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

Article excerpt

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. …