IN THIS ISSUE:
When Do "Experience and Logic" Matter
Under the First Amendment?
Federal Government Challenges Traditional
Public Disclosure Principles in War on Terror
By Jeffrey
L. Fisher
The federal government's actions against persons suspected of connections
to terrorism continue to raise questions about the Bill of Rights'
applicability to novel measures taken in the name of national security.
Nowhere are those questions more pressing than with regard to the
First Amendment's guarantee of open government.
A central objective of the First Amendment is to ensure that citizens
have access to information enabling them to participate in and contribute
to our republican system of self-government. Information about how
the government itself is operating lies at the core of this notion.
Unless we know how the officials who serve us are behaving, how
can we govern ourselves?
Beginning in 1980, a short series of cases established a test to
protect our right to know. In Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980), the Supreme Court made it clear that the First
Amendment not only prevents the government from censoring private
parties' expression; it also requires the government to disclose
certain information about itself. This latter doctrine, the Court
explained in subsequent cases, is driven by "experience and
logic": When governmental records or proceedings traditionally
have been made public ("experience") and doing so serves
an important function of monitoring governmental conduct ("logic"),
the First Amendment imposes a presumption of openness. See Press-Enterprise
Co. v. Superior Court, 478 U.S. 1, 8 (1986); Press-Enterprise
Co. v. Superior Court, 464 U.S. 501 (1984). The government may
not suppress such information absent an individualized showing of
a particular need for secrecy.
The Supreme Court, however, has never laid down clear parameters
explaining how broadly the experience and logic standard is applicable
to governmental actions. The Court has held that the standard imposes
a presumption that the government must hold criminal trials and
preliminary court proceedings in public. But does the experience
and logic test impose a presumption that the government must hold
non-criminal proceedings in public? Does it generally require
the government to release information to the public about persons
it has arrested or detained but not charged with any crime?
These are questions that Bush Administration policies and court
filings in the "war on terror" recently have required
the federal circuit courts to grapple with - and with differing
results.
In August of 2002, the Sixth Circuit of the United States Court
of Appeals rejected the federal government's attempt to close all
terrorism-related immigration deportation hearings - which, unlike
criminal trials, are conducted by the executive branch - holding
that the First Amendment requires such hearings to be held in public
absent a showing that national security requires a particular hearing
to be closed. Detroit Free Press v. Ashcroft, 303 F.3d 681
(6th Cir. 2002). Two months later, the Third Circuit agreed that
the experience and logic test applied to deportation hearings, although
a 2-1 majority disagreed with the Sixth Circuit and found that deportation
hearings did not "boast a tradition of openness sufficient
to satisfy" the test and could therefore remain closed. North
Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 212 (3rd
Cir. 2002). These opinions followed previous federal appellate rulings
that the experience and logic test applies outside the realm of
criminal judicial proceedings.1
But a decision last summer in another important case took a sharply
different approach. In the weeks and months following 9/11, the
federal government instituted a policy of detaining several hundred,
if not thousands, of individuals (the exact number is not known)
on American soil that it suspected of having ties to terrorism.
The government charged only a handful with crimes and confined the
others based on alleged immigration violations and other suspicions,
or using material witness warrants. All the while, the government
withheld the names and all other information concerning these "non-criminal"
detainees, citing national security concerns.
A coalition of public interest groups sued the Department of Justice
(DOJ), arguing principally that the Freedom of Information Act (FOIA)
and the First Amendment required the government to disclose the
detainees' names and other basic information. The district court
ordered the DOJ to release the names of the detainees and their
attorneys but stayed its decision pending appeal.
On June 17, 2003, a divided panel of the D.C. Circuit reversed,
interpreting the Richmond Newspapers doctrine much more narrowly
than the Sixth or Third Circuits. Center for National Security
Studies v. U.S.Department of Justice, 331 F.3d 918 (D.C. Cir.
2003). The Court first held that FOIA did not require the government
to disclose any of the information sought because it was compiled
for law enforcement purposes and the government contended that its
release could interfere with the ongoing terrorism investigation.
The Court, however, could not so easily overcome the First Amendment's
experience and logic test. The majority acknowledged that arrest
records and jail logs "have traditionally been public"
- a remark that, if anything, is an understatement. English common
law has demanded that records of detention be made public ever since
the abolition of the Star Chamber's secret procedures in the mid-seventeenth
century. The Federalist Papers unambiguously denounced secret arrests,
terming them a "more dangerous engine of arbitrary government"
than convictions without trials. The federal government disclosed
the names of persons it detained pursuant to the Alien and Sedition
Acts of 1798 as well as during the Civil War (at the demand of Congress),
even while the writ of habeas corpus was suspended. And since the
turn of the century, federal, state, and local governments have
kept "police blotters" and jail logs, and virtually every
state has statutes or judicial decisions requiring these records
to be made public.
The logic behind making detention records open is patent. As the
Wisconsin Supreme Court put it in requiring police blotters to remain
public:"The power to arrest is one of the most awesome weapons
in the arsenal of the state. It is an awesome weapon for the protection
of the people, but it also is a power that may be abused."
Newspapers, Inc. v. Breier, 279 N.W.2d 179, 188 (Wis. 1979).
The D.C. Circuit nonetheless refused to find a First Amendment
presumption of openness of these records, reasoning that "[t]he
narrow First Amendment right to access to information recognized
in Richmond Newspapers does not extend to non-judicial documents
that are not part of a criminal trial, such as the investigatory
documents at issue here."2
This interpretation of Richmond Newspapers highlights the
confusion among courts trying to articulate the parameters of the
First Amendment's guarantee of public governmental information.
It is true, as the D.C. Circuit noted, that the Supreme Court has
never applied the experience and logic standard outside of criminal
judicial proceedings. But the Court also has never said that the
standard does not apply outside of that context. And it is hard
to understand why the doctrine should be so constrained.
Neither First Amendment precedent nor basic civics dictates that
it is more important for the public to monitor governmental actions
in criminal trials than in other adjudicative realms, in which federal
officials exercise enormous power over persons and severely affect
their rights and freedoms. The government's use of its arrest power
would seem to be exhibit A in this respect. By detaining people
against their will, the government deprives them of their physical
liberty and imposes significant burdens on them. Arrests are often
the first step in the process of the criminal justice system - a
system that all acknowledge carries a presumption of openness.
Unfortunately,we cannot expect the Supreme Court to clarify the
scope of the Richmond Newspapers test anytime soon. The losing
plaintiffs in the D.C. Circuit case filed a petition for certiorari
in the fall of 2003, asking the Supreme Court to resolve the confusion
surrounding this issue and to rule that the experience and logic
test applies to arrest and detention records. DWT, as it did in
the D.C. Circuit, authored an amicus brief on behalf of the media
in favor of such a presumption of openness. The Court denied the
plaintiffs' petition without comment on Jan. 12, 2004.
So the "war on terror" continues unabated, and we await
guidance and analysis as to when experience and logic really matter
under the First Amendment.
Footnotes:
1
See, e.g., id. at 207 n.3 (collecting several decisions applying
experience and logic standard to civil trials); Whiteland Woods,
L.P. v. Township of W. Whiteland, 193 F.3d 177, 181 (3rd Cir.
1999) (meeting of town planning commission); Cal-Almond, Inc
v. United States Dept. of Justice, 960 F.2d 105, 109 (9th Cir.
1992) (Department of Agriculture's voter list).
2
CNSS, 331 F.3d at 934 (emphasis added).
HIPAA and Newsgathering: Basic
Tips for Reporters and Editors
Journalists throughout the country are wrestling with the impact
of the Health Information Portability and Accountability Act (HIPAA),
a federal health privacy law that went into effect earlier last
spring.3
Fortunately, HIPAA does not regulate what the media can report about.
Nonetheless, journalists should be prepared to deal with and, if necessary,
challenge, the manner in which agencies they cover interpret these
regulations.
Perhaps because HIPAA imposes stiff penalties on agencies that
disclose private health information, there are instances of law
enforcement and fire department personnel saying they can no longer
disclose information - such as names, addresses and medical conditions
- once commonly disclosed. In Chicago, for example, the media had
a difficult time reporting on the deadly porch collapse in late
June 2003 because hospitals refused to disclose routine information
about the victims. In addition, while the Washington State Patrol
quickly recognized that HIPAA does not apply to it, other law enforcement
agencies have refused to respond to reporters' requests for information,
claiming HIPAA prevented them from releasing it. Thus, the Vancouver,
Wash., Police Department cited HIPAA when it refused to confirm
whether a kidnap victim had been assaulted. While municipal attorneys
later clarified that HIPAA did not apply to the police department,
the department's initial response - and the related delay in release
of information - reflects the chilling effect that HIPAA has created.
Fortunately, some states are clarifying what type of information
is covered by HIPAA. In Texas, for example, the attorney general
issued an opinion in February 2004 that the state's public information
law takes precedence over HIPAA, and health care information must
be disclosed unless it is covered by a specific exemption. The opinion
is available at http://www.oag.state.tx.us/opinions/or50abbott/ord-681.htm.
In addition, according to news reports, Kentucky, Arkansas and Utah
are also involved in HIPAA reviews.
What HIPAA does and does not cover
HIPAA applies only to businesses or agencies that bill or receive
payment for health care services or transmit information for payment
in electronic form. Business or agencies covered by HIPAA generally
cannot disclose, without the patient's consent, personally identifying
information such as names, addresses or specific medical condition.
Thus, in most cases, a hospital cannot give journalists a patient's
name. However, the hospital should be able to confirm if a patient
the journalist names is in the hospital and provide some additional
details such as general medical condition, an age range and a general
address (including that person's state or region).
It is not clear how HIPAA and the Freedom of Information Act (FOIA)
interact. Some public information officers have contended HIPAA
requirements supersede FOIA disclosures, but journalists should
still be able to obtain some information from public records requests.
HIPAA does not apply to every entity that has a health care function.
For example, it does not apply to a medical examiner's or prosecuting
attorney's office. Records that should generally still be available
include police- or fire-incident reports, birth records, autopsy
records and court records. In fact, for entities such as the fire
department or police department, which offer health care services
as an ancillary service, HIPAA should apply only to health care
information generated by the ancillary service. In other words,
if a fire department public information officer (PIO) sees an individual
burned at a fire, but the individual drives herself to the hospital,
then the department PIO may disclose information about the injured
person because it was not obtained as part of the fire department's
health care service.
What journalists can do
Health care information the media obtains independently is not
subject to HIPAA and may be published or broadcast freely, subject
to limitations and internal policies on printing information about
minors or the deceased. Because HIPAA prevents covered agencies
from disclosing names, reporters should obtain as much information
as possible from non-covered agencies before turning to hospitals
or medical providers for confirmation.
Journalists should also be prepared to challenge a source's claim
that a particular agency is covered by HIPAA. If a law enforcement
agency, fire department or other agency claims it cannot provide
health care information because of HIPAA, one helpful resource may
be the Department of Health and Human Services web page "Is
a Person, Business or Agency a Covered Health Care Provider"
at http://www.cms.hhs.gov/
hipaa/hipaa2/support/tools/decision support/default.asp. This
website will ask a few questions designed to determine if the business
or agency is covered. Walking a source through this short question-andanswer
process may help convince him or her that HIPAA does not apply.
To assist in efforts to understand and clarify the impact of HIPAA,
journalists should collect examples of information they are unable
to obtain because of HIPAA (whether applied correctly or incorrectly).
With this information industry groups such as the Newspaper Association
of America and American Society of Newspaper Editors can explore
lobbying and potential litigation that will clarify the impact of
HIPAA on newsgathering at the national level. At the local level,
reporters and editors should meet with agency Public Information
Officers to clarify their application of HIPAA. In this way, the
media can help structure the application of HIPAA and take action
to remedy its inevitable misuses.
Footnotes:
3
HIPAA is codified at 42 U.S.C. § 1320d-6. The implementing
regulations can be found at 45 C.F.R. §§ 160, 164.
Cable Networks and the
FCC'S Political Broadcasting Rules: Time for Clarification
By Robert
Corn-Revere
In late 2003, just as the presidential election season of 2004
was preparing to swing into high gear, a series of quirky scenarios
emerged that highlight the oddities of the FCC's "equal opportunities"
rule governing political broadcasting. For example, as the year
drew to a close, a number of NBC affiliates refused to carry an
episode of Saturday Night Live hosted by Democratic presidential
candidate Al Sharpton.4
They were concerned that the appearance would trigger an obligation
to provide similar free exposure to the large field of candidates.
Stranger questions cropped up earlier in the year during the unprecedented
California recall election for governor, with its 135 candidates.
Radio shock jock Howard Stern was advised to cancel a proposed interview
with front-runner (and eventual winner) Arnold Schwarzenegger because
of potentially staggering equal opportunities requirements. Yet
the dilemma led to an even more remarkable outcome:
the FCC declared interview segments of Stern's show a "bona
fide news interview," and therefore exempt from the political
broadcasting rules.5
While these two examples are not unlike many of the questions that
may arise in an election year, they pale in comparison to the anomaly
of the rules' disparate application to broadcast stations and cable
operators on the one hand and to cable networks on the other. This,
too, was highlighted by events in the California recall election.
Residents of California could watch The Terminator or reruns
of Diff'rent Strokes on their favorite cable channels but
not on broadcast stations. The FCC's political rules apply to any
"use" by a candidate of broadcast facilities (including
appearances for any reason in non-political programs). Consequently,
the National Association of Broadcasters advised members to avoid
airing programs with celebrity-candidates during the California
recall. However, the situation for cable networks (such as A&E
Television Network, Court TV, or Discovery) was far more ambiguous.
According to news reports, the FCC informally advised attorneys
for the cable industry that the equal opportunities requirements
do not apply to cable networks, but it was reluctant to issue an
official advisory on the issue. Thus, some networks, such as the
SciFi Channel, dropped plans to air Arnold Schwarzenegger movies,
while others, such as TNT, did not alter their programming schedules.6
Over the years, the FCC has avoided opportunities to clarify the
distinction between broadcasters and cable networks under its political
broadcasting rules. Indeed, the agency has been quite cagey about
taking any action that would have the effect of limiting its jurisdiction.
But the events of the California recall and the impending 2004 election
suggest that resolving this matter is imperative.
The political broadcasting rules
A key political broadcasting regulation, frequently but incorrectly
referred to as the "equal time" rule, derives from Section
315 of the Communications Act of 1934, 47 U.S.C. § 315(a).
Under this rule, if an FCC licensee permits a qualified candidate
for public office to use its facilities, the licensee must afford
equal opportunities to all other candidates for that same office
to appear under the same conditions. This means that if a candidate
appears on the air for free, the licensee must make available a
comparable amount of free time to opposing candidates.7
A licensee has no affirmative obligation to notify the candidate's
opponents of this opportunity but must promptly place a notice in
its "political file" providing full details about the
nature, duration, and cost of the "use." However, Section
315(a)(1)-(4) exempts from the definition of a "use" a
legally qualified candidate's appearance on a bona fide newscast,
interview or documentary (if the appearance is incidental to the
presentation of the subject covered by the documentary) or on-the-spot
coverage of a bona fide news event (including political conventions
and related incidental activities). Thus, coverage of candidates
in bona fide news programs is exempt from these requirements.
The question of what to do with appearances by actors-turned-candidates
arose in California (where else?) during the first presidential
bid of Ronald Reagan. The FCC held that Section 315 applied to broadcasts
of movies in which Reagan appeared as an actor because "[a]
candidate who becomes well-known to the public as a personable and
popular individual through 'non-political' appearances certainly
holds an advantage when he or she formally discuss[es] political
issues to the public over the same media."8
In that case the FCC simply applied the principle it had established
a few years earlier, in reviewing the satirical presidential campaign
of comedian Pat Paulsen, that there was "no basis for distinguishing
between political and non-political appearances by candidates."9
The Commission briefly rescinded this interpretation of Section
315 in the early 1990s, reasoning that candidates lack control over
the airing of movies or reruns of entertainment shows in which they
may appear.10
However, it reimposed the broader interpretation of Section 315
after concluding that the issue warranted "more comprehensive
examination."11
Cable networks and equal opportunities
It is often assumed that the FCC has jurisdiction over political
programming transmitted on cable networks; consequently, cable operators
generally require programmers to adhere to the FCC's political programming
requirements and other rules as a condition of their affiliation
agreements. A typical provision in a cable television affiliation
agreement requires that the "network shall comply with all
provisions of the Communications Act of 1934, the Cable Communications
Policy Act of 1984, and the Cable Television Consumer Protection
and Competition Act of 1992." Cable networks at times are obligated
to warrant that they comply with, inter alia, political equal time
and personal attack rules "to the extent applicable under federal
law." But a closer examination of the law suggests that such
conditions are unjustified.
The initial decisions applying Section 315 to "non-political"
programming were adopted when cable was in its infancy and the question
of how the rules should apply (if at all) to cable television networks
simply did not arise. In 1971 Congress amended Section 315 to cover
"community antenna television systems" (i.e., cable
systems) as well as broadcast licensees.12
Due in part to the nascent state of the cable industry in 1971 and
because the only non-broadcast programming carried on most cable
systems was programming originated by the cable systems themselves,
the FCC's rules implementing the change applied only to "origination
cablecasting," which is defined as programming carried on a
cable system "subject to the exclusive control of the cable
operator."13
Consistent with this approach, all of the Commission's political
programming rules that apply to cable television expressly target
cable systems, not cable networks.14
The statutory language, legislative history, and constitutional
considerations all support the conclusion that Section 315 does
not apply to cable networks, but the FCC has never clearly addressed
this issue.
"Origination cablecasting," the focus of the 1971 amendment,
clearly does not apply to the programming carried on cable networks.
Although cable operators make editorial decisions about network
carriage or channel placement, they do not exert editorial control
over most networks or the content of particular programs. In a typical
affiliation agreement, a cable operator simply agrees to distribute
network programming "without delay, addition (excepting local
availabilities), deletion, alteration, editing or amendment."
In this regard, affiliation agreements for cable networks are quite
different from those entered by broadcast networks, which are governed
by the FCC's "chain broadcasting" rules.15
Those rules, which accord broadcast network affiliates the specific
right to reject or refuse a network program and to substitute their
own content, do not apply to cable networks.16
Accordingly, cable networks and the programs they present should
fall outside the scope of Section 315.17
Indeed, because of this fundamental difference in the regulatory
treatment of broadcasting and cable networks, it would be implausible
to suggest that the Commission has ancillary authority to extend
Section 315 to cable networks. The legislative history of the 1971
amendment includes little discussion of its scope, but what exists
supports the conclusion that Congress was concerned with programming
a cable operator originates, rather than network programming it
retransmits.18
Similarly, while Commission interpretations of these regulations
are sparse, they support the straightforward understanding that
cable networks are excluded from Section 315 requirements.19
In Albert J. Zawicki, 60 R.R.2d 1657 (Mass Media Bureau 1986),
FCC staff ruled that Section 315 does not apply to programming carried
on PEG access channels over which a cable operator lacks editorial
control. In that case, the staff reasoned that Section 315 was inapplicable
to the program in question because "the designated user of
the channel retains editorial control over the channel" and
the programmer "is not a cable operator." Id. More
recently, in A&E Television Networks, 15 FCC Rcd 10796
(Mass Media Bureau 2000), FCC staff was asked to rule on the applicability
of Section 315 to cable networks. It granted an exemption to the
A&E "Biography" series as a "bona fide
news interview" program, declining to resolve the question
of Commission jurisdiction. In doing so, however, it observed that
"[u]nlike broadcast stations,which are potentially subject
to Section 315 requirements with respect to all programming broadcast
by a station, cable systems are subject to Section 315 only to
the extent they 'originate' programming."20
The full Commission has not been presented with a similar question.
However, where it has referred to the cablecasting requirements
in connection with other requests, the FCC has stated that Section
315 applies only to programming over which a cable system exercises
exclusive control.21
Constitutional limits on regulating cable networks
Excluding cable networks from the scope of the political broadcasting
rules reflects the fact that the FCC has limited jurisdiction over
most cable networks and the programming they transmit. Unlike broadcast
networks, which are subject to FCC rules by virtue of their status
as licensees of their "owned and operated" television
stations, cable networks and their owners are not licensed by or
directly subjected to FCC rules. Some may suggest that the solution
is for Congress or the FCC to change the law and extend equal opportunities
requirements to cable networks as well as broadcasters. But any
attempt to extend Section 315 obligations to cable television networks
would raise significant First Amendment obstacles.
The Supreme Court has made clear that absent the "special
characteristics" of the broadcast medium, such as its use of
the limited radio spectrum, restrictions similar to Section 315
are unconstitutional.22
And in Turner Broadcasting System v. FCC, 512 U.S. 622, 637 (1994),
which held that the FCC's must-carry rules would be evaluated under
the "intermediate" level of scrutiny, the Court declared
that "the rationale for applying a less rigorous standard of
First Amendment scrutiny to broadcast regulation, whatever its validity
in the cases elaborating it, does not apply in the context of cable
regulation."23
Noting the "fundamental technological differences between broadcast
and cable transmission," the Court found that application of
"the more relaxed standard of scrutiny adopted in Red Lion
[Broadcasting Co. v. FCC, 395 U.S. 367 (1969)] and the other broadcast
cases is inapt when determining the First Amendment validity of
cable regulation."24
Similarly, the United States Court of Appeals for the District of
Columbia Circuit has held that the more rigorous First Amendment
scrutiny precludes the Commission from applying to cable operators
the same type of rules that have been upheld in the broadcasting
context, even when the subject involves structural regulations.
The Commission's authority is all the more questionable when it
seeks to regulate in the area of cable programming.25
Consequently, the First Amendment should preclude the FCC or Congress
from applying Section 315 to cable networks.
A time for clarity
The question of whether the FCC's political broadcasting rules
apply to cable networks has been simmering on the back burner for
some time. In May 1999, for example, CNN initially scheduled, then
canceled, an appearance by Vice President Al Gore as guest host
of the Larry King Show.26
The scheduling reportedly led the Republican National Committee
to urge party activists to call the network and demand equal time,
and the offer to the Vice President was rescinded. The issue arose
again in 2000, when A&E Television aired profiles of the presidential
candidates as part of its Biography series. But the issue
moved to the forefront during the 2003 California recall election
because of its large candidate field that included former child
TV actors, porn stars and current movie actors.
The bizarre scenario of the California recall may be unlikely to
recur, but the question of how to treat cable networks under the
FCC rules undoubtedly will reemerge as the 2004 presidential race
heats up. Given the growth in basic cable viewership and the increasing
tendency for candidates to appear on all types of shows, it is inevitable
that sooner or later the issue will be presented squarely to the
Commission. For example, Comedy Central's The Daily Show with
Jon Stewart already has aired interviews with six of the Democratic
presidential candidates.27
While the network certainly could seek a "bona fide news
interview" exemption if a demand for equal opportunities is
ever filed (it worked for Howard Stern, didn't it?), it raises the
interesting question of what the FCC can say about a program whose
host regularly describes his show as a "fake newscast."
If the question is ever presented, there should be no doubt that
the Daily Show interviews would qualify for an exemption
under Section 315(a) even though it is an entertainment show. But
the more legally sound and intellectually honest way to deal with
the issue would be for the Commission to declare that Comedy Central
and all other cable networks are excluded entirely from Section
315's reach. Such an approach would preclude the recurring programby-
program questions that come up with increasing frequency during
each election cycle. The Commission might also consider reinstating
its 1991 decision that candidate appearances in non-political programs,
such as old movies, do not trigger equal opportunities obligations
even in the broadcasting context. But in the meantime, the FCC should
clear up the confusion and formally declare what the law requires
- that cable networks are free from equal opportunities obligations.
Footnotes:
4
Many Viewers Miss Sharpton's 'SNL' Act, USA TODAY, Dec. 8, 2003
(www.usatoday.com/life/television/news/2003-12-08-sharpton-snl_x.htm).
5
In re Request of Infinity Broadcasting Operations, Inc. for a Declaratory
Ruling, 18 FCC Rcd. 18603 (2003).
6
Sue Zeidler, Cable TV Networks Pull Schwarzenegger Films, Forbes.com,
August 14, 2003.
7
Branch v. FCC, 824 F.2d 37 (D.C. Cir. 1989) (newscaster-candidate
would trigger free time requirement).
8
In re Request by Adrien Weiss, 58 F.C.C.2d 342 (Broadcast Bureau
1976). When Reagan ran for Governor of California in the 1960s the
TV show Death Valley Days reportedly replaced him as host to avoid
the constraints of the political broadcasting rules. See Gary Gentile,
Schwarzenegger Films Would Trigger FCC Equal Time Rule, Associated
Press, August 12, 2003.
9
See Pat Paulsen, 33 F.C.C.2d 835 (1972), aff'd sub nom. Paulsen
v. FCC, 491 F.2d 887 (9th Cir. 1974). Although Pat Paulsen was a
comedian and not a politician, he qualified for the ballot in one
state, thus triggering application of the FCC's rules.
10
Codification of the Commission's Political Programming Policies,
7 FCC Rcd. 678, 685 (1991).
11
Codification of the Commission's Political Programming Policies,
9 FCC Rcd. 651, 651 (1994).
12
See Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86th
Stat. 3 (1972).
13
47 C.F.R. § 76.5(p). This definition has remained the same
since the Commission adopted comprehensive cable television regulations
in 1972. See Cable Television Report and Order, 36 F.C.C.2d 143,
215 (1972) (definition initially codified at 47 C.F.R. § 76.5(w)).
14
See, e.g., 47 C.F.R. § 206(a) ("The charges, if any, made
for the use of any system...."); id. § 207(a) ("Every
cable television system shall keep and permit public inspection
of a complete and orderly record (political file) of all requests
for cablecast time …").
15
See 47 C.F.R. § 73.658 (2002).
1616
47 C.F.R. § 73.658(e)(1).
17
See FCC v.Midwest Video Corp., 440 U.S. 689, 707-709 (1979); MPAA
v. FCC, 309 F.3d 796, 804 (D.C. Cir. 2002); Home Box Office v. FCC,
567 F.2d 9, 28 (D.C. Cir. 1977) (rejecting ancillary authority to
impose cable television content controls).
18
See Federal Election Campaign Act of 1971, Hearings before the Subcomm.
on Communications of the Senate Comm. on Commerce, 92nd Cong., 1st
Sess. 387 (1971). Those who testified on the issue focused on the
issue of programming originated by cable operators. See id. at 398
(Testimony of Dr. Frank Stanton) ("suppose the CATV originates
a political program themselves"); Political Broadcasting-1971,
Hearings before the Subcomm. on Communications and Power, House
Comm. on Interstate and Foreign Commerce, 92nd Cong. 1st Sess. 89
(1971) (Statement of Rep. Torbert MacDonald).
19
In its comprehensive primers on the law of political broadcasting
and cablecasting, the FCC does not address how Section 315 applies
to uses by political candidates on cable television networks. See
The Law of Political Broadcasting and Cablecasting: A Political
Primer (1984 Edition); The Law of Political Broadcasting and Cablecasting,
69 F.C.C.2d 2209 (1978); Use of Broadcast Facilities by Candidates
for Public Office, 24 F.C.C.2d 832 (1970).
20
Id. at 10796 n.2 (emphasis added).
21
Fox Broadcasting Co., 11 FCC Rcd. 11,101, 11,107 n.12 (1996) ("In
implementing [Section 315(c)], the Commission has applied Section
315 only to a cable system's origination cablecasting, defined as
programming over which it exercises exclusive control."); A.H.
Belo Corp., 11 FCC Rcd. 12306, 12,307 n.3. (1996).
22
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) (state
right of reply law for newspapers violates the First Amendment).
23
Id. at 639.
24
Compare Sinclair Broadcast Group, Inc. v. FCC, 284 F.3d 148 (D.C.
Cir. 2002) and Fox Television Stations, Inc. v. FCC, 280 F.3d 1027
(D.C. Cir. 2002) (both affirming the constitutionality of FCC broadcast
ownership rules), with Time Warner Entertainment Co. v. FCC, 240
F.3d 1126 (D.C. Cir. 2001) (striking down national cable ownership
rule).
25
United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 815 (2000);
MPAA v. FCC, 309 F.3d 796, 804-805 (D.C. Cir., 2002); HBO, Inc.
v. FCC, 567 F.2d 9, 28 (D.C. Cir. 1977).
26
See Howard Kurtz, CNN Cancels Gore's Gig as Talk Host, WASHINGTON
POST,May 7, 1999 at C 1.
27
See Stewart Gets a General Visit, MULTICHANNEL NEWS, December
10, 2003.
ABOUT THE AUTHORS
Robert Corn-Revere
is a partner in DWT's Washington, D.C. office. His practice includes
advising clients on First Amendment and Internet-related issues,
and FCC regulatory matters. Among other things, Bob has served as
counsel in litigation involving the Communications Decency Act,
the Child Online Protection Act, Internet content filtering in public
libraries, public broadcasting regulations and export controls on
encryption software.
Bob
can be contacted at (202) 508-6600 or bobcornrevere@dwt.com.
Jeffrey L. Fisher
is an associate in DWT's Seattle office. He represents clients in
First Amendment, criminal defense and other constitutional matters,
primarily at the appellate level. He was one of the attorneys involved
in the amicus brief DWT filed on behalf of The Washington Post Company
and several other media entities in Center for National Security
Studies v. U.S. Dept. of Justice, 331 F.3d 918 (D.C. Cir. 2003),
one of the cases discussed herein.
Jeff
can be reached at (206) 622-3150 or jefffisher@dwt.com.
ABOUT OUR COMMUNICATIONS AND MEDIA LAW PRACTICE
A national leader in the field, Davis Wright Tremaine's (DWT) Communications,
Media and Information Technologies Department has nearly 100 lawyers
in seven offices from coast to coast. The department's experience
is as broad as its geographic scope. Our attorneys assist broadcasters,
publishers, online content providers and journalists in all aspects
of media law, including prepublication review, access to courtrooms
and public records, newsroom subpoenas and defamation, and invasion
of privacy defense. Our First Amendment and intellectual property
lawyers represent advertisers nationwide. We provide counseling,
regulatory, business and litigation services for national and regional
clients.
Our firm has been representing the media and protecting First Amendment
and intellectual property rights for decades. In a time of unprecedented
innovation,we understood the impact of new technology on intellectual
property and the need to expand our resources to better serve the
telecommunications and information technology industries. Today
we are a leader in these fields as well; and with an already renowned
leadership in media law, no firm knows more about the issues affecting
the content of new technologies.
Defamation, privacy, newsgathering and the First
Amendment
Our experience in this area is unparalleled and encompasses matters
of national, local and international concern. For more than 40 years,
DWT lawyers have been representing clients in all types of communications
and media litigation, including defamation and privacy defense and
a wide range of First Amendment matters before the U.S. Supreme
Court and in federal and state trial and appellate courts throughout
the country.
Related experience includes:
- Defending publishers and broadcasters against
defamation, newsgathering and invasion of privacy claims;
- Advising online content providers, publishers
and other businesses regarding compliance with privacy regulations;
- Obtaining dismissals and fee awards under anti-SLAPP
(Strategic Lawsuits Against Public Participation) statutes;
- Defending media clients in obscenity actions;
- Representing anonymous individuals in "cyber-libel"
cases, defending both their anonymity and their online speech;
- Opposing attempts to restrain publications and
broadcasts; and
- Providing around-the-clock delivery of prepublication
and newsgathering counseling
FUTURE ADVISORY BULLETINS VIA EMAIL
We invite you to join our growing database of subscribers who are
choosing to receive our First Amendment Law Letter via email. Electronic
delivery will keep you on the cutting edge of industry issues and
reduce the amount of paper on your desk.
To take advantage of this service, please visit https://www.dwt.com/emailupdate.htm.
This First Amendment Law Letter is a publication
of the law firm of Davis Wright Tremaine LLP and is prepared by
its Communications, Media and Information Technologies Department,
Daniel M.Waggoner and Victor A. Kovner, co-chairs, Rochelle Wilcox,
editor and Steve Chung, associate editor.
Our purpose in publishing this law letter
is to inform our clients and friends of recent First Amendment and
communications law developments. It is not intended, nor should
it be used, as a substitute for specific legal advice since legal
counsel may be given only in response to inquiries regarding particular
factual situations. To change your address or to receive additional
information, please contact Margaret Roberts in our Seattle,Washington
office at margaretroberts@dwt.com.
Copyright © 2004 Davis Wright Tremaine
LLP
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