People were shocked during the campaign when they learned that television stations ran a political commercial prepared by Barry Commoner that boasted an obscenity.
The shock waves were caused not so much by the fact that such commercials were produced and broadcast, but that an official of the Federal Communications Commission stated that the law required stations to broadcast the commercial without censorship.
This realization reflects the contradictory and often foolish results that are the byproducts of existing political broadcasting regulations. It is true that once a candidate is granted the use of a broadcast facility, either by buying time or by a ruling that he is entitled to "equal opportunity," the broadcaster may not censor a candidate. He can appear, undress, shout obscenities and play the ukelele, but the broadcaster cannot touch a millisecond of the video or audio tape. The legalism states that the candidate should be given total freedom to say whatever he chooses, no matter how offensive, libelous or obscene.
In most cases, this doesn't present a problem, since candidates strive to be as bland as possible and espouse moderate positions. However, numerous incidents have occurred recently in which candidates have used highly offensive racial epithets and libeled individuals who were not even running for political office. In the latter circumstance, the Supreme Court has ruled that the station cannot be sued. While the victim may sue the candidate, this action is fruitless since the fringe-party candidate is usually judgment-proof, and it makes no sense to engage in a lawsuit that will merely bring attention to an irresponsible charge.
A few years ago, the FCC prohibited a broadcast by station WBAI of a routine by comedian George Carlin that included seven words depicting sexual activity and bodily functions. The decision was subsequently upheld by the Supreme Court. My fantasy is that Carlin becomes a congressional candidate and produces a commercial containing the exact same routine placed in the exact same time spot. In this scenario, a broadcaster jeopardizes his license by not broadcasting it. The FCC is then confronted with a philosophical conundrum that would rattle the teeth of Descartes. On the one hand, you cannot, and, on the other, you have to.
The law also stipulates that a station may lose its license for repeated failure to allow reasonable access or to permit purchase of reasonable amount of time by a candidate in a federal election. What began as a provision to allow the broadcaster wide latitude of discretion has now turned into a massive regulatory scheme with the FCC knee-deep in such daily decisions as when a campaign begins, how much time is "reasonable" and what time of day is "reasonable." In addition, commercial broadcasters are only required to offer candidates the opportunity to purchase reasonable amount of time. When rich Candidate A purchases a large amount of time, the broadcaster only has to offer poor Candidate B an equal opportunity to purchase the same amount of time. This is equivalent to allowing poor people the same right as rich people to pay for abortions.
The complexity of political broadcasting regulations and the strange results they yield are underscored by the so-called "equal time" rules. The equal time rules (actually a misnomer, since the philosophical notion is "equal opportunity" and not strict equality of time) are designed to provide balance in a political campaign so that candidates or broadcasters cannot use the air waves to favor one candidate over another. Yet the rules require that Candidate A's appearance on a late-night radio talk program with little or no audience be considered a use of a broadcast facility and that the opposing candidate be afforded equal opportunity. However, Congress and the FCC have determined that when Candidate A appears on a regularly scheduled television news program with a much wider audience, the appearance is exempt.
The FCC also has ruled that any appearance by a candidate counts as a "use." The broadcasting of an old motion picture of an actor who ran for the highest office in our land created an equal opportunity for his opponent. I have always wondered what that would have meant for Jimmy Carter. Would the broadcaster have had to give him millions of dollars to make his own movie? To those who argue that equal time brings about some "rough sense of equity," I would counter with the barnyard epithet used in the Commoner commercial.
The presidential debates are a good example of this "rough equity." If a broadcaster invites Candidates A and B (read Regan and Carter) into a studio, hires a director, turns on the lights and cameras, that is considered as use and creates an obligation to provide equal opportunity for Candidate C (read Anderson). If Candidates A and B march across the street to a theater, use the same lights, cameras and director, but are invited by the League of Women Voters (or any other outside group, from the Economics Club of Detroit to the Boy Scouts), we have mystically created what is called a "bona fide news event," and the broadcaster has no obligation to Candidate C. Now, these events are so "bona fide" that in the first Carter-Ford debate in 1976 when ABC lost its sound for 27 minutes, the two candidates stood in Philadelphia's Walnut Street Theater glaring at each other and more than 90 million viewers until the sound was restored. That hardly smacked of a "rough sense of equity" for Eugene McCarthy, 1976's version of John Anderson.
What to do about this mess? Perhaps we might throw out the whole panoply of conflicting, often contradictory, rules and let the broadcaster make the same kind of journalistic judgments made by newspaper editors. The underlying theory is that emerging technological developments such as cable, direct broadcast satellite and video discs make the FCC rules irrelevant and that whatever abuses might occur would be corrected by the marketplace forces of public opinion.
If we do not believe that emerging technologies will develop fast enough or be as widespread as broadcasting, and we do not have an inherent trust in the broadcasters, we could adopt the opposite approach and vigorously enforce the rules without endless Kafkaesque regulations. If we want an equal time rule, let's have one and throw out contrived concepts like "bona fide" news events.
The third approach is to have each broadcaster block out a space of time during a prearranged calendar period that would be turned over to political candidates for whatever purpose they deem appropriate. They could debate, talk, cajole and be interviewed. Under this proposal, candidates would be treated on a first-come, first-served basis, and all political commercials would be banned.
No matter which solution seems appropriate, it is clear that the crazy-quilt method of regulating something as fundamental as how political candidates gain access and communicate to their constituencies is unacceptable. At a minimum, both the FCC and Congress, at the insistence of the press and the public, should conduct an extensive dialogue to examine alternatives that will being order out of the current chaos.