Volume 3 Issue 1 Article 5 1996 TThhee FFCCCC,, IInnddeecceennccyy,, aanndd AAnnttii--AAbboorrttiioonn PPoolliittiiccaall AAddvveerrttiissiinngg Lili Levi Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Communications Law Commons, Entertainment, Arts, and Sports Law Commons, and the First Amendment Commons RReeccoommmmeennddeedd CCiittaattiioonn Lili Levi, The FCC, Indecency, and Anti-Abortion Political Advertising, 3 Jeffrey S. Moorad Sports L.J. 85 (1996). Available at: https://digitalcommons.law.villanova.edu/mslj/vol3/iss1/5 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Levi: The FCC, Indecency, and Anti-Abortion Political Advertising THE FCC, INDECENCY, AND ANTI-ABORTION POLITICAL ADVERTISING Liu LEvi* TABLE OF CONTENTS Introduction ................................................ 86 I. The Scope of Indecency ............................... 99 A. The Broadcasters' Claimed Dilemma ............... 99 B. The Open Texture of the FCC's Indecency D efinition .......................................... 106 1. The FCC's Options on a Literal Reading ........ 107 2. Context as the Determinant .................... 109 3. The Underlying Vision of Indecency ............ 110 C. The Problems of Constitutional and Statutory Interpretation Avoided by the FCC's Approach ..... 114 II. The Scope of Political Advertising Rights ............... 121 A. The Statutory Dimension ........................... 121 1. Section 312(a) (7) and the Meaning of Reasonable Access .............................. 123 a. The Text and Legislative History of Section 312(a) (7) ................................... 124 b. Administrative and Judicial Interpretations of Section 312(a) (7) ........................... 130 2. The Prohibition of Censorship Under Section 315 ............................................. 139 a. Legislative History and the Meaning of Censorship in Section 315 ................... 140 b. Judicial and Administrative Precedent ....... 153 c. Differences between Channeling and "Censorship" . ............................... 161 3. The Proper Level of Deference on Judicial Re view .......................................... 166 B. The Constitutional Dimension ...................... 172 III. The Wise Policy Approach to "Harmful" Political A dvertising ............................................. 181 * Professor of Law, University of Miami School of Law. I am deeply grateful to John Cairns, Ken Casebeer, Ed Cohen, Mary Coombs, Pat Gudridge, Jim Kainen, Sharon Keller, Marilys Nepomechie, Bernie Oxman, Steve Schnably, and Irwin Stotzky for their generosity with time and comments. Amanda Barry, Chris Nikides, Andy Patten, and Rick Strul deserve many thanks for research assistance. (85) Published by Villanova University Charles Widger School of Law Digital Repository, 1996 1 86 VILLJAeffNreOy VS.A M oSoPraOdR STpoSr ts& La wE NJouTr.n aLl,A VWol. J3o, IUssR. 1N [1A99L6], Art. 5[Vol. III: p. 85 A. Policy Assessments of the November Ruling ........ 182 1. Institutional Arguments ......................... 182 a. Government Neutrality and Editorial Freedom .................................... 182 b. Two Critiques of Institutional Arguments for Broadcaster Discretion ...................... 184 (1). Mercantile Pressures on Broadcasters .. 184 (2). The Strategic Character of the November Ruling ...................... 186 2. Substantive Arguments .......................... 189 a. The Protection of Political Debate ........... 190 (1). Arguments from Manipulation ......... 190 (2). The Pros and Cons of a Model of Deliberative Politics .................... 198 (3). The Ambiguous Effect of the Political "Ma rket" ..... ......................... 202 b. The Protection of Children ................. 204 B. The Better Alternative .............................. 210 Co nclusion ................................................. 218 INTRODUCTION Since the 1992 election season, pro-life candidates for federal elective office have aired graphic television advertisements depict- ing abortion or aborted fetuses. Indiana Republican congressional candidate Michael Bailey, a self-styled "Christian media specialist," inaugurated the graphic ads in 1992.1 One of his spots showed tweezers picking through a petri dish containing the crushed head, arms, and legs of an aborted fetus as a woman's voice intoned, "[i]t's a woman's choice."2 Bailey's advertisement was not an iso- 1. Michael E. Bailey, Censorship by Media Elites Will Ultimately Threaten the Repub- lic, 47 FED. COMM. L.J. 159, 160 (1994); William Booth, Antiabortion TV Ads Catch On in Campaigns,W ASH. POST, July 20, 1992, at Al; David Jackson, TV Ads on Abor- tion Raise Speech, Obscenity Issues; Senate Hopeful May Air Spots with Dead Fetuses, DAL- LAS MORNING NEWS, Feb. 14, 1993, at A39; Christopher Stern, Antiabortion Ads Resurface at FCC, BROADCASTING & CABLE, Apr. 18, 1994, at 36 [hereinafter Stern, Antiabortion Ads]. On Bailey's activities as a Christian media specialist, see Bailey Plans More GraphicA nti-Abortion Ads for TV, COURIERJ. (Louisville), July 2, 1993, at B7 [herein- after Bailey Plans];J on Lafayette, Candidate'sA ds Raising TV Fears, ELECTRONIC ME- DiA, Apr. 27, 1992, at 1 [hereinafter Lafayette, Candidate'sA ds] (noting that Bailey ran his own promotion company until he founded Christian Media Ministries in 1991). 2. Booth, supra note 1; David Kelly, Challenging the Right to Air, HOLLYWOOD REP., Aug. 11, 1992; Kate Maddox, Graphic Ads Take Political Center Stage, ELEC- TRONIC MEDIA, Aug. 17, 1992, at 1 [hereinafter Maddox, Graphic Ads]. https://digitalcommons.law.villanova.edu/mslj/vol3/iss1/5 2 1996] Levi: The FCC, Indecency, and Anti-Abortion Political Advertising ANTI-ABORTION POLITICAL ADVERTISING lated phenomenon, in part because he lent some of his abortion footage to other pro-life candidates for similar political campaign ads elsewhere.3 Some of the commercials even used the same nar- rative lines: "When something is so horrifying that we can't stand to look at it, then why are we tolerating it? Pro-choice is a lie. These babies would never have chosen to die."4 In Georgia, Repub- lican congressional candidates Daniel Becker, Jimmy Fisher, and Mark Myers each ran an advertisement showing "Choice A," a smil- ing baby, and "Choice B," a fully developed fetus assertedly aborted in the last weeks of pregnancy.5 Some ads purported to show a 3. Booth, supra note 1; Maddox, Graphic Ads, supra note 2, at 1. See alsoJack- son, supra note 1, at A39 (stating that Bailey "supplied footage to like-minded can- didates in 18 states, including California, New York and Illinois"); Jeff Kunerth, Candidates Turn to Graphic TVAds to Spread Anti-abortionM essage, ORLANDO SENTINEL TRm., July 12, 1992, at A5 (reporting on "copycat candidates" and Bailey's provi- sion of videotape to others); Lafayette, Candidate's Ads, supra note 1, at 1 (noting calls received from potential candidates in Texas and Montana). On the use of graphic anti-abortion advertisements generally since 1992, see Hille von Rosenvinge Sheppard, Comment, The Federal Communications Act and the Broadcast of Aborted Fetus Advertisements, 1993 U. CHI. LEGAL F. 393, 393 (1993) (stat- ing that such advertisements aired in 17 states); Michael deCourcy Hids, Senator Who Wouldn't Run Has Won, N.Y. TIMES, Dec. 6, 1992, § 1, at 26 (reporting that anti- abortion candidates in 14 Congressional and Senate races used aborted fetuses in ads in 1992); Jackson, supra note 1. 4. Booth, supra note 1 (advertisement for Georgia congressional candidate Jimmy Fisher); Crier & Company, (CNN television broadcast, July 24, 1992); Cross- fire, (CNN television broadcast, July 24, 1992) (advertisement for Georgia Republi- can congressional candidate Daniel Becker); Colorado Christian Pro-Life Party Congressional Candidate Matt Noah Advertisement (on file with author). Some of the Becker and Bailey advertisements apparently include footage from "The Hard Truth," an anti-abortion documentary purportedly showing fetuses from third tri- mester abortions. Charles Walston, 4 GOP Candidates Support Graphic Anti-abortion Ad, ATLANTAJ. & CONsT.,July 1, 1992, at C5;Jackson, supra note 1. Becker claimed that the fetuses were taken from garbage dumpsters outside abortion clinics. Wal- ston, supra. 5. Booth, supra note 1; Sheppard, supra note 3, at 393. Similarly, one of Daniel Becker's advertisements featured a shot of the candidate holding an infant and saying: "I'm Daniel Becker. I'd like you to meet five day old Lydia. Six days ago under current law, she could have been aborted." Gillett Communications of Atlanta, Inc. Petition for Declaratory Ruling, In re Applicability of Section 312(a) (7) of the Communications Act of 1934, as amended, and Section 73.1944 of the Rules of the Commission to Certain Political Advertisements, at 2 n.1 (filed July 28, 1992) (on file with author) [hereinafter Gillett Petitionf or Declaratory Rul- ing]. The rest of the advertisement was described as follows by the station that aired it: Right before the word "aborted" the image cuts to the first of six shots of aborted fetuses, some held in a human hand. All are badly discolored in whole or in part, and some appear covered with a wet, dark, shiny sub- stance. While these six clips are being shown, a female announcer recites statistics purporting to show the prevalence of third trimester abortions. The spot closes with the candidate claiming that he has placed before the viewer both life and death in requesting their vote. Published by Villanova University Charles Widger School of Law Digital Repository, 1996 3 88 VILLJeAffNreOy VS. AM oSoPraOdR STpoSr ts& La wE NJouTr.n aLl,A VWol. J3O, IsusR. 1N [1A99L6], Art. 5[Vol. III: p. 85 gloved human hand holding fetal arms that had allegedly been ripped from the fetus.6 Other graphic abortion imagery featured intercutting shots of concentration camp horrors, swastikas, Ameri- can flags and aborted fetuses, characterizing abortion as the Ameri- can Holocaust.7 In Iowa, a minor party presidential candidate aired a number of similarly graphic ads that also provided names and addresses of two physicians associated with Planned Parenthood, so that viewers could "contact these baby killers and urge them to mend their ways."8 Some of these candidates were not satisfied with the traditional thirty or sixty second political spot. They also sought program- length time to air "infomercials" on the asserted horrors of abor- tion. Daniel Becker, for example, tried to air a thirty minute pro- gram containing footage of a third trimester abortion actually being performed. The lengthy advertisement featured spurting blood, pieces of fetal tissue being removed from a woman's vagina by forceps, and a clinical voiceover by a physician describing the technique of dilation and evacuation abortion, during which the fetus' head is crushed prior to removal.9 6. Videotape of 1992 Stephen Hopkins anti-abortion commercial program (on file with author). 7. Lisa S. Mangan, Aborting the Indecency Standard in Political Programming, 1 COMMLAw CONSPECrUs 73, 73 (1993); Bailey Ads Will Target Gambling, COURIERJ. (Louisville), Sept. 10, 1993, at B1 [hereinafter Bailey Ads]; Booth, supra note 1, at Al; Ben MacIntyre, USA: EvangelicalsR ally to Beat the 'Sinful,' THE TIMES, (London), Oct. 19, 1992, availablei n LEXIS, Nexis Library, Times File; Maddox, Graphic Ads, supra note 2; R.G. Ratcliffe, GOP Candidate Filesf or Senate Election, Hous. CHRON., Jan. 26, 1993, at A24 (quoting Stephen Hopkins' claim that "[d]ivine providence has decreed that America look upon the images of her holocaust"). The appropri- ation of the Holocaust for anti-abortion arguments can be found throughout the literature of the graphic ads movement. See, e.g., Bailey, supra note 1, at 162. 8. Comments of Planned Parenthood at 3-5, MM Docket No. 92-254, filed in response to Request for Comments, In re Petition for Declaratory Ruling Concern- ing Section 312(a) (7) of the Communications Act, 7 F.C.C.R. 7297 (1992) [herein- after Comments of Planned Parenthood]; Marcia Cranberg & Louise Arnheim, When "ReasonableA ccess" Is Used Unreasonably, 11 COMM. LAw. 1, 20 (Fall 1993). See also infra note 322. 9. See Gillett Communications, Inc. v. Becker, 807 F. Supp. 757, 763 (N.D. Ga. 1992), appeal dismissed, 5 F.3d 1500 (11th Cir. 1993). A tape of the Becker adver- tisement was provided to the author by the FCC. The FCC tapes also included a Stephen Hopkins "infomercial," purporting to show a third trimester abortion, in connection with his 1992 candidacy for U.S. Senate from Texas. Jackson, supra note 1. See also Anne Rochell, Elections '92 TV Stations Split on Airing Graphic Anti- Abortion Ad, ATLANAJ. & CONST., Nov. 1, 1992, at C8 (discussing a graphic ad from Becker's 1992 campaign). Subsequent elections gave witness to similar anti-abortion ads, with candidates claiming that the graphic ads continued to be critical to their campaign strategies. Stem, Antiabortion Ads, supra note 1; Mary Dieter, Leising Old-Fashioned Campaign Beat Bailey's Offering Tactics, COURIERJ. (Louisville), May 5, 1994, at B4 (reporting Bailey's use of anti-abortion ads in 1994 elections). Michael Bailey also produced https://digitalcommons.law.villanova.edu/mslj/vol3/iss1/5 4 1996] LevAi: NTTheI -FACBCO, IRndTeIcOenNc y, PanOdL AITnItiC-AAbLo rtAioDn VPEolRitiTcaISl AINdGvertising These advertisements unsurprisingly generated controversy.10 The candidates were hardly unaware that their images would hor- rify. 1 Viewer reaction to these commercials was indeed as outraged spots for other anti-abortion candidates (such as Joe Slovenec, an independent candidate for U.S. Senate from Ohio). Steven W. Colford, FCC Ruling Imminent on Anti-Abortion Ads, ADVERTISING AGE, July 25, 1994, available in WESTLAW, ALLNEWS File [hereinafter Colford, FCC Ruling]. Michael Bailey's own 1994 cam- paign considered scheduling a December ad depicting a traditional Christmas scene with an aborted fetus substituting for the Christ child and an announcer asking: "What would have happened if Mary would have aborted Jesus Christ?" Bailey Plans, supra note 1, at B7. 10. See, e.g., Booth, supra note 1; Crossfire, supra note 4; Jackson, supra note 1. Indeed, the ads became the subject of many news stories and talk shows. See, e.g., Brian Cabell, TBS Says Hands Are Tied on Abortion-Baseball Ads, CNN News, Tran- script No. 112-7, July 6, 1992; Nightline: Graphic PoliticalA nti-Abortion Ads, (ABC News broadcast Aug. 31, 1992) [hereinafter Nightline] ("The commercials became a hot story. Within weeks, Bailey went from obscurity to celebrity .... "). 11. See, e.g., Booth, supra note 1; Stern, Antiabortion Ads, supra note 1, at 36. For example, Daniel Becker acknowledged that "[cllearly the nature of these ads is offensive to most," but called it "a necessary offense." Walston. supra note 4. Becker stated: I would like to express my grief over the necessity of using such a graphic portrayal of the violence done to children through abortions. I have cho- sen to air these ads through sports, news and other related programming which reaches a predominantly male audience, with the express purpose of appealing to fathers to turn their hearts once again to their little ones. This ad was not designed to overcome our ignorance about abortion. It was designed to overcome our denial. Kathy Scruggs, Candidate Won't Pull Graphic Abortion Ads, Spots to Air During Today's Braves Game, ATLANTA J. & CONST., July 5, 1992, at Al. Michael Bailey "freely admits" that his commercials are meant to disturb view- ers, including children: "I think kids should see them because we don't want them to think abortion is socially acceptable." Stem, AntiabortionA ds, supran ote 1, at 36. In his view, the ads forced viewers "to walk through the 'death camps.' It is sick. It ought to horrify people." Nightline, supra note 10. Furthermore, he described the commercials as containing "ripped apart arms and legs and torsos, absolutely dis- gusting .... It's just sick, it's just sick. That's our point." Booth, supra note 1. Early on, Mr. Bailey stated his view that "[ijf people would see the dead babies that we're killing through abortion, they would think it was so horrifying they would stop .... " Lafayette, Candidate's Ads, supra note 1, at 1 (quoting Bailey in April 1992). Bailey also said: "I decided to air the graphic footage because I believe that the American people have the right and obligation to make an informed decision as to whether abortion is murder." John Harmon, Anti-Abortion Ad Rattles TV Sta- tion, ATLANTAJ. & CONST., Oct. 29, 1992, at E4. According to Bailey, "[w] hat we've done is, we've cut through all the rhetoric and taken it directly to the people." Nightline, supra note 10. After having continued to use the graphic formats in his 1994 campaign, Bailey conceded that his "message and [his] methods are offensive .... Even people in the church aren't yet quite comfortable with this." Dieter, supra note 9. Yet Bailey also said: "I have no apologies for the ads and our overtly Christian stance .... We believe Christians need to invade politics and bring Christian principles back into the body politic." Bob Lewis, Hamilton Coasts, Three Vie in Tight GOP Primary, AP POL. SERVICE, May 3, 1994, available in WESTLAW, ALLNEWS File. Republican Senate candidateJohn Knox stated that "[t]he ads are designed to show that it's a life or death issue .... If it takes this graphic depiction of what is going on, I think the American people deserve that .. " Walston, supra note 4. Published by Villanova University Charles Widger School of Law Digital Repository, 1996 5 90 VILLJeAffNreOy SV. AM oSorPaOd RSpToSrt s &La wE JNouTr.n aLl, AVWol. J3O, IUss.R 1N [1A99L6], Art. 5[Vol. III: p. 85 as it was swift, at least judging from the outpouring of distressed phone calls to stations, complaints to the FCC and threats of litiga- tion evoked by the advertisements. Many of the commercials aired in the early afternoon and prime time.12 Letters of complaint and phone calls poured into the television stations running the ads.13 One station received bomb threats after it aired graphic anti-abor- tion ads for Republican U.S. Senatorial candidate Stephen Hopkins in 1993.14 A number of viewers sued the television stations that Knox's bottom line: "[i]t's gut-check time in America. People have to quit strad- dling the fence." Id. David Shedlock, of the Des Moines office of Operation Rescue, purchased time to air Virginia independent presidential candidate Howard Phillips' graphic anti-abortion ads during an ABC "After School Special" in 1992. GraphicA nti-Abor- tion Ads to Run During Children's Program, UPI, Sept. 17, 1992, available in LEXIS, Nexis Library, UPI File [hereinafter Graphic Ads During Children's Program]. His rationale: "children need to know what can happen." Id. In explaining his placement of ads during periods when children will be watching television, Pro-Life Senate candidate Donald Larson stated that "they will question their parents and make them uncomfortable enough to begin working against abortion." North Dakota Senate: New Pro-Life Ads Target Conrad, THE HOT- LINE, Nov. 23, 1992, available in LEXIS, Nexis Library, Hotline File [hereinafter North Dakota Senate]. 12. See, e.g., Milagros Rivera-Sanchez & Paul H. Gates, Jr., Abortion on the Air: Broadcasters and Indecent Political Advertising, 46 FED. COMM. LJ. 267, 268 (1994); Booth, supra note 1 (noting that Becker ads appeared during Atlanta Braves games and that Republican Jimmy Fisher ads ran frequently - up to 200 times per week - on cable channels); Graphic Ads During Children'sP rogram, supra note 11 (noting that Howard Phillips' ads were scheduled to be aired during ABC's "After School Special"); Christopher Stern, Viewers Protest Antiabortion Ads, BROADCASTING & CABLE, Feb. 21, 1994, at 64 [hereinafter Stern, Viewers Protest] (noting that Hop- kins' 1994 ads aired in early mornings and evenings, when children were likely to be in audience, and that he purchased spots during those times "to use his adver- tising dollars most efficiently"); Walston, supra note 4 (reporting that Becker ads were scheduled to appear during Atlanta Braves broadcasts). See also Bailey, supra note 1, at 160-61. 13. See, e.g., Abortion 0, Braves 1, THE HOTLINE, July 7, 1992, at TV Monitor, available in LEXIS, Nexis Library, Hotline File; Lafayette, Candidate's Ads, supra note 1; Jon Lafayette, Chicago Station Airs Graphic Ad Against Abortion, ELEcTRONIC MEDIA, July 27, 1992, at 2 [hereinafter Lafayette, Chicago Stations]; Limit Sought on Fetus Display, ATLANTA REc., Sept. 7, 1992, at B6; Nightline, supra note 10; Philip P. Pan, Abortion Ads Anger Braves Viewers, ATLANTA J. & CONST., July 4, 1992, at Al; Rochell, supra note 9, at C8; Scruggs, supra note 11, at Al; Stern, Viewers Protest, supra note 12, at 64. See also Comments of Gillett Communications of Atlanta at 4, MM Docket No. 92-254, filed in response to Request of Comments, In re Petition for Declaratory Ruling Concerning Section 312(a) (7) of the Communications Act, 7 F.C.C.R. 7297 (1992) [hereinafter Comments of Gillett]. Broadcasters found that irate viewers blamed the station managements for their decisions to air the ads, not understanding the statutory mandates pursuant to which the broadcasters felt compelled to air them. Affidavit of Jack Sander at 5, Comments of Gillett, supra at 5. 14. Texas Senate 1993: Last Ditch Ads, ABORTION REP., Apr. 27, 1993, available in LEXIS, Nexis Library. KTFX-TV, the NBC affiliate in Midland, Texas, received six bomb threats after airing Hopkins' ad. Broadcast TV, ELEcrONIC MEDIA, Mar. 22, 1993, available in LEXIS, Nexis Library. Hopkins ran in 1993 for the seat vacated when Lloyd Bentsen became Secretary of the Treasury. https://digitalcommons.law.villanova.edu/mslj/vol3/iss1/5 6 1996] LeviA: TNhTe IF-CACB, OInRdeTcIeOncNy, aPnOd ALnITti-IAcAboLrt ioAnD PVolEitRicTalI SAIdNvGertising aired the graphic ads, claiming intentional infliction of emotional distress.15 Additionally, many viewers contacted the Federal Com- munications Commission (FCC or Commission): In 1992 alone, the FCC received over 1200 telephone calls and about 1000 letters about the anti-abortion ads, the majority of which complained of their graphic nature.16 Given this reaction, broadcasters might have been expected to reject such advertisements or schedule them in the midnight hours. Some broadcasters, however, felt compelled by law to air them. 17 15. See, e.g., Bailey Ads, supran ote 7, at BI (reporting woman's intention to sue WAVE-TV in Louisville "for traumatizing [her] child"); Limit Sought on Fetus Display, THE ATLANTA REc., Sept. 7, 1992, at B6 (noting lawsuits against Denver and Boul- der stations); Joe Flint, Graphic Political Spots Bedevil Stations, FCC, BROADCASTING, Aug. 31, 1992, at 6 (reporting on suit seeking restraining order against Denver Station KUSA-TV's airing of graphic ads); David Goetz, Jeffersonville Mom Sues to Stop Bailey's Anti-Abortion Ads, COURIERJ. (Indiana), Sept. 15, 1992, at BI (reporting pro-life viewer's suit to enjoin Louisville stations from airing graphic anti-abortion ads on ground that "her two sons could suffer permanent 'psychological and emo- tional injuries' from graphic anti-abortion ads.. .."); Lewis, supra note 11 ("It]he ads prompted lawsuits from viewers who found them offensive"); Limits Sought on Fetus Display, supra (stating that irate parents sued TV stations in Denver and Boul- der for "intentional damage" inflicted on their children); Maclntyre, supra note 7 (reporting that ads comparing abortions to Holocaust "prompted a lawsuit by an Indiana housewife who opposed abortion but called tactics 'vile, disgusting and atrocious' "); Maddox, Graphic Ads, supra note 2, at 1 (discussing two Colorado families' lawsuits to block Christian Pro-Life anti-abortion ads); New Albany, USA TODAY, Oct. 16, 1992, at 7A (describing refiling of federal suit as state court nui- sance claim in order to enjoin Bailey ads); Nightline, supra note 10 (discussing how certain children experienced trauma and became hysterical when graphic anti- abortion ads aired); North Dakota Senate: New Pro-Life Ads Target Conrad, THE HOT- LINE, Nov. 23, 1992; Leslie Scanlon, Woman Again Tries to Block Abortion Ads Candi- date, COURIERJ. (Indiana), Apr. 25, 1992, at A9 (discussing pro se federal complaint and request for temporary restraining order to block Bailey ads). See also infra note 315 and accompanying text. 16. Memorandum Opinion and Order, In re Petition for Declaratory Ruling Concerning Section 312(a) (7) of the Communications Act, 9 F.C.C.R. 7638, 7642 (1994) (stating that FCC "received approximately 1,000 letters concerning the air- ing of political advertisements containing graphic abortion imagery") [hereinafter November Ruling]; Mangan, supra note 7, at 73; Colford, FCC Ruling, supra note 9 (stating that FCC reported complaints concerning airing of graphic anti-abortion ads); Stern, Viewers Protest, supra note 12 (claiming that FCC logged more than 3000 complaints). Indeed, outraged viewers were counseled, in print, to call the FCC and com- plain about Michael Bailey's 1994 campaign of graphic abortion imagery. Steve Hall, TV Stations Should Reject Bailey's Ad, INDIANAPOLIS STAR, Apr. 13, 1994, at B7. The then-current spots featured "images of dead fetuses" and children in a ceme- tery, singing a song about "how long we will allow abortion to continue." Id. Some stations apparently refused to air the spots in the news, leading Bailey to charge them with hypocrisy for covering stories with dead bodies while rejecting his ads. Bailey, supra note 1, at 161; Cary B. Willis, Bailey Files Complaint Over Station Limiting Ad, COURIERJ. (Louisville), Apr. 7, 1994, at BI. 17. See, e.g., Booth, supra note 1 (reporting that TBS executives did not want to air the ads, but thought FCC regulation required them to do so); Steven W. Published by Villanova University Charles Widger School of Law Digital Repository, 1996 7 92 VILLJeAffNreOy VS. AM oSorPaOd RSpToSrt s &Law E JNouTrn. aLl, AVWol. 3J,O IsUs. R1 N[1A99L6], Art. 5[Vol. III: p. 85 Section 312(a) (7) of the Federal Communications Act of 1934 (Communications Act) guarantees federal political candidates "rea- sonable access" to the broadcast airwaves for their political adver- tisements, and puts licensees at risk of license revocation for any willful or repeated violation of the access privilege.18 Section 315 of the Communications Act requires broadcasters to provide equal op- portunities to all legally qualified candidates for a political office if any one of them is allowed to "use" the station, and explicitly for- bids any censorship of political advertisements aired pursuant to the equal opportunities rule.19 A number of stations sought to avoid this dilemma by appeal- ing to the FCC in July 1992,20 in marked contrast to the traditional broadcaster posture of resisting governmental intervention.21 Colford, Candidate'sA ntiabortion Spots Test Federal Limits, ADVERTISING AGE, Apr. 27, 1992, at 3 [hereinafter Colford, Candidate'sA ntiabortion Spots] (reporting that FCC "told station attorneys they were required by law" to air ads);Jackson, supra note 1, at A39 (quoting general manager of Dallas' KDFW-TV as saying "[if] we had a choice, we probably would not have ran the spots"); Lafayette, Candidate's Ads, supra note 1. 18. 48 Stat. 1064 (1934), amended by 47 U.S.C. §§ 151-613 (1995). Section 312(a) (7) states: The Commission may revoke any station license or construction permit ... for willful or repeated failure to allow reasonable access to or to per- mit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on be- half of his candidacy. 47 U.S.C. § 312(a)(7) (1995). 19. Section 315 provides, in pertinent part, that: 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. 47 U.S.C. § 315(a) (1995). 20. In July 1992, two Petitions for Declaratory Ruling were filed with the FCC - one by Gillett Communications of Atlanta, Inc., former licensee of Atlanta tele- vision station WAGA-TV (a CBS affiliate that had previously aired a Daniel Becker commercial) and the other by the law firm of Kaye, Scholer, Fierman, Hays & Handler apparently on behalf of more than 300 broadcast clients. See November Ruling, 9 F.C.C.R. at 7638 n.1. See also Kelly, supra note 2 (stating that the Kaye, Scholer firm represented more than 400 television stations). None of the firm's filings specify the number of clients on whose behalf the declaratory judgment petition was brought. Id. 21. Broadcaster attempts to establish editorial autonomy have ranged from opposition to the fairness doctrine to challenges to the enforcement of the FCC's indecency rules. See Syracuse Peace Council v. FCC, 2 F.C.C.R. 5043 (1987), aff'd, 867 F.2d 654, 656 (D.C. Cir. 1989), cert. denied, 493 U.S. 1019 (1990) (repealing the fairness doctrine). The history (not to mention the lengthy party list) of the vari- ous Action For Children's Television cases challenging the constitutionality of the Commission's indecency rules is good evidence of strong broadcaster opposition to the Commission's decision in 1987 to embark on a stringent enforcement pro- https://digitalcommons.law.villanova.edu/mslj/vol3/iss1/5 8 1996] Levi:A TNheT FI-CACB, IOnRdeTcIeOncNy, aPnOd ALnITti-IAcAboLrt ioAnD PVolEitRicTalI ASIdNveGrtising These broadcasters asked the FCC to allow the commercials to be channeled to hours of the broadcast day when children would be less likely to be in the audience, despite the constraints of the polit- ical advertising provisions of the Communications Act, because the advertisements were indecent or otherwise unsuitable for chil- dren.22 The candidates claimed that the broadcasters' reluctance to broadcast these advertisements was politically motivated: gram against the broadcast of indecency broadly defined. See Action for Chil- dren's Television v. FCC, 852 F.2d 1332, 1334-35 (D.C. Cir. 1988) [hereinafter ACT I]; Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), cert denied, 503 U.S. 914 (1992) [hereinafter ACT II]; Action for Children's Television v. FCC, 58 F.3d 654, 656 (D.C. Cir. 1995) (en banc) [hereinafter ACT I1], cert. denied, 1996 U.S. LEXIS 36 (Jan. 8, 1996). It should be noted that not all broadcasters aligned thefiselves with the sub- stantive arguments of the petitioning parties. In fact, the National Association of Broadcasters and the same coalition of broadcasters and public interest groups that joined in the ACT cases to challenge the post-1987 expansion of the FCC's enforcement of indecency standards took the position that the agency should not expand its definition of actionable indecency to include graphic anti-abortion ads. See, e.g., Joint Comments of Action for Children's Television at 3, MM Docket No. 92-254, filed in response to Request for Comments, In re Petition for Declaratory Ruling Concerning Section 312(a) (7) of the Communications Act, 7 F.C.C.R 7297 (1992) [hereinafter Joint Comments]; Colford, FCC Ruling, supra note 9; Harry A. Jessell, Broadcasters Oppose Widening Indecency Net to Include PoliticalA nti-Abortion Ad- vertisements, BROADCASTING, Feb. 1, 1993 at 54. The coalition's position, however, was consistent with the position permitting broadcaster discretion to make reason- able good faith judgments about when to broadcast these ads. Id. 22. The petitions took the position that the graphic depictions of abortions and fetuses were indecent and, as such, subject to the Commission's requirement that they be channeled to late night hours. See Letter to Vincent A. Pepper, Esq., and Irving Gastfreund, Esq., 7 F.C.C.R. 5599 (1992) [hereinafter Letter to Pepper and Gastfreund]; November Ruling, 9 F.C.C.R. at 7639. The Gillett petition re- quested that the Commission issue a declaratory ruling that "political uses, which the licensee determines in good faith to be indecent or otherwise unsuitable for children, may be channeled to day parts in which children do not constitute a significant audience." Gillett Petitionf or DeclaratoryR uling, supra note 5, at 10. Since channeling would be mandatory if the FCC were to find an advertisement inde- cent, the permissive wording of Gillett's petition suggests that Gillett was asking the FCC to declare that mandatory channeling should rest not on a Commission find- ing of indecency, but on a broadcaster's good faith belief. The result of such a standard would be minimal independent FCC review of the channeling decision. Similarly, the Kaye, Scholer petition requested a declaratory ruling that broadcast- ers could decline to broadcast "uses" during hours when there is a reasonable risk that children may be in the audience where such uses present graphic depictions of fetuses and where the licensee reasonably concludes, in good faith, that the graphic depictions are indecent under § 1464. Comments of Kaye, Scholer Fierman Hays & Handler at 2, MM Docket No. 92-254, filed in response to Request for Comments, In re Petition for Declaratory Ruling Concerning section 312(a) (7) of the Communications Act, 7 F.C.C.R. 7297 (1992) [hereinafter Comments of Kaye, Scholer] (describing Kaye, Scholer petition). See also Action for Children's Televi- sion v. FCC, 58 F.3d 654, 656 (D.C. Cir. 1995) (holding constitutional statute re- quiring broadcasters to channel indecent material and remanding to FCC for establishment of ten o'clock p.m. to six o'clock a.m. "safe harbor" for broadcast of indecency), cert. denied, 1996 U.S. LEXIS 36 (Jan. 8, 1996). Published by Villanova University Charles Widger School of Law Digital Repository, 1996 9