Federal Candidate Ad Entitled to Air Time; Cannot Be Censored

National news outlets are reporting that the NBC Network has asked presidential candidate Mitt Romney to stop using a television ad attacking Newt Gingrich that features former NBC News anchor Tom Brokaw.  The ad is available on the Mitt Romney campaign website and features Brokaw's reporting on ethics violations.

Some say the spot gives the impression that NBC is biased against Gingrich or in favor of Romney. As reported in the Wall Street Journal, Brokaw has said he is “extremely uncomfortable with the extended use of my personal image in this political ad.  I do not want my role as a journalist compromised for political gain by any campaign.”

So why can’t NBC owned and operated stations, or NBC-affiliated stations, simply say no to the ad and take it off the air? 

The reason is two-fold—first, Romney is entitled to “reasonable access” to station air time, and second, the “no censorship” rule applies to the Romney spot.

Federal law requires radio and TV stations to provide “legally qualified candidates” for federal office—including candidates for the offices of President and Vice President, the U.S. Senate, and the U.S. House of Representatives—with “reasonable access” to their broadcast facilities.  “Reasonable access” does not require stations to give free time to federal candidates, but it means that a station may not have a policy of refusing to sell or give a “reasonable” amount of time to federal candidates.

Additionally, the “no censorship” rule applies to a “use” by a “legally qualified candidate.”  A “use” means any positive appearance of a candidate whose voice or likeness is either identified or readily identifiable.  In this case, consistent with FCC staff decisions on the issue, Romney’s appearance and voice in the sponsorship identification at the end of the spot is sufficient to render this ad a “use” to which the “no censorship” rule applies.

Under the “no censorship” rule, unless the material broadcast is legally obscene or indecent, a station may not censor the content of a candidate’s broadcast even if it is libelous, a copyright violation, inflammatory, or otherwise offensive.  A station can insist on a compliant sponsorship identification to be included if it has not been (for example, “paid for by” and the name of the sponsor), but otherwise it may not censor or alter the spot (unless it is legally obscene or indecent).  

The “no censorship” rule would seem to put stations in the difficult position of being required to air political advertisements that expose them to legal liability—for example, for defamation or invasion of privacy.  On the contrary, under federal law, TV and radio stations cannot be held liable for the content of a “use” by a “legally qualified candidate.”  

Accordingly, stations are obligated to grant the Romney campaign committee “reasonable access” to their air time until the Romney campaign chooses to pull the spot.

Hawaii District Court Rejects Candidate's Request to Stop Televised Political Debate

The U.S. District Court for District of Hawaii issued an order on May 7, 2010, denying a federal candidate’s request to be included in a televised debate among the candidates for a seat in the U.S. House of Representatives. The order is available here.

Fourteen candidates are in the race to fill a vacant seat in the House. Television station KITV, Honolulu, Hawaii, in partnership with the League of Women Voters, chose three candidates to participate in the televised debate on May 7. One of the candidates who was not selected to participate filed a lawsuit against the station and sought a temporary restraining order (TRO) from the court to stop the debate from happening. The candidate generally argued in his TRO motion that the station had deprived him of his right to freedom of speech under the First and Fourteenth Amendments.

Candidate debates on TV or radio are generally governed by the Communications Act of 1934, as amended, and FCC regulations that implement that statute. The district court denied the Hawaii candidate’s request to stop the debate, first, because the governing statute, Section 315 of the Communications Act, does not recognize a private right of action to bring a lawsuit against a broadcaster related to a debate. The law instead requires a candidate to file a complaint with the FCC, which has jurisdiction over broadcast debates. 

The court also denied the request because it found there was no “state action” in the case – that is, no deprivation of a constitutional right by a government body or actor – because KITV is a privately owned company.  

The court compared the case to Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), in which the Supreme Court ruled that a televised candidate debate was a “nonpublic forum” from which a broadcaster was entitled to exclude a candidate on a reasonable, viewpoint neutral basis in the exercise of its journalistic discretion. (The Hawaii case is otherwise distinguishable because, in the AETC case, the television station was government-owned.) 

The court found that the Hawaii TV station selected participants in the debate on a candidate-by-candidate basis and based its decision in part on each candidate’s degree of public support. The station did not take the candidates’ viewpoints into account in making its selections. According to the court, “the current record supports the finding that Plaintiff was excluded not because of his viewpoint, but because he had not generated appreciable public interest.” With that finding, the court held the candidate was not likely to succeed on the merits of the case, so the issuance of a TRO to stop the debate was not justified.