent. Citing
the
definition of indecency upheld sixteen years earlier in Pacifica, the
FCC
rejected claims that the ads depicted excretory functions: "Such an
expanded definition arguably would encompass televised scenes of a
character sweating, blowing his nose, or dressing a
wound. . . ."84 In determining that abortion was not a sexual activity
simply because it relates to sex and reproduction, the Commission noted
that an expanded definition would make any byproduct of sex--including
life
itself--indecent.85
Even though the ads were judged not indecent, the FCC gave stations the
right to decide if the explicit pictures should be kept away from
unsupervised children viewers. Quoting from the 1978 policy statement, the
Commission noted that Section 312(a)(7) does not entitle a federal
candidate to a particular placement of an ad on a station's schedule. The
FCC, therefore, said it was "unwilling to infer that Congress, in
affording
federal candidates a limited statutory right to purchase reasonable
amounts of broadcast time, intended to strip licensees of all discretion
to
consider the impact of political advertisements featuring graphic
depictions of abortions on children in their audience."86 It went on to
point out that "licensee discretion does not constitute 'censorship'
as
that term is used in the Communications Act."87 But the Commission
warned
broadcasters that a decision to channel these ads must be based on the
pictures in question, not the political position of a particular
candidate.
88
An Analysis of the FCC Decision on Explicit Anti-Abortion Ads
As demonstrated by the previous discussion, the problem facing the FCC in
this area was how to balance the rights of the public, the licensees,
and
the candidates. The Supreme Court in the WDAY case noted that Section
315
was put into law to foster political debate,89 while the Commission
staff,
in its memorandum accompanying the Luken Letter, stated, "Any
limitation on
the public's access to political debate would frustrate the purpose of the
no-censorship provision."90
However, broadcasters point out that WDAY notwithstanding, they are the
ones held accountable for what they air; the Commission's rights in
this
area were established in National Broadcasting Company v. United
States in
1943,91 and broadcasters' duties were outlined in the FCC's Program
Policy
Statement of 1960: "Broadcasting licensees must assume responsibility
for
all material which is broadcast through their facilities. This
includes
all programs and advertising material which they present to the
public."92
Moreover, the anti-abortion political ads have raised questions of what
other controversial issues may be treated in a similar manner. As
noted,
homosexuality was a topic in the campaign held prior to Ohio's special
congressional primary election in March 1993. It is not difficult to
imagine explicit ads dealing with capital punishment, or candidates using
graphic commercials to discuss a person's right to die, or to be
assisted
in committing suicide, or to support animal rights. Any of these will
create a dilemma for licensees.
Still, it is highly unlikely that Congress will change the laws concerning
political broadcasting. Section 312(a)(7) applies only to federal
candidates, meaning it expressly is designed to aid the very public
officials who would have to change it. In addition, it is doubtful Section
315(a) will be modified to give broadcasters control over the content of
political ads. Since before passage of the Radio Act, there have been
reservations about the power broadcasters have. In 1926, Secretary of
Commerce Herbert Hoover warned, "We cannot allow any single person or
group
to place themselves in position where they can censor the material which
will be broadcasted to the public."93
Thus, the needs of the public must be foremost. The Communications Act
applied the principle of the "public interest, convenience, and
necessity"
to broadcasting,94 and the Supreme Court ruled in the 1969 Red Lion
decision, "It is the right of the viewers and listeners, not the right of
the broadcasters, which is paramount."95
Yet, while critics claim that there is little social scientific evidence
to suggest that the psychological welfare of children is threatened by
exposure to material deemed to be indecent,96 the concerns of parents
are
an important consideration. In Ginsberg v. New York, (1968), the
Supreme
Court established that the government has an interest in protecting
parents' rights to rear their children,97 and, as the Court noted in the
1972 Wisconsin v. Yoder decision, "This primary role of the parents in
the
upbringing of their children is now established beyond debate as an
enduring American tradition."98
Justice Stevens wrote in the Pacifica decision, "Broadcasting is uniquely
accessible to children, even those too young to read,"99 while the DC
Court
of Appeals also noted in the first Action for Children's Television case,
"Channeling is designed to protect unsupervised children."100 It can
be
argued that no one's interest is served when children are subjected to
ads
of the type described.
Therefore, only a compromise position could balance the rights of viewers,
broadcasters, and candidates, and the Commission achieved this compromise
with its 1994 decision. As noted in the ruling, "The public's right
to
have access to political speech is not impeded by this policy."101
Critics
may argue that this ruling favors broadcasters, but on the contrary, it
permits each side certain flexibility under the law, while requiring
all
parties to take responsibility for what is broadcast. Candidates who
fear
that controversial advertising will be banished to the period after
midnight will continue to have access to some of the most popular times of
the broadcast day. The FCC reiterated its policy "that licensees
should
afford access to federal candidates in prime time, when access to
voters is
greatest."102
Michael Bailey claims that channeling spots to the period after 8:00 p.m.
restricts the ability of a candidate to reach potential voters; he
also
notes that prime time spots are the most expensive.103 But if the
rights
of the viewers truly are paramount, then candidates must accept that
treatment of a particular issue at certain times will require a different
type of ad. In addition, broadcasters who fear reproach from their
audiences should be able to assure them that certain themes in political
advertising will be aired only when adult programming is offered,
while
viewers who do not want their children exposed to particular types of
spots
should know at what times those spots will not air.
Still, the vagaries of the decision will leave broadcasters with
questions. The Commission neither requires nor encourages licensees to
channel graphic political ads. That decision, once again, is left to
the
reasonable good faith efforts of broadcasters. In warning stations to
avoid political reasons for moving ads, the FCC cites the CBS v. FCC
case:
"A broadcaster's decision to channel an advertisement 'may not be
invoked
as [a] pretext[] for denying access.'"104 Moreover, the Commission
states
that channeling of explicit anti-abortion ads must relate "to the
graphic
imagery in question and not to any political position the candidate
espouses."105 How a licensee proves it has made a proper decision is not
addressed by the Commission. Bailey argues that stations, not
candidates,
should incur the burden of appeal.106 In most ways, they will.
Conclusion
This paper has examined the questions faced by the Federal Communications
Commission in the controversy over the use of explicit anti-abortion
ads by
political candidates. The issues of indecency and safe harbor, censorship
of political advertising, and reasonable access have been reviewed; after
considering the rights as well as the needs of the viewers,
broadcasters,
and candidates, the position is advanced that permitting stations to
channel these ads to a period when fewer children are viewers best serves
both the public interest and the political process.
Michael Bailey's explicit anti-abortion spots broke new ground in the area
of political advertising and put television stations in the awkward
position of broadcasting material over which they had no control. The
Commission was slow to respond to the controversy, but in the end issued
a
decision that serves viewers, broadcasters, and candidates. It did so
by
making this issue not one of content, but of access, particularly
access to
children. In light of the FCC's ruling, the comment of one television s
tation manager is appropriate: "Why subject children to these spots?
They
can't vote."107
NOTES
1. 47 U.S.C. 315 (1988).
2. 47 U.S.C. 312(a)(7) (1988).
3. 47 U.S.C. 315(a) (1988).
4. In re Petition for Declaratory Ruling Concerning Section 312(a)(7) of
the Communications Act, Memorandum Opinion and Order,
76 Rad. Reg. 2d (P&F) 1062, 1065 (1994).
5. Michael E. Bailey, Christian Politics: Rocking America
(Georgetown, IN: Bailey Books, 1993), 33.
6. ABC News. Nightline, 31 August 1992.
7. Bailey, Christian Politics, 36-37.
8. Choice A/B, Georgetown, IN: Bailey for Life for Congress, 1992.
9. Abortion is Evil, Georgetown, IN: Bailey for Life for Congress,
1992.
10. Joe Flint, "Furor Over Anti-Abortion Political Ads," Broadcasting, 27
April 1992, 41.
11. WISH-TV, News 8, 5:00 p.m., 20 April 1992.
12. WISH-TV, News 8, 5:00 p.m., 20 April 1992.
13. John R. O'Neill, "Anti-Abortion Ads Propel Bailey in 9th District
Republican Race," Indianapolis Star, 6 May 1992.
14. Life or Death, Georgetown, IN: Bailey for Life for Congress, 1992.
15. Bailey, Christian Politics, 60.
16. Hitler, Georgetown, IN: Bailey for Life for Congress, 1992.
17. Kevin Morgan and Tom Chiat, "Victorious Hamilton Could Be In Line for
New Job," Indianapolis Star, 4 November 1992.
18. WISH-TV, News 8, 11:00 p.m., 3 November 1992.
19. Ellen Whitford, "Abortion: Both Sides Galvanized by Ads," Atlanta
Journal and Constitution, 8 July 1992.
20. Doug Halonen, "FCC Unlikely to Halt Graphic Ads," Electronic Media, 10
August 1992.
21. Letter from Roy J. Stewart, Chief, Mass Media Bureau, to Vincent A.
Pepper, Counsel, Gillett Communications, and Irving Gastfreund, Kaye,
Scholer, Fierman, Hays & Handler, 7 FCC Rcd. 5599 (1992).
22. Letter to Pepper and Gastfreund, 7 FCC Rcd. 5599, 5600 (1992).
23. Letter to Pepper and Gastfreund, 7 FCC Rcd. 5599, 5600 (1992).
24. Gillett Communications v. Daniel Becker, 807 F. Supp. 757 (N.D. Ga
1992).
25. Letter from Roy J. Stewart, Chief, Mass Media Bureau, to Daniel Becker,
71 Rad. Reg. 2d (P&F) 995 (1992).
26. Daniel Becker, 807 F.Supp. 757, 763.
27. Daniel Becker, 807 F.Supp. 757, 761.
28. Joe Flint, "FCC Drifts Toward Safe Harbor for Abortion Ads,"
Broadcasting, 9 November 1992, 48.
29. "Election Results," Atlanta Journal and Constitution,
5 November 1992.
30. Keith Glover, "Campaigning Crusaders Air Graphic Anti-Abortion Ads,"
Congressional Quarterly, 26 September 1992, 2972.
31. David Goetz, "WHAS Limits Bailey's Anti-Abortion Ads to Hours After 8
P.M.," Louisville Courier-Journal, 31 March 1994, 1B.
32. Steven Click, National Sales Manager, WTHR-TV, telephone conversation
with author, 28 March 1995.
33. Mary Dieter, "Leising's Old-Fashioned Campaign Beat Bailey's
'Offensive' Tactics," Louisville Courier-Journal, 5 May 1994, 4B
34. Michael Bailey, "Censorship by Media Elites Will Ultimately Threaten
the Republic," Federal Communications Law Journal 47 (1994): 159-163.
35. 18 U.S.C. 1464 (1988).
36. 47 U.S.C. 312(a)(6) (1988).
37. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
38. In re Pacifica Foundation, Inc., Memorandum Opinion and Order,
62 Rad. Reg. 2d (P&F) 1191 (1987).
39. In re Infinity Broadcasting Corp.of Pennsylvania, Memorandum Opinion
and Order, 64 Rad. Reg. 2d (P&F) 211 (1987) (reconsideration order).
40. Action for Children's Television v. FCC, 852 F.2d. 1332, 1344
(D.C. Cir. 1988).
41. Pub. L. No. 100-459, 608, 102 Stat. 2228 (1988).
42. Action for Children's Television v. FCC, 932 F.2d.
1504, 1520 (D.C. Cir. 1991).
43. Pub. L. No. 102-356, 16(a), 106 Stat. 949, 954 (1992).
44. In re Enforcement of Prohibitions Against Broadcast Indecency in 18 USC
1464, Report and Order, 71 Rad. Reg. 2d (P&F) 1116 (1993).
45. Action for Children's Television v. FCC, 74 Rad. Reg. 2d (P&F), 229-240
(1993).
46. Joe Flint, "Indecency Rules Under Fire in Courts, at FCC,"
Broadcasting & Cable, 1 March 1993, 44.
47. 67 Congressional Record 12502 (1926).
48. Farmers Educational & Cooperative Union v. WDAY, Inc.,
360 U.S. 525, 529 (1959).
49. Letter from Ben F. Waple, Secretary, FCC, to Lonnie King, Atlanta
NAACP, 36 F.C.C. 2d, 635, 636 (1972).
50. Lonnie King, 36 F.C.C. 2d, 635, 637 (1972).
51. Letter from Wallace E. Johnson, Chief, Broadcast Bureau, to Julian
Bond, Atlanta NAACP, 69 F.C.C. 2d, 943, 944 (1978).
52. In re Complaint of Barry Commoner and LaDonna Harris Against NBC Radio,
87 F.C.C. 2d, 1, 5 (1980).
53. Letter from Mark S. Fowler, Chairman, to Rep. Thomas Luken,
19 January 1984.
54. Daniel Becker, 807 F.Supp. 757, 763 (1992).
55. Senate Report (Commerce Committee), to accompany S.382, No. 92-96,
(1971).
56. Senate Report (Rules and Administration), to accompany S.382, No.
92-229, (1971).
57. Id.
58. Id.
59. Senate Conference Report No. 92-580, (1971).
60. Id.
61. Id.
62. P.L. 92-225, reprinted in U.S.C.A.A.N. (1972).
63. Use of Broadcast and Cablecast Facilities by Candidates for Public
Office, 23 Rad Reg. 2d (P&F) 1901 (1972).
64. P.L. 93-443, Title II 205 (b), reprinted in U.S.C.A.A.N. (1974). The
purpose behind the Federal Election Campaign Act Amendments of 1974 was to
"renew and reemphasize the disclosure provisions of the Federal Election
Campaign Act of 1971." See Senate Report (Rules and Administration),
to
accompany S.3044,
No. 93-689, (1974). Historical and Statutory Notes for 47 U.S.C.A. 312
(West 1988) explain that P.L. 93-443, Title II 205 (b) "has been
construed as not repealing the amendment to this
section . . .[of P.L. 92-225]."
65. In re Commission Policy in Enforcing Section 312 (a) (7) of the
Communications Act, 43 Rad. Reg. 2d (P&F) 1029 (1978).
66. Id.
67. In re Complaint of Carter-Mondale Presidential Committee, Inc., 46 Rad.
Reg. 2d (P&F) 829 (1979).
68. In re Complaint of Carter-Mondale Presidential Committee, Inc.
(petition for reconsideration), 46 Rad. Reg. 2d (P&F) 899 (1979).
69. CBS v. FCC, 629 F. 2d 1 (D.C. Circuit, 1980); CBS v. FCC, 453 U.S. 367
(1981).
70. CBS v. FCC, 453 U.S. at 388.
71. Id. at 387.
72. Id. at 394-396.
73. FCC, The Law of Political Broadcasting and Cablecasting: A Political
Primer 1984 Edition, (1984).
74. Mass Media Bureau Report on Political Programming Audit, 68 Rad. Reg.
2d (P&F) 113 (1990).
75. In re Codification of the Commission's Political Programming Policies,
70 Rad. Reg. 2d (P&F) 239 (1991).
76. Id.
77. Id.
78. In re Codification of the Commission's Political Programming Policies
(reconsideration), 70 Rad. Reg. 2d (P&F) 1331 (1992).
79. In re Request for Declaratory Ruling of National Association of
Broadcasters, Staff Ruling and Request for Public Comment, 7 FCC Rcd. 6880
(1992).
80. In re Request for Declaratory Ruling of National Association of
Broadcasters, Memorandum Opinion and Order, 76 Rad. Reg. 2d (P&F) 200, 201
(1994).
81. In re Petition for Declaratory Ruling Concerning Section 312(a)(7) of
the Communications Act (MM Dkt. No. 92-254),
Public Notice, FCC LEXIS 6155 (1992).
82. Harry A. Jessell, "Broadcasters Oppose Widening Indecency Net,"
Broadcasting, 1 February 1993, 54.
83. Jessell, "Broadcasters Oppose," 54.
84. In re Petition for Declaratory Ruling Concerning Section 312(a)(7) of
the Communications Act, supra note 4.
85. Id.
86. Id.
87. Id.
88. Id.
89. WDAY, 360 U.S. 525, 529 (1959).
90. FCC Staff Memorandum on Section 315 and Obscene or Indecent Material, 6
January 1984, 5, accompanying Luken Letter, supra note 53.
91. National Broadcasting Company v. United States, 319 U.S. 190
(1943).
92. Commission en banc Programming Inquiry, Report and Statement of Policy,
25 Fed. Reg. 7291, 7295 (1960).
93. 67 Congressional Record 5484 (1926).
94. 47 U.S.C. 303, 307, 309 (1988).
95. Red Lion Broadcasting Co. Inc. v. FCC,
395 U.S. 367, 390 (1969).
96. Edward Donnerstein, Barbara Wilson, and Daniel Linz, "On the Regulation
of Broadcast Indecency to Protect Children," Journal of Broadcasting &
Electronic Media 36 (winter 1992): 116.
97. Ginsberg v. New York, 390 U.S. 629, 639 (1968).
98. Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).
99. Pacifica, 438 U.S. 726, 749 (1978).
100. ACT I, 852 F.2d 1332, 1340 (D.C. Cir. 1988).
101. In re Petition for Declaratory Ruling Concerning Section 312(a)(7) of
the Communications Act, supra note 4.
102. Id.
103. Bailey, "Censorship by Media Elites," 162.
104. In re Petition for Declaratory Ruling Concerning Section 312(a)(7) of
the Communications Act, supra note 4.
105. Id.
106. Bailey, "Censorship by Media Elites," 162.
107. Paul Karpowicz, interview with author, 12 February 1993.
ANTI-ABORTION POLITICAL ADS: BALANCING QUESTIONS OF INDECENCY, CENSORSHIP,
AND ACCESS
MICHAEL SPILLMAN
Indiana University
Mailing Address:
8259 Castle Ridge Lane
Indianapolis, IN 46256
(317) 842-2221
e-mail address: [log in to unmask]
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