How Fair Is Sinclair's Doctrine?
Is John Kerry entitled to avenge his Stolen Honor?
Sinclair Broadcasting on Tuesday modified its plans to run a program centered around Stolen Honor, a 42-minute documentary film highly critical of John Kerry's record in Vietnam. Each of the company's 62 stations—which include many swing-states affiliates of Fox, ABC, NBC, and CBS—had been instructed to air the program in evening hours this week. Now the company—whose executives have given heavily to President's Bush campaign—says the film will be truncated and aired as part an hourlong newscast in 40 markets on Friday, Oct. 22. The Kerry campaign argued that Sinclair needed to grant equal time to their supporters. A grass-roots campaign urging a boycott of the company's advertisers claimed victory after Sinclair changed its stance yesterday. The legal question remains: Can a broadcaster air a partisan film in the final weeks of an election campaign without granting equal time to the other side?
There are least three doctrines that might apply to this situation. The first is the "fairness doctrine" of the Federal Communications Commission, which required broadcasters to grant reply time to those who said their views were criticized. That rule was killed in 1987. The second are two corollaries of the doctrine—the "personal attack" rule and the "political editorial" rule—vestiges of the fairness doctrine that survived a while longer and then died in 2000. The third is the "equal time" law for political candidates, which still exists but probably doesn't apply to Sinclair because the candidate featured in the film was Kerry, not Bush.
The "fairness doctrine" dates back to 1927 and was premised on the notion that electromagnetic frequencies, being "scarce," needed to be rationed through a government-granted license. (It took economist Ronald Coase to note, three decades later, that airwaves are no more scarce than pulp and printing presses.) Station owners were thus periodically licensed as "public trustees" and obligated to either air different points of view, or return their spectrum. Hence the nascent broadcasting medium was never allowed to develop with the full panoply of First Amendment protections for opinion, commentary, and outright partisanship, as were newspapers.
The Supreme Court's decision in Red Lion v. FCC in 1969 was the high-water mark for this view. In 1964, a minister who owned a radio station in Red Lion, Penn., sold 15 minutes for $7.50 to the Rev. Billy James Hargis for his Christian Crusade program, which aired on 200 stations. Hargis then took two minutes of his program to criticize Fred Cook, author of Goldwater—Extremist on the Right. Cook complained to the FCC and demanded equal time to respond. The broadcaster offered him 15 minutes for $7.50, but Cook declined, demanding free airtime under the doctrine and its "personal attack rule." The FCC granted him the free time, and the justices unanimously sustained the doctrine on the grounds that the airwaves are scarce.
Under President Ronald Reagan, the FCC and the courts finally killed the fairness doctrine in 1987, arguing that it chilled free speech. But the "personal attack" rule and the "political editorial" rule lingered on in an ambiguous legal state until 1998—when a divided FCC couldn't agree on how to justify these rules without the fairness doctrine. Two years later, the federal appeals court in Washington, D.C., said, drop them. And they were dropped.
Since 1937, Congress has also enacted other, still-valid laws stipulating equal time for a candidate when his rival is sold or granted TV time—unless the broadcaster is doing a "bona fide" newscast, interview, or news documentary where the candidate's appearance is "incidental" to the film. The rule aims to force broadcasters to sell advertising time equally but doesn't seek to interfere in a broadcasters' news judgment. This is the rule that would allow Kerry a free hour to reply if Sinclair gave an hour of airtime to Bush. But since Kerry is the subject of Stolen Honor, the rule wouldn't force Sinclair to give further time to him. Such a free broadcast might also trigger campaign-finance rules barring corporations from contributing to candidates—which the DNC says Sinclair was essentially doing in airing Stolen Honor.
The last stand for Kerry's lawyers is the little-known "Zapple Doctrine" of 1970—a corollary of the "equal time" law. Nicholas Zapple, an aide to Rhode Island Democratic Sen. John Pastore, asked the FCC for airtime to respond to supporters of John McLaughlin, the young Republican Jesuit priest who unsuccessfully challenged Pastore for office. He got it. But the "equal time" law and the Zapple policy apply only when the program isn't news. Sinclair's changed plans seem designed to ensure that its hourlong program would be deemed news. In any case, the FCC can't act until after the complaints start rolling in after Friday's showing. They surely will.
Drew Clark is a senior writer at National Journal'sTechnology Daily.