From a First Amendment perspective, the Equal Time Rule is very much like the repealed Fairness Doctrine. It strips away broadcasters’ editorial discretion, forcing them to take people off the air they would rather not and putting people on the air they otherwise might not. And it’s discriminatory. It applies only to broadcasters. Let's get rid of it.
It’s Time To Trump The Equal Time Rule
Did you see the evisceration of Donald Trump by President Obama and Seth Meyers at the Washington Correspondents Association dinner last Saturday night?
No doubt peeved by Trump’s pandering to the birthers, Obama belittled him by simply describing some of the faux drama on the last episode of Celebrity Apprentice, which ended with Trump’s firing of Gary Busey. “These are the kinds of decisions that would keep me up at night,” the president smirked.
The SNL comic’s best dig: “Donald Trump has been saying he will run as a Republican, which is surprising since I just assumed he was running as a joke.”
That’s a little harsh. I had assumed that Trump was running as a commercial for all things Trump.
The only way he becomes president is if he buys off all the other Republican candidates with surplus Florida condos and Bin Laden suddenly reappears leading a band of suicide shooters through Grand Central Station a week before Election Day.
But who knows? Maybe he really does think it can become president. The guy’s most prominent feature is not his curious hair, but his ego.
In any event, the Trump talk has once again dragged the Equal Time rule to the fore. The rule, which is not a rule at all, but a law embedded in the Communications Act of 1934, says that broadcasters must provide equal time to all qualified candidates for any office. If a candidate appears for five minutes on TV or radio, then his or her rival candidates are entitled to five minutes — equal time.
Over the years, a number of exceptions have been appended to the rule, which is why it isn’t invoked very often. Appearances by candidates in newscasts, debates, interview shows and other bona fide news happenings do not trigger the equal time obligation.
It really only comes up when a TV and movie star gets the political itch. When Ronald Reagan was making his run for the White House in 1980, you couldn’t run any of his movies or reruns of General Electric Theater, not that anybody wanted to. It was also a problem for Fred Thompson, one of the stars of Law & Order, when he began making noise about the White House in 2007, and Arnold Schwarzenegger when he jumped into the recall election for governor of California in 2003. Or, I should say, it was a problem for the broadcast networks and TV stations that were carrying those candidates’ shows and movies.
Because of the rule, for Trump to run, he would have to give up Apprentice next season. This is something that neither he as a producer of the show nor NBC wants to do. The show is one of few winners on the NBC schedule.
If Trump is serious, he would probably give up the show anyhow. Campaigning for president is a full-time job and, as Obama suggested over the weekend, the show doesn’t exactly lend the gravitas that we like to see in our presidents. But Trump shouldn’t have to quit the show because of Equal Time.
The rule is a creaky vestige of the 1930s when politicians were scared to death of the powerful medium of AM radio and were looking for ways to box it in.
Congress should repeal it, or some court should strike it down on First Amendment grounds.
Whenever equal time comes up, reporters dutifully explain that it is not to be confused with the Fairness Doctrine, an FCC rule that said that broadcasters must cover all sides of important public issues. The FCC abolished that rule in 1987, arguing that it was an affront to the First Amendment rights of broadcasters and that it was counterproductive, discouraging rather than encouraging a vigorous discussion of issues on the airwaves.
But from a First Amendment perspective, the Equal Time Rule is very much like the Fairness Doctrine. It strips away broadcasters’ editorial discretion, forcing them to take people off the air they would rather not and putting people on the air they otherwise might not. And it’s discriminatory. It applies only to broadcasters.
What’s odd is that nobody really seems to mind the rule. You don’t hear people decry it as they used to the Fairness Doctrine or as they now do the broadcast indecency restrictions. When Equal Time comes up, the talk is all about how to work around it rather than how to get rid of it.
I guess it’s because it’s not such big deal in practical terms. As I said, the rule doesn’t come up that often. That’s due in large part to broadcast networks and stations having hard-and-fast rules against on-air talent running for public office.
What’s more, it would cost a lot of money to take it down, either in legal bills or in a big lobbying push on Capitol Hill. And neither remedy would come with a guarantee of success. Defenders would surely rise up. There are still plenty who worry about unrestrained broadcasting.
I suspect that some broadcasters may even like the rule. Owners and managers have a good reason for telling anchors, reporters and DJs that they can’t run for school board, mayor, Congress or whatever. And even I gag at the prospect of the Rush Limbaughs of the world using their radio platforms to pursue personal political ambitions.
But there is the principle of the thing, and the principle is that broadcasting should have full First Amendment rights. Broadcasters should have sole discretion over what they put on air, and on-air talent shouldn’t have to give up their day jobs to run for elected offices, many of which are part-time and low pay. (TV news people, of course, should shun public office, but as a matter of ethics, not law.)
As for The Donald, my guess is that in a few weeks he will announce that he will not seek to become the leader of the free world. In giving his reasons, I would hope that he would mention the Equal Time Rule as a complicating factor, even though NBC’s equal time obligations would not have begun accumulating until Trump’s name actually started appearing on ballots late this year or early next.
If he wants to keep this thing going, he could announce a campaign to repeal the anachronistic rule in Congress so that in the future he and anybody else could be both TV star and candidate and so broadcasters would be relieved of an intrusive and discriminatory content regulation.
In a flash, Trump goes from champion of the birther loons to champion of the First Amendment. That’s nothing to laugh at.