Unreasonable Access: Disguised Issue Advocacy and the First Amendment Status of Broadcasters Kerry L. MonroeARTICLE - Fordham Intellectual Property, Media & Entertainment Law Journal
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Unreasonable Access: Disguised Issue Advocacy and the First Amendment Status of Broadcasters
Kerry L. Monroe
ARTICLE

  The full text of this Article may be found by clicking the PDF link on the right.

 

INTRODUCTION

 

[P]

erched atop a mountain in rural West Virginia is a large, graying, cinderblock bunkhouse that served as the unlikely shooting location for over a dozen television commercials in the months prior to the 2012 federal primary and general elections.1 This is the compound of Randall Terry, founder in the 1980s of the notorious antiabortion organization Operation Rescue, known for massive sidewalk protests of women’s clinics and attention-seeking stunts that included delivering a dead fetus to Bill Clinton at the 1992 Democratic National Convention.2 Following the contentious splintering of Operation Rescue in the 1990s and accompanying legal and financial troubles, Terry appears to have lost much of his influence within the anti-abortion activism community.3 But while he may no longer attract enormous numbers of protesters to stand alongside him, he and his allies are learning to reach more listeners with fewer speakers. Where they once attracted media coverage of the protests they staged, they now seek direct access to the airwaves.4

 

During recent election seasons, Terry and his allies have presented themselves as candidates for federal elective office and have invoked statutory candidate access rights to force broadcasters to air graphic anti-abortion television advertisements—ads that many broadcasters would otherwise have refused to carry for a variety of reasons.5 These reasons included concerns about content that could misinform or antagonize viewers and material in the ads that was potentially defamatory or allegedly violated copyrights held by third parties.6 Ordinarily, members of the public have no right to speak on broadcast television stations, whether such access is sought for commercial, political, or other purposes. Broadcasters have no statutory or regulatory obligations to permit general public access to their stations, and, moreover, the Supreme Court has indicated that such a right-of-access system could be constitutionally problematic.7 Candidates for federal elective office, however, do have a statutory right to purchase, at preferential rates and without broadcaster censorship, a “reasonable” amount of airtime on broadcast television stations during the windows preceding primary and general elections.8 Although admittedly uninterested in winning any elections,9 Terry spotted in these political broadcasting rights an opportunity to gain inexpensive, forced access to broadcast stations to “use . . . FCC laws for federal candidates to bring America face-to-face with [abortion].”10

 

Following a 2010 “prototype” effort that he deemed a resounding success,11 Terry recruited fellow anti-abortion activists to present themselves as write-in or ballot candidates in federal races in order to buy airtime on broadcast television stations.12 In 2012 a group of twelve of these activists, including Terry himself, purchased time in at least eighteen media markets.13 The races entered by these “candidates” appear to have been chosen largely according to a strategy having more to do with the potential media impact of their ad buys than with any interest in holding a particular office or representing a particular set of voters.14 For example, during the general election, Terry was on the ballot for Congress in the heavily populated 23rd district of Florida (despite being a West Virginia resident),15 and was also on the ballot for President in three “safe Romney states” that border swing states—West Virginia, Kentucky, and Nebraska.16 In this way, Terry was able to invoke the candidate reasonable access privilege to buy airtime on television stations in major media markets in neighboring swing states, so long as the stations also broadcast into some portion of the state where he was on the ballot. By virtue of being on the ballot in West Virginia, for instance, Terry sought to air television ads in portions of Virginia, Ohio, Pennsylvania, Maryland, and the District of Columbia.17 Some of Terry’s allies appear to have chosen the districts in which they sought placement on the ballot based on similar audience-targeting considerations.18 The ads aired by the activists, too, reflected an interest in expressing the group’s views on abortion, rather than in campaigning for office. The template-style ads, each shared by most or all of the activists, typically contained no image or mention of the “candidate,” the state in which he or she was running, or the office he or she purported to seek, other than in the mandatory disclosure at the end of the ad.19

 

Unsurprisingly, numerous broadcast stations resisted airing these advertisements.20 Many broadcasters worried that they would antagonize viewers by airing graphic ads that some would not realize the broadcasters were compelled by law to carry.21 But there was a deeper concern here, as well—one that repeatedly surfaces in disputes over broadcast regulation. The Supreme Court has recognized that broadcasters have broad, constitutionally protected discretion in making programming decisions.22 On that basis, broadcasters often have viewed restrictions on the content they air or requirements that they air content not of their choosing as serious incursions on their editorial freedom. Indeed, broadcasters had previously made such arguments in challenging the statutory reasonable access right for federal candidates.23 With regard to orders for time placed by Terry and his allies, many broadcasters viewed extending reasonable access rights to individuals not seeking office as a significant expansion of this “limited”24 public service obligation, and one that had the potential to become a significant burden on broadcasters’ editorial discretion. Moreover, due to the equal-opportunities rights that candidates have with respect to airtime purchased by others in the same race, an increase in the number of pretextual candidates25 could crowd out some speech of genuine candidates by decreasing the amount of airtime available to the latter group.26

 

However, in responding to October 2012 complaints filed by Terry and his allies, which alleged that a number of stations had violated the political broadcasting rules by refusing them access, the Federal Communications Commission (the “FCC” or the “Commission”) did not address broadcasters’ First Amendment arguments regarding the permissible scope of candidate access rights. Without appearing to consider the constitutional dimension of its decisions, the Commission focused on relatively narrow legal issues, unique to the facts of each case, to find that it was unreasonable for the stations to deny access—even where circumstances strongly suggested that the purported candidates were not actually seeking office and had no intention of becoming legally qualified to take office.27

 

Arguably displaying discomfort with its role of determining—or of overseeing broadcasters in determining—which individuals are entitled to candidate political broadcasting rights, the Commission effectively created a bright-line rule requiring broadcasters to grant access to any person on the ballot for a federal race in the relevant geographic area.28 This prophylactic rule has the benefit of preventing broadcasters from refusing to sell time to a candidate because they do not like what he has to say or because they perceive that the candidate has little chance of winning.29 However, the rule also has the cost of forcing broadcasters, who are normally understood to exercise broad editorial discretion protected by the First Amendment, to air messages from some individuals who do not seek to hold office.

 

In this Article, I examine whether imposing such a prophylactic rule on broadcasters—rather than permitting them to exercise judgment, based on neutral factors such as those permitted in the context of write-in candidates,30 to determine whether an individual is entitled to reasonable access—can be constitutionally justified in light of broadcasters’ First Amendment status and the legislative purposes of and constitutional justifications for the reasonable access statute. This Article is the first to consider this question and is also unique in taking an in-depth look at the current state of political broadcasting law, particularly in light of the changes that have taken place in the market for political advertising since the Supreme Court’s decision in Citizens United v. FEC.31 Although much attention is being paid, both in legal academia and in the mainstream press, to the money flowing into elections from campaign contributions, very little attention is paid to the legal frame-work governing the primary way that money is spent—on television advertisements.

 

Scholars who have written more generally on the intersection of broadcast regulation and the First Amendment have frequently been unimpressed by the Supreme Court’s justifications—most famously the scarcity rationale elaborated in Red Lion Broadcasting Co. v. FCC32—for placing requirements on broadcasters that could not normally be placed on other speakers.33 Some, most notably Owen Fiss and Cass Sunstein, have proposed an alternative justification for extending lesser constitutional protections to broadcasters—the dissemination of information and promotion of public debate necessary for democratic decision-making.34 Under their theories, the central value of the First Amendment is furtherance of the democratic process, and any autonomous speech interests of individuals, including broadcasters (and, presumably, other media owners who come to play a similarly significant role in democratic discourse), are subordinate.

 

Others, like Christopher Yoo in recent years, have argued that, given the technological convergence of communications media, there simply is no longer any adequate justification that would allow courts, Congress, and the FCC to treat broadcasters differently from other media owners.35 Accordingly, “the First Amendment’s traditional respect for individual autonomy and traditional suspicion of government intervention,” requires that the higher standard of scrutiny applied to regulation of other media be applied to broadcasting as well.36

 

Still others have argued that our democracy is best served by a system in which various portions of the press are afforded differing degrees of autonomy under the First Amendment. Lee Bollinger, who has been credited with originating this idea,37 has argued that while traditional print media should be maintained as an unregulated “benchmark” of the free press, newer electronic media, including broadcast radio and television, may serve as a laboratory of regulatory experimentation in which democracy-furthering rules, such as candidate access requirements, may be tested.38 C. Edwin Baker has argued that a complex democracy such as ours requires various media to perform different functions, and, consequently, to be regulated differently.39 Largely agreeing with Professor Baker, Jack Balkin has argued, “free speech values—interactivity, mass participation, and the ability to modify and transform culture— must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights.”40

 

Nonetheless, unlike Professors Fiss and Sunstein, this final group of scholars recognizes that regulation of new media must also take into account other First Amendment values, including the autonomy interests prized by Professor Yoo. Referring to the FCC ban on indecent language, Professor Bollinger urges the Supreme Court to end the FCC’s “venture in morals regulation in broadcasting” because “[i]t is inconsistent with the First Amendment’s general commitment to a system of extraordinary protections against censorship.”41 Acknowledging, at least implicitly, that media owners come to the table possessing the same autonomy interests as other private speakers, Professor Balkin describes broadcast regulation as “a quid pro quo, or contractual arrangement, [that] is constitutional to the extent that it promotes the values of a democratic culture.”42 Accordingly, a broadcast regulation should only be considered constitutional to the extent that “there is a clear nexus between the goals of the regulation and the purposes behind the hybrid system”—the comprehensive regulatory scheme that has allowed a small number of broadcasters to hold licenses not open to all in return for accepting various public service obligations and regulations.43

 

This Article builds on the theoretical foundations initiated by Professors Bollinger, Baker, and Balkin by exploring political broadcasting law within the larger context of the constitutional values underlying our system of broadcast regulation. I demonstrate that, from the inception of broadcast regulation, Congress has engaged in a balancing act, seeking not only to ensure that the broadcast medium would serve the public interest, but also to protect the medium from pervasive government control. Consistently with this legislative vision, the Supreme Court has, over the last thirty years, recognized that not only the public interest, but also broadcasters’ First Amendment speech rights, must be taken into account when considering the constitutionality of granting members of the public, including candidates for public office, access to broadcast stations.44 Nonetheless, the Court has provided little guidance as to how this should be done. I argue that because Congress chose to use a system of predominantly private broadcasters to pursue the democratic First Amendment values embodied in the Communications Act—and because many of the requirements placed on broadcasters would normally be understood to violate the First Amendment rights of private speakers—courts should insist that the government not burden substantially more broadcaster speech than necessary to achieve its aims. This is particularly true where there are effective and low-cost alternatives to a burdensome policy.

 

In Part I, I describe the framework of political broadcasting law and regulations and explore the legislative history of reasonable access and the constitutional justifications the Court has given for upholding the provision against a First Amendment challenge by broadcasters. I place the Court’s only ruling on reasonable access, CBS, Inc. v. FCC,45 in the context of earlier and later cases considering the First Amendment status of broadcasters. In examining this legislative and judicial history of broadcast regulation, particularly with regard to access rights, I show that tension has always existed between serving the First Amendment needs of the public and protecting the First Amendment rights of broadcasters.

 

In Part II, I contrast the legal treatment of federal candidates with that of non-candidate political advertisers, arguing that incentives arising from political broadcasting law and market conditions for non-candidate political advertising cause a strategy like Terry’s to be increasingly attractive for individuals seeking to broadcast their political views. I then discuss the FCC’s 2012 decisions involving Terry and his allies, showing that the FCC’s failure to address (and perhaps even fully to perceive the existence of) the First Amendment question raised by broadcasters illustrates the uncertainty created by the current state of case law, with regard to how competing First Amendment values should be weighed in the area of broadcast regulation.

 

In Part III, I observe that, in light of the history and purposes of broadcast regulation, as well as the development of case law since Red Lion,46 a conception of broadcasters as trustees subject to extensive government regulation in furtherance of the public interest is far too simplistic. I argue that, under a better understanding of broadcast regulation, Congress has structured its regulatory scheme so as to incentivize broadcasters to produce coherent, balanced, and informative programming—content that is valuable to a democratic conception of the First Amendment and that is likely to be underproduced by the market. However, because Congress has chosen to use private speakers to carry out the essential tasks of informing the public and fostering public discussion and, indeed, because freedom from government control is necessary to these tasks, the First Amendment requires that the FCC maintain a close fit between the legislative ends it is tasked with furthering and the means it chooses for doing so.

 

Finally, I return to the FCC’s policy in its October 2012 decisions, considering the potential the prophylactic rule has both to interfere with broadcasters’ editorial freedom and also to reduce the opportunities for genuine candidates to speak directly to the public through the broadcast medium. In particular, because broadcasters must take into account the number of federal candidates who are eligible for reasonable access when deciding how much time to make available to each candidate, the Commission’s requirement that broadcasters grant access to all candidates on the ballot, including pretextual ones, has significant potential to lead to the crowding out of genuine candidates’ speech. I suggest an alternative policy—similar to that already in place in the context of write-in candidates—that would better achieve the legislative purposes of reasonable access and would burden less broadcaster and candidate speech activity. Under my approach, the Commission would permit broadcasters to evaluate evidence of campaigning activities in order to determine whether an individual on the ballot is a “bona fide candidate” entitled to reasonable access. This approach would help limit candidate political broadcasting privileges to those seeking to gain public office, rather than extending them to those who are simply seeking to gain access to a particularly effective platform.

 


 

* Ph.D. candidate in Law, class of 2016, Yale University; J.D., 2010, University of Michigan Law School. I would like to thank Floyd Abrams, Jack Balkin, Vince Blasi, Molly Brady, Rebecca Crootof, Zach Herz, Eric Fish, Robert Post, Richard Primus, Reva Siegel, Gordon Silverstein, Rory Van Loo, and participants in the 2014 Freedom of Expression Scholars Conference at Yale Law School for their comments on earlier drafts of this Article. In the interest of full disclosure, I should note that I represented the broadcasters who were subject to the October 2012 FCC decisions discussed in this Article, along with my former colleagues at Covington & Burling LLP. Accordingly, I would also like to thank Kurt Wimmer, Eve Pogoriler, and Dustin Cho for their efforts in the trenches alongside me.

 


  1. See Matt Labash, Randall Terry Shoots an Ad, Wkly. Standard, Oct. 22, 2012, http://www.weeklystandard.com/articles/randall-terry-shoots-ad_654411.html [http://perma.cc/FC48-DKHL].

  2. Id.; see also Jacqueline L. Salmon, Antiabortion Leader Randall Terry Returns, Using Same Old Incendiary Tactics, Wash. Post, July 15, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071403317.html [http://perma.cc/GVU6-RCBW].

  3. See Salmon, supra note 2.

  4. Direct access also carries with it the benefit of controlling one’s message. See Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. Rev. 1, 10 (2004) (“[I]n a world dominated by mass media, the recurring problem for people who want to speak effectively and reach large numbers of people is how to gain access to an effective podium. People can purchase access if they own a significant amount of property; in the alternative, they can stage media events to draw the mass media’s attention. In the latter case, however, speakers cannot easily control their message.”).

  5. See Jennifer Preston, Randall Terry Loses His Delegate to the Democratic Convention, N.Y. Times Blog (Mar. 16, 2012, 8:58 PM), http://thecaucus.blogs.nytimes.com/2012/03/16/randall-terry-loses-his-delegate-to-the-democratic-convention/?_php=true&_type=blogs&_r=0 [http://perma.cc/3UXH-B5ED].

  6. Broadcasters take a number of considerations into account when evaluating orders for time by commercial and political advertisers, including concerns about misinforming or antagonizing viewers, failure of ads to meet certain legal requirements, including Federal Elections Commission and Federal Communications Commission rules pertaining to sponsorship disclosure, and station liability resulting from publication of defamatory material or material violating intellectual property rights of third parties. The ads aired by Terry and his allies in 2012 raised a number of these concerns. See, e.g., Letter from Charles J. Harder, Counsel for Samuel L. Jackson, to WPLG (Oct. 15, 2012) (on file with author) (alleging that statements made in a Terry ad aired by the station were defamatory of Mr. Jackson); Letter from Joseph E. Sandler, Counsel for Jewish Council on Education and Research, to Station Manager, WPLG (Oct. 14, 2012) (on file with author) (alleging that the use of video in a Terry ad violated the Council’s copyright).

  7. See Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 126–27 (1973) (expressing concerns that broad public access rights for individuals or groups wishing to discuss public issues would require significant Federal Communications Commission oversight of the day-to-day operations of broadcasters, including “deciding such questions as whether a particular individual or group has had a sufficient opportunity to present its viewpoint and whether a particular viewpoint has already been sufficiently aired”); see also Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 673–74 (1998) (noting that broad public rights of access would be inconsistent with the editorial discretion broadcasters exercise in the selection and presentation of their programming).

  8. See 47 U.S.C. §§ 312(a)(7), 315(a), 315(b) (2012). The political broadcasting statutes and regulations are discussed in detail in Part I.

  9. Preston, supra note 5.

  10. Kevin Derby, Pro-Life Activist Randall Terry Looks to Defeat Barack Obama in 2012 Dem Primaries, Sunshine State News (Jan. 18, 2011, 11:28 AM), http://www.sunshinestatenews.com/story/pro-life-activist-randall-terry-looks-defeat-barack-obama-2012-dem-primaries [http://perma.cc/2YCS-L7N3].

  11. In 2010, Terry ally Missy Smith was on the ballot as the Republican candidate for the District of Columbia non-voting congressional seat, despite a request from D.C. Republican Party leadership that she not run. Her entire “campaign” effort consisted of purchasing broadcast television airtime to air graphic anti-abortion advertisements written and produced by Terry. Tim Murphy, Aborted Fetuses to Star in 2012 Election Ads, Mother Jones (Nov. 17, 2011), http://www.motherjones.com/politics/2011/11/graphic-anti-abortion-ads-randall-terry-fcc [http://perma.cc/SQ34-R5AQ]; Mike DeBonis, Smith’s Anti-abortion Ads Bring Culture Wars Into D.C. Delegate Race, Wash. Post (Oct. 28, 2010, 6:58 PM), http://www.washingtonpost.com/wp-dyn/content/article/2010/10/28/AR2010102806339.html [http://perma.cc/7YNE-E4TB]; Dugald McConnell & Brian Todd, Graphic Anti-Abortion Ads Air on Washington Stations, CNN (Oct. 27, 2010, 5:26 AM), http://www.cnn.com/2010/POLITICS/10/26/anti.abortion.ads/index.html [http://perma.cc/43Q3-QQL2].

  12. See Murphy, supra note 11; see also Press Release, Terry for President, Recruiting Candidates to Suppress Obama’s Vote in Florida – Key to Obama Losing Florida is Suppressing his Catholic Democrat Vote (May 14, 2012), available at http://www.christiannewswire.com/news/1203019704.html [http://perma.cc/R9QT-9THA].

  13. Press   Release,   Terry   for   President   Campaign   Committee,   Graphic Halloween/Horror ‘Obama Nightmare’ Ad Airs in 7 Battleground States (Oct. 31, 2012), available at http://www.christiannewswire.com/index.php?module=releases&task=view&releaseID=70771 [http://perma.cc/MS6G-3NL3]. A search of the FCC database of station political files at stations.fcc.gov shows that Andrew Beacham placed orders on stations in the Louisville Nielsen Designated Market Area (Louisville “DMA”) and Evansville DMA; Gary Boisclair in Minneapolis-St. Paul DMA (during the primary election window only); David Lewis in Cincinnati DMA; David Macko in Cleveland DMA; Angela Michael in St. Louis DMA; Randall Terry in Amarillo DMA, Boston DMA, Chicago DMA, Cincinnati DMA, Denver DMA, Miami-Ft. Lauderdale DMA, Nashville DMA, Pittsburgh DMA, Washington, D.C. DMA, West Palm Beach DMA; and Stan Vaughan in Las Vegas DMA. The results of this search are significantly underinclusive, largely due to circumstances related to the 2012 implementation of FCC rules requiring station political files to be made available online. In the press release cited in this footnote, Terry claims that Alan Aversa and George Krail also ran the ads he produced in Iowa and Western Illinois; Virginia Fuller ran them in San Francisco, California; Russell Best ran them in Reno, Nevada; and Daniel Botelho ran them in Boston, Massachusetts and New Hampshire.

  14. See, e.g., Press Release, supra note 12 (“‘The easiest, most cost effective way . . . to shake Christians from their slumber, and have “a teaching moment” that brings them back to God’s priorities – is to show images and use words that reflect God’s priorities in TV ads. We must show the babies’ mangled remains. And legally, the only way you and I are going to do that en masse is through TV commercials we can run as federal candidates.’”).

  15. Terry FEC Form 2, Statement of Candidacy, (June 12, 2012), available at http://docquery.fec.gov/pdf/865/12030821865/12030821865.pdf [http://perma.cc/EHF7-F6XW]. Constrained by the eligibility requirements for federal elective office enumerated in the U.S. Constitution, states may not limit ballots for Representative to those who currently reside in the state. See generally U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). Article I, section 2 states: “No person shall be a Representative . . . who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” In order to meet this requirement, a person must reside in the state he is representing by Election Day. See Cases Of Contested Elections In Congress 224–25 (M. Clarke & D. Hall eds., 1834); see also Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006).

  16. Presidential Candidates on the 2012 General Election Ballots of Each State and the District of Columbia, http://www.fec.gov/pubrec/fe2012/2012presgecands.pdf  [http://perma.cc/3TE3-CVSP](last visited Sept. 26, 2014); Letter from Randall Terry, Exhibit A to Gannett Co., Inc. Petition for Reconsideration in FCC Matter DA 12-1734, Nov. 2, 2012 (on file with author). Terry avoided being on the ballot for President in “swing states” so as not to attract any voters away from Mitt Romney in states where he expected the race between Romney and President Obama to be close. Id. Thus, he was very determinedly trying not to win votes with his “candidate” ads—his target audience was those in swing states who could see his ads but could not vote for him.

  17. Letter from Randall Terry, supra note 16.

  18. For example, David Lewis, a resident of the 2nd Congressional district of Ohio, was on the ballot against John Boehner in the 8th district of Ohio for the Republican primary and in the 4th Congressional district of Kentucky as an independent for the general election, allowing him to purchase airtime on television stations in nearby Cincinnati, Ohio and in Louisville, Kentucky. Lewis FEC Form 2, Statement of Candidacy (Feb. 13, 2012), http://docquery.fec.gov/pdf/456/12030741456/12030741456.pdf [http://perma.cc/SSG6-54XU]; Lewis Amended FEC Form 2, Statement of Candidacy (Oct. 9, 2012), http://docquery.fec.gov/pdf/074/12030893074/12030893074.pdf [http://perma.cc/4GFG-5FRC]; Lewis WLWT-TV Cincinnati Sales Contract (Oct. 25, 2012), https://stations.fcc.gov/collect/files/46979/Political%20File/2012/Federal/US%20House/KY-04/DAVID%20LEWIS/lewis%2010%2031%20(13512765087331).pdf ; Lewis WAVE-TV Louisville Sales Contract https://stations.fcc.gov/collect/files/13989/Political%20File/2012/Federal/US%20House/KY-04/David%20Lewis/Lewis-Congress%20Oct%2019%20(13505898045067).pdf.

  19. Labash, supra note 1.

  20. See, e.g., In re Terry, 27 FCC Rcd. 598, 598 (Feb. 3, 2012); In re Randall Terry for President, 27 FCC Rcd. 13418, 13418 (Oct. 31, 2012); Response of WPLG to FCC Complaint by Randall Terry, Oct. 26, 2012 (on file with author); WSCV and WTVJ Brief in Support of WPLG-TV, Oct. 28, 2012 (on file with author); Response of WFLX (TV) to FCC Complaint by Randall Terry, Nov. 15, 2012 (on file with author); see also Press Release, Randall Terry, Are Catholic Voters the ‘New Negro’ of the Democratic Party? Will FCC Protect Pro-life Catholic Democrats from Political Segregation?, Feb. 2, 2012, http://www.christiannewswire.com/news/1846918853.html [http://perma.cc/4865-B7L3]; Press Release, Terry for President Campaign Committee, FCC Rules Washington DC Stations Must Run Graphic Abortion Ads of Terry for President, Nov. 1, 2012, http://www.christiannewswire.com/news/5678770786.html [http://perma.cc/G7RV-VLUQ].

  21. Telephone Interview with Kurt Wimmer, Partner, Covington & Burling LLP, Counsel for Gannett, Co., Inc., in Washington, D.C. (Apr. 2, 2014).

  22. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 673 (1998) (“As a general rule, the nature of editorial discretion counsels against subjecting broadcasters to claims of viewpoint discrimination.”).

  23. See, e.g., CBS, Inc. v. FCC, 453 U.S. 367 (1981) (upholding reasonable access as a limited incursion on broadcasters’ editorial discretion, justified as an attempt by Congress to balance the First Amendment rights of federal candidates, the public, and broadcasters, while ensuring that the airwaves are used in the public interest).

  24. Id. at 396.

  25. I use the term “pretextual candidates” throughout this Article to refer to individuals who gain ballot access or present themselves as write-in candidates for a federal race in order to gain statutory political broadcasting rights, rather than in an attempt to gain office, or even to attract votes to themselves. While not all real-world situations are easily categorized, the basic distinction between a genuine candidate and a pretextual candidate is whether “the ads were made to support the campaign or the campaign was made to support the ads.” McConnell & Todd, supra note 11.

  26. In determining how much access is reasonable to afford one candidate, broadcasters take into account the number of other candidates in the race who could potentially make reasonable access and equal-opportunities claims. See FCC Political Broadcasting Primer, 100 F.C.C.2d 1476, 1523 (1984).

  27. See Telephone Decision of Robert Baker, Mass Media Bureau Policy Division Assistant Chief for Political Broadcasting, Federal Communications Commission, in the matter of the informal complaint of Andrew Beacham against station WAVE (Oct. 18, 2012) (a person on the ballot for Congress in one state who lives in another state is considered “qualified under the applicable local, State or Federal law” under 47 C.F.R. § 73.1940 by virtue of being on the ballot, even where he does not currently meet constitutional residency requirements to take office and has provided no evidence of or assurance of intention to relocate); see also Complaint of Randall Terry for President, 27 FCC Rcd. 13418 (Oct. 31, 2012) (where Randall Terry was on the ballot in West Virginia and the digital Washington, D.C. station refused him access, relying on a terrain- dependent coverage map to show that it did not broadcast a signal into West Virginia, station should instead have used a methodology analogous to that used in determining the contour of analog television stations and should have granted access to Terry).

  28. In an informal decision considering a complaint by Andrew Beacham, an Indiana resident who was on the ballot for Congress in Kentucky, FCC political broadcasting staff stated that in evaluating whether a person “is qualified under the applicable local, State or Federal law to hold the office for which he or she is a candidate” for purposes of FCC political broadcasting rules, the Commission’s policy is to defer to a state election agency’s decision to place that person’s name on the ballot. See Complaint of Randall Terry for President, 27 FCC Rcd. 13418 (Oct. 31, 2012). Beyond the question of whether deference to state agencies on questions of federal law is appropriate in this context, the Commission’s policy is troubling in at least two respects. First, it appears to assume, incorrectly, that the requirements a person must meet for federal ballot access are the same as the requirements to actually hold office in the event that one is elected. See supra note 15. Second, even with regard to ballot access requirements, state election agencies do not typically investigate whether an applicant for federal ballot access actually meets the relevant federal requirements.

  29. See Becker v. FCC, 95 F.3d 75, 81 (D.C. Cir. 1996) (striking down FCC policy permitting broadcasters to channel a candidate’s graphic anti-abortion ads to times when children were less likely to be in the audience because such a policy granted broadcasters standard-less discretion that would allow them to discriminate according to an ad’s message); Political Broadcasting Primer, supra note 26, at 1486 (broadcast stations may not refuse to grant reasonable access because they perceive that the candidate has low odds of winning).

  30. In the context of write-in candidates, broadcasters may ask an individual claiming a right to reasonable access to make a “substantial showing of bona fide candidacy.” 47 C.F.R. §§ 73.1940(b)(2), 73.1940(e)(2) (2013). Such a showing includes “evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning . . . . includ[ing] making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters.” Id. § 73.1940(f). Notably, the single 2012 Terry decision the FCC made in favor of the broadcaster involved a situation in which he purported to be a write-in candidate but had failed to make a substantial showing of bona fide candidacy. In re Terry, 27 FCC Rcd. 598 (Feb. 3, 2012).

  31. 558 U.S. 310 (2010).

  32. 395 U.S. 367 (1969).

  33. See, e.g., Lee Bollinger, Images Of A Free Press 87–97 (1991); Lucas Powe, American Broadcasting And The First Amendment 197–215 (1987); Christopher Yoo, The Rise and Demise of the Technology-Specific Approach to the First Amendment, 914 Geo. L.J. 245, 266–306 (2003).

  34. See Owen Fiss, Liberalism Divided 13–17, 36–38 (1996); Cass Sunstein, Democracy And Free Speech 18–20 (1995).

  35. See Yoo, supra note 33, at 355–56.

  36. Id.

  37. See C. Edwin Baker, Media, Markets, and Democracy 188 (2002).

  38. See Bollinger, supra note 33, at 85, 120.

  39. Baker, supra note 37, at 149, 187–92. According to Professor Baker, in a complex democracy, interest groups require media that will help mobilize people and promote their divergent interests. But complex democracy also requires “inclusive, nonsegmented media entities[] that support a search for general societal agreement on common goods.” Id. at 148–49.

  40. Balkin, supra note 4, at 44 n.74.

  41. Lee Bollinger, Uninhibited, Robust, and Wide-Open: A Free Press for a New Century 127 (2010).

  42. Balkin, supra note 4, at 44 n.74

  43. Id.

  44. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 675 (1998); FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984); CBS, Inc. v. FCC, 453 U.S. 367, 394 (1981); CBS, Inc. v. Democratic Nat’l Comm’n, 412 U.S. 94, 117 (1973).

  45. 453 U.S. 367 (1981).

  46. 395 U.S. 367 (1969).

Article by

Kerry L. Monroe*

Vol 25 Book 1

25 <span style="font-variant: small-caps;">Fordham Intell. Prop. Media & Ent. L.J.</span> 117

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