You’ll remember that I’ve been impressed, amused, and intrigued by the Brian Chippendale (Lightning Bolt) and Brian Miller (Foot Village) online civic engagement brainchild Noise for Obama. No Age was very happy to chip in and offer an official artist statement pledging their allegiance to Senator Obama. They recently tried to do the same thing on late night broadcast television as well, but with less success. Did CBS censor No Age?
From Arthur:
Last week I got a call from Randy Randall, guitarist for Los Angeles rock duo No Age, who are currently on the Sub Pop record label. Randy was flustered, talking a mile-a-minute, about what had just gone down. The band had just finished performing a song for some sort of Craig Ferguson/CBS TV thing that was to be broadcast October 27–just over a week before the presidential election. Cameras were about to roll when suddently they were told by an on-set CBS underling that something needed to go: Randy’s Obama t-shirt.
This wasn’t because CBS wanted No Age to go topless. They’re keeping that for the spring break special. No, this was because, the CBS person said, the Obama shirt was on-air editorializing–a possible violation of some FCC edict which this person claimed called for equal time to be given to opposing political viewpoints.
One problem: the last remnant of the so-called “Fairness Doctrine” was repealed in 1987; the repeal was upheld by court ruling in 1989.
Since then, corrollary rules of the Fairness Doctrine–the “personal attack” rule and the “political editorial” rule–have also been struck down in the courts, with the last court ruling (and subsequent FCC order) coming in 2000.
In short, there is no fairness rule. Randy’s Obama shirt was perfectly broadcastable under every existing law.
But neither No Age nor their people at Sub Pop were aware of the Fairness Doctrine’s long-ago demise, and took CBS at their word.
After much deliberation, Randy put on another shirt, which said “Free Health Care,” the band played, and the show will, apparently, air.
Two thoughts on this:
1) I attended a number of panels on a similar issue at one of the CBI conferences a couple of years ago, so my memories on the details of this issue are a little fuzzy. A really important point, though, that this article leaves out is that the Equal Time Rule, similar to the Fairness Doctrine, does still exist. The name is a bit misleading, however, as it only applies to the two major parties (the reason Nader was pissed in 2000). It’s entirely possibly that the CBS representative misspoke or got their common law mixed up.
Equal Time is interesting insofar as it requires broadcasters to provide equal time, but not require them to broadcast equal time for both candidates. That is to say, if a candidate forfeits his or her opportunity, the broadcaster can still proceed to air a conversation or debate with the other candidate(s). Equal Time is also meant to be very precise, as in, if one minute is provided to one candidate, that minute must also be available to the opposing candidate. I’m not sure if this is actually tallied or if broadcasters are expected to follow “the spirit of the law.”
The general intent of Equal Time was to provide a check and balance on the media to keep broadcasters from setting election and policy agendas, though communication theory says that they still set the agenda and that’s another discussion altogether. Equal Time was originally established in the mighty Communications Act of 1934 (ya know, the one that created the FCC) in Section 315. Let’s take a look:
If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any—(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
Did CBS censor No Age? Well, sure, in a way. But who was in the right? I’m in no way a lawyer, but I was a pre-law student for a couple of years with some law hours under my belt, and I’d like to think I have a reasonable understanding of some of the umbrella issues presented in this scenario. First, I understand that, regardless of the government regulation issues, CBS is still a business venture, a private company with private sponsors, and can dictate what will be aired at their discretion whether it’s right or wrong. The following arguments attempt to entertain more lofty issues than that (censorship, Constitutionality, and originalist interpretations of Equal Time).
A quick pro-No Age discussion argument: The Late Late Show, to my knowledge, does not prohibit what their guests explicit express, spoken or otherwise, unless it’s in direct violation of indecency and obscenity codes. So, by default, it could be argued that equal time is implicit unless the producers of the Late Late Show disallow guests from wearing McCain schwag or speaking their mind politically. In addition, the clause strictly prohibits censorship of political advertising. Randall’s choice of apparel is a form of political advertising. Moreover, Randall’s statement is not subject to same set of standards set forth in Section 315(b), 2c, as the appearance was presumably not approved or endorsed by Obama’s campaign. Also, a reasonable person would not be unfairly swayed by way of Randall’s statement, nor does CBS demonstrate a clear intent to further such a political agenda. And finally, the statements made by guests are not the opinion of CBS, The Late Late Show, or any other persons other than the speaker themselves, suggesting no negligence on the side of CBS and the absence of any reasonably-interpreted editorializing. CBS’ actions against No Age could set a dangerous precedent suggesting that the network and producers can pick and choose what songs artists perform, what guests can or cannot say (within reason of FCC “community standard” guidelines), and other issues that fly in the face of the “marketplace of ideas” notion and, of course, First Amendment issues.
A quick pro-CBS discussion argument: Since the Late Late Show is not, by any stretch, a form of news, it is not subject to any of the exceptions of equal time. The scope of prohibiting campaign advertising censorship is written to imply a broadcaster cannot censor a political advertisement from a campaign as established in both sections (a) and (b), thus, not applying to No Age’s non-verbal statement. Moreover, no Constitutional issue exists insofar as No Age appeared”at will” on the Late Late Show, tacitly agreeing to the rules and guidelines set forth therein by the broadcaster (an appearance is, essentially, employment, the standard of “at will”). I would be interested to see a network television appearance contract and rider.
I’m very anti-censorship myself and I feel that there’s a strong argument that could condemn the actions of CBS. However, I don’t feel CBS acted completely unreasonably. This is not to say that this particular drama doesn’t suck, I’m simply asserting that these concerns, from both the network and the band, are understandable. Pragmatically speaking, CBS had to engage in a risk assessment. Remember, this was the network that was heavily scolded by the FCC for Janet Jackson’s Halftime Show shenanigans. In their interests, it would be silly to risk incurring the oft arbitrary wrath of the FCC in exchange for not bumming No Age out. The cardinal rule during my time at WRFL concerning what was appropriate for broadcast was, in the presence of doubt, don’t do it. In this sense, this particular instance was vague enough to provide various arguments on either side, and CBS wasn’t willing to risk it. What should be condemned is the over-eagerness of the FCC, without much oversight, to determine what is or isn’t editorializing, not necessarily CBS’ wariness of paying punitive fees.
2) Why… in the hell… does motherfuckin’ Craig Ferguson have a show? Watching him make jokes is like watching the Challenger take off.
Enjoy two slam jams from Weirdo Rippers, which I like better than Nouns I think, whilst you contemplate all these issues and feel your head implode. You can buy Weirdo Rippers here.
MP3 :::
No Age – Loosen This Job
No Age – Boy Void
