Anti-Abortion Advertising and Access to the Airwaves: A Public Interest Doctrine Dilemma.

Author:Lomicky, Carol S.
 
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When the anti-abortion television commercials were broadcast first in the spring of 1992, one editorial writer warned that a new era for national political advertising had begun ("A `shock ad' plague," 1992). Since that time, pro-life candidates for federal elective offices have broadcast political commercials that contain pictures of abortion or late-term aborted fetuses. Some of the advertisements have been aired during after-school children's programming, in prime time, or during weekend afternoon sports programming. Concerned viewers have flooded local television stations and the Federal Communications Commission with complaints.(1) At least one station received bomb threats (Flint, 1992a). A number of viewers, claiming intentional infliction of emotional distress, sued several stations that had televised the commercials (see, for example, Flint, 1992a; Goetz, 1992).

Despite the complaints, abortion opponents had gained access to television because, under federal law, candidates for federal political office are guaranteed reasonable access to the broadcast airwaves. Moreover, stations must broadcast political advertisements at the time requested by the candidates. In addition, broadcasters are not permitted to refuse or to amend the content of the advertisements.

Appealing to the FCC, some broadcasters wanted the Commission to allow them to refuse to air the commercials. Others wanted to be able to limit the advertisements to hours of the broadcast day when fewer children would be in the viewing audience. The candidates, on the other hand, claimed that broadcaster reluctance to air the advertisements was politically motivated. The candidates also pointed out that broadcaster handling of the commercials violated federal law.

In November of 1994, more than two years after the first complaint was filed, the FCC formally responded to the controversy. The Commission expressed the opinion that the advertisements could be restricted to the late night, early morning time of the day when fewer children are watching television if broadcasters, in the good faith exercise of their discretion, believed that the content of the commercials would be harmful to children (Federal Communications Commission, 1994). But on September 13, 1996 the U.S. Court of Appeals for the D.C. Circuit struck down the FCC ruling. The Court (Becker v. FCC, 1996) held that the ruling permitted broadcasters to discriminate against candidates on the basis of the content of the advertisements and, therefore, the ruling violated the law.(2)

Entangled in the events leading up to this court decision were: broadcast licensees, anti-abortion and pro-choice proponents, media access and citizen action groups, broadcast professional organizations, and viewers. Indeed, the dispute is difficult, because it creates adversarial relationships between groups vital to the broadcast regulatory process. As Krasnow, Longley, and Terry (1982) note, broadcast regulation encompasses a dynamic process involving complex interactions among numerous participants, often with different goals, all of whom influence each other as well as public policy and standards. The anti-abortion political advertising conflict illustrates what Krasnow et al. (1982) refer to as the politics of broadcast regulation, which they define as "those activities leading to the allocation of desired goods" (p. 2). Thus, in the regulatory process, decisions usually result in the allocation of desired goods -- with some of the participants getting at least some of what they want (Krasnow et al., 1982). Specific to the anti-abortion political advertising conflict, the politics can be viewed in terms of these key participants: the anti-abortion candidates for federal office, who argued for an unbridled right of access to the airwaves; broadcasters, who maintained a right for editorial control in journalistic freedom; and citizens groups and broadcasters, who expressed a concern for the protection of children. In fact, throughout the 1992 federal election campaign season, the FCC and other participants in the controversy clearly struggled over policy alternatives. Eventually the central issue for the U.S. Court of Appeals for the D.C. Circuit was whether the interest in protecting children from potentially harmful advertising content should supersede the public interest in protecting political speech.

This article explores the public interest dilemma produced when some federal political candidates were able to broadcast advertisements containing abortion images. The article also discusses the implications of the 1996 federal appellate court decision: when forced to choose between the two competing interests--the public interest in informed political debate and the societal concern for the welfare of children -- accepted the former and rejected the latter.

Pro-Life Political Advertising Reaches the Airwaves

In 1984 Howard Coble, a Republican Congressional candidate from North Carolina, broadcast one of the country's first anti-abortion political advertisements. The commercial featured a pregnant woman who implied that her motherhood was threatened by the views on abortion held by Coble's opponent (Kern, 1989). "Here's one person who's going to vote for Coble," proclaimed the woman in the advertisement. She then patted her protruding abdomen and added, "No, two." Questions of taste surfaced and the commercial aired only briefly.

In 1992, abortion again was the issue for some candidates but the message had changed. Throughout their campaigns, at least 20 candidates(3) for federal offices broadcast commercials that focused on the candidates' opposition to abortion. These advertisements, however, depicted the issue with pictures many found to be offensive. Typical of the advertisements was one created for Michael Bailey, founder of Christian Media Ministries and a Republican Congressional candidate from Indiana. The advertisement began with Bailey telling viewers that "the contents (of the commercial) are not suitable for young children; abortion is not suitable for the United States." This was followed by 15 seconds of video showing dead fetuses, tiny dismembered body parts, partially formed faces, bloody uterine fluid. Over the next several years, other candidates for federal offices adopted similar tactics. In fact, many of the advertisements contained some of the same pictures.(4)

Clearly what some of the pro-life candidates had accomplished was to identify provisions found in federal law as a means by which to broadcast anti-abortion messages. In fact, Bailey had not intended to be a candidate for political office at all but rather had planned to use his background in advertising to become the campaign manager for a candidate of his choosing. However, Bailey still was looking for someone who shared his particular political views to run for Congress in Indiana as the 1992 primary filing deadline approached (Spillman, 1995). He then entered the race himself as a Republican candidate, knowing that candidate status would guarantee him access to television. On August 31, 1992 on ABC News "Nightline", he explained:

And I was reading the reasonable access law that said if you are a federal candidate for high office in America, your television ads by law cannot be censored ... And I went, `Eureka, praise God] There's a way to get the truth on television'" (as cited in Spillman, 1995, p. 3). The law Bailey was referring to is the Communications Act of 1934, which, under Section 315(a), requires broadcasters to provide equal opportunities to legally qualified candidates for public office. This means that if a station permits one candidate to use its facilities, all other candidates for that office are entitled to equal time. Section 315(a) of the law accords candidates additional privilege because, unlike other advertising or programming, broadcasters cannot censor the content of candidates' political advertisements. Also, Section 312(a)(7), requires that broadcast licensees provide reasonable access or permit the purchase of reasonable amounts of time by legally qualified candidates for federal office. Thus, despite objections about the shocking nature of the advertisements, broadcasters were required to sell the commercial time to the federal candidates. Moreover, broadcasters were required to air the advertisements at the time requested by the candidates. In addition, the content of the commercials could not be edited by the broadcasters. The latter, in fact, was important to the pro-life strategy. As Bailey noted, his commercials were meant to disturb viewers -- including children. "I think kids should see them because we don't want them to think abortion is socially acceptable" (Stern, 1994b, p. 36). And, as he later admitted, the images are "gruesome, gross," but ones that "will save lives" (Johnson, 1996, p. A16).

As expected, the advertisements generated controversy. Many broadcasters were unclear about their responsibilities when candidates wanted to broadcast commercials clearly designed to horrify and offend. Some stations arbitrarily limited their airing to late night/early morning hours; several refused to broadcast the commercials altogether.

Eventually the FCC was called upon to resolve the matter: viewers and stations complained about the offensiveness of the advertisements; candidates asked the Commission to sanction stations for improper handling of the advertisements; some broadcasters sought general guidance while others petitioned for more specific solutions. For example, some broadcasters took the position that the depiction of aborted fetuses was indecent, and, as such, was subject to the FCC requirement that they be channeled to hours of the broadcast day when fewer children would be in the audience.

Indecency and the Protection of Children

The rules for broadcasters regarding indecency are an important aspect of the anti-abortion political advertising controversy. The...

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