Advocacy group boycotting of network television advertisers and its effects on programming content.

• Author: Fahey, Patrick M.

INTRODUCTION

The number and variety of media outlets in the United States far exceed those in any other nation. Sixty percent of American homes received cable television service, enabling the average household to view twenty-seven different channels.(1) Over 10,000 radio stations compete for listeners and over 40,000 journals and magazines are published in the United States every year.(2) As media outlets have expanded, so have the number of commercial messages reaching the average consumer. Network television(3) commercials, for example, have increased greatly. From 1965 to 1990, the number of commercials shown on network television increased threefold, from approximately 1,800 to almost 5,400 per year.(4) Moreover, this number increases 20% annually.(5) Networks can broadcast five or six consecutive advertisements during a single commercial break, averaging 10.5 minutes of commercial time per hour of prime-time programming.(6)

Television has become the most influential mass medium in the United States.(7) Its images permeate public and private spaces.(8) Television sets are found in virtually every home and they also crowd airports, bus and train stations, hospitals, lobbies, restaurants, nightclubs, and even parks and beaches.(9) Because news, public affairs, and entertainment programs reflect and shape the dominant values and norms in society, advocacy and special-interest groups have made concerted efforts to control substantive media content.(10)

To better understand the types of reforms that advocacy groups seek, it is useful to classify the groups according to their social status, goals, and the extent to which they want to alter the content of the medium.(11) Conservative and religious groups view television as an intrusive threat to morals and Christian values and therefore seek to pressure the industry to prevent the degradation of society that results from the projection of alternative values.(12) Similarly, antiviolence groups find fault with television's excessive glorification of violence.(13) These organizations seek to reduce or eliminate violence from television, arguing that continued exposure to violence will produce a violent society.(14) Social-activist groups, such as environmental organizations, regard television as an "electronic classroom" in which society can most effectively learn about the issues and crises on the organizations' agendas.(15) They want to incorporate educational messages about birth control, AIDS, arms control, and drug and alcohol abuse into television programming.(16) Status-based interest groups, including women, homosexuals, seniors, the disabled, and racial minorities perceive television as a "cultural mirror" that has failed to "reflect their [own] image[s] accurately."(17) They seek "fuller and more positive representation" in television, because the medium threatens their rights as citizens when it treats them unfairly, excludes them, or only marginally includes them.(18)

Advocacy groups have difficulty influencing the substantive content of television programming since their members are often not included in the production and selection process. Instead, advocacy groups express their views by picketing the networks(19) and lobbying governmental authorities for increased regulation.(20) More successful is the consumer boycott, which appears to be the weapon-of-choice in the advocacy group arsenal.(21) By using their economic power to threaten not to purchase products from advertisers or sponsors of programs in which their views are not represented or are unfairly characterized, advocacy groups have made the networks and advertisers more responsive to their concerns.

This Comment examines the effects of consumer boycotts by advocacy groups on the substantive content of network television programming. Section I examines the limits of constitutional and ethical protection afforded boycotts. Section II explores the relationship between advocacy groups and the medium, focusing on the activities and complaints of individuals and organizations who have achieved a degree of prominence and notoriety in the industry. Through a series of comprehensive case studies, Section III examines how boycotts affect the presentation of three issues: abortion, homosexuality, and environmentalism. Finally, Section IV advocates two media policy reforms--content-blind purchasing of commercial air time and advocacy group internal network regulation-and evaluates how these proposals will operate within the current constitutional and regulatory regime.

1. DERIVING A CONSTITUTIONAL PROTECTION FOR CONSUMER BOYCOTTS

   Expressive boycotts have long been an effective means of political communication. "From the colonists' protest of the Stamp and Townsend Acts to the . . . National Organization for Women's [(NOW)] campaign to encourage ratification of the Equal Rights Amendment, boycotts have played a central role in our [n]ation's political discourse."(22) Their foundation in American history, importance as a mode of expression, and susceptibility to content-based regulations may require that restrictions on boycotts be scrutinized with special care.(23) Although consumer boycotts of television advertisers may appear to be destructive and illegal efforts that infringe upon the rights of the television industry, recent case law affords such boycotts constitutional protection.

   1. Developing a Constitutional Protection for Politically Motivated Boycotts in NAACP v. Claiborne Hardware Co.

      Until the Supreme Court's decision in NAACP v. Claiborne Hardware Co.,(24) the Court indicated that "rational economic policy reasons" could justify the regulation of peaceful consumer boycotts.(25) In Claiborne Hardware, however, the Court declared a "new consumer right to engage in concerted refusals to patronize even if such refusals are economically disruptive."(26) This case arose from a black citizens' consumer boycott of white merchants in Claiborne County, Mississippi, aimed at compelling white elected officials to support demands by civic and business leaders for racial equality and integration.(27) On common law tort grounds, the Mississippi court upheld a lower-court judgment for injunctive relief and damages, finding that the protesters had used "illegal force, violence, and threats against the peace" to effectuate the boycott.(28) On appeal, the United States Supreme Court unanimously reversed, holding that "[t]he right of the States to regulate economic activity could not justify a complete prohibition against a nonviolent, politically motivated boycott designed to force governmental and economic change and to effectuate rights guaranteed by the Constitution itself."(29) Accordingly, the Court found the nonviolent elements of the NAACP's activities entitled to First Amendment protection.(30)

      The Claiborne Hardware Court drew a critical distinction between (1) pure economic boycott activity and unfair trade practices, which can be restricted by antitrust laws,(31) and (2) peaceful political boycotts, which should not be regulated, since "expression on public issues 'has always rested on the highest rung of the hierarchy of First Amendment values.'"(32) In supporting this differentiation, the Court recognized the importance of collective activity in political areas: "'[T]he practice of persons sharing common views banding together to achieve a common end is deeply embedded in the American political process .... [B]y collective effort individuals can make their views known, when, individually, their voices would be faint or lost.'"(33)

   2. Extending the Meaning of Political Activity: Environmental Planning Informational Council v. Superior Court

      After the Claiborne Hardware decision, it was unclear how broadly courts would construe the meaning of political activity.(34) Would joining a consumer boycott, for example, be conceived as a "constitutionally protected political act" or would the conception of boycotts as protected political activities be "limited to those aimed at affecting governmental decisionmaking?"(35) The Supreme Court of California recently addressed this question in Environmental Planning and Information Council v. Superior Court.(36) In this case, a newspaper publisher brought an action for injunctive relief and punitive and compensatory damages against a nonprofit environmental organization. Critical of the newspaper's editorial policies on environmental matters, the environmental group had called for a boycott of companies that advertised in the newspaper.(37) The California court expressly rejected the publisher's argument that only civil rights boycotts should be afforded constitutional protection, characterizing the organization's activity as a "'politically motivated boycott designed to force governmental and economic change.'"(38) "[T]he fact that the change which they seek bears upon environmental quality rather than racial equality, can hardly support a different result."(39) The court emphasized that it was "precluded by the First Amendment itself from gauging the degree of constitutional protection by the content or subject matter of the speech: '[T]here is an "equality of status" in the field of ideas.'"(40)

      The Environmental Planning court held the boycotters' activity to be constitutionally protected even though it was aimed at changing the editorial policies of the newspaper:

      The freedom of a newspaper to formulate editorial policies is obviously of great value in our society, and the spectacle of different groups seeking to influence those policies through the use of economic boycott is troublesome to contemplate. Yet, the newspaper is not in a position to claim infringement of its own constitutional rights by such conduct, since no governmental action is implicated, and the degree of economic coercion which exists may be no greater than that which might lawfully be exerted by an advertiser who, on his own, seeks to influence editorial policy by...