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The FCC, Indecency, and Anti-Abortion Political Advertising, 3 Vill University of Miami Law School University of Miami School of Law Institutional Repository Articles Faculty and Deans 1996 The CF C, Indecency, and Anti-Abortion Political Advertising Lili Levi University of Miami School of Law, [email protected] Follow this and additional works at: https://repository.law.miami.edu/fac_articles Part of the Communications Law Commons, and the Election Law Commons Recommended Citation Lili Levi, The FCC, Indecency, and Anti-Abortion Political Advertising, 3 Vill. Sports & Ent. L.J. 85 (1996). This Article is brought to you for free and open access by the Faculty and Deans at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. THE FCC, INDECENCY, AND ANTI-ABORTION POLITICAL ADVERTISING Liu LEvi* TABLE OF CONTENTS Introduction ................................................ 86 I. The Scope of Indecency ............................... 99 A. The Broadcasters' Claimed Dilemma ............... 99 B. The Open Texture of the FCC's Indecency D efinition .......................................... 106 1. The FCC's Options on a Literal Reading ........ 107 2. Context as the Determinant .................... 109 3. The Underlying Vision of Indecency ............ 110 C. The Problems of Constitutional and Statutory Interpretation Avoided by the FCC's Approach ..... 114 II. The Scope of Political Advertising Rights ............... 121 A. The Statutory Dimension ........................... 121 1. Section 312(a) (7) and the Meaning of Reasonable Access .............................. 123 a. The Text and Legislative History of Section 312(a) (7) ................................... 124 b. Administrative and Judicial Interpretations of Section 312(a) (7) ........................... 130 2. The Prohibition of Censorship Under Section 315 ............................................. 139 a. Legislative History and the Meaning of Censorship in Section 315 ................... 140 b. Judicial and Administrative Precedent ....... 153 c. Differences between Channeling and "Censorship" . ............................... 161 3. The Proper Level of Deference on Judicial Review .......................................... 166 B. The Constitutional Dimension ...................... 172 III. The Wise Policy Approach to "Harmful" Political A dvertising ............................................. 181 * Professor of Law, University of Miami School of Law. I am deeply grateful to John Cairns, Ken Casebeer, Ed Cohen, Mary Coombs, Pat Gudridge, Jim Kainen, Sharon Keller, Marilys Nepomechie, Bernie Oxman, Steve Schnably, and Irwin Stotzky for their generosity with time and comments. Amanda Barry, Chris Nikides, Andy Patten, and Rick Strul deserve many thanks for research assistance. (85) 86 VILLANOVA SPORTS & ENT. LAW JoURNAL [Vol. III: p. 85 A. Policy Assessments of the November Ruling ........ 182 1. Institutional Arguments ......................... 182 a. Government Neutrality and Editorial Freedom .................................... 182 b. Two Critiques of Institutional Arguments for Broadcaster Discretion ...................... 184 (1). Mercantile Pressures on Broadcasters .. 184 (2). The Strategic Character of the November Ruling ...................... 186 2. Substantive Arguments .......................... 189 a. The Protection of Political Debate ........... 190 (1). Arguments from Manipulation ......... 190 (2). The Pros and Cons of a Model of Deliberative Politics .................... 198 (3). The Ambiguous Effect of the Political "Market" .............................. 202 b. The Protection of Children ................. 204 B. The Better Alternative .............................. 210 Conclusion ................................................. 218 INTRODUCTION Since the 1992 election season, pro-life candidates for federal elective office have aired graphic television advertisements depict- ing abortion or aborted fetuses. Indiana Republican congressional candidate Michael Bailey, a self-styled "Christian media specialist," inaugurated the graphic ads in 1992.1 One of his spots showed tweezers picking through a petri dish containing the crushed head, arms, and legs of an aborted fetus as a woman's voice intoned, "[i]t's a woman's choice." 2 Bailey's advertisement was not an iso- 1. Michael E. Bailey, Censorship by Media Elites Will Ultimately Threaten the Repub- lic, 47 FED. COMM. L.J. 159, 160 (1994); William Booth, Antiabortion TV Ads Catch On in Campaigns,WASH. POST, July 20, 1992, at Al; David Jackson, TV Ads on Abor- tion Raise Speech, Obscenity Issues; Senate Hopeful May Air Spots with Dead Fetuses, DAL- LAS MORNING NEWS, Feb. 14, 1993, at A39; Christopher Stern, Antiabortion Ads Resurface at FCC, BROADCASTING & CABLE, Apr. 18, 1994, at 36 [hereinafter Stern, Antiabortion Ads]. On Bailey's activities as a Christian media specialist, see Bailey Plans More GraphicAnti-Abortion Ads for TV, COURIERJ. (Louisville), July 2, 1993, at B7 [herein- after Bailey Plans];Jon Lafayette, Candidate'sAds Raising TV Fears, ELECTRONIC ME- DiA, Apr. 27, 1992, at 1 [hereinafter Lafayette, Candidate'sAds] (noting that Bailey ran his own promotion company until he founded Christian Media Ministries in 1991). 2. Booth, supra note 1; David Kelly, Challenging the Right to Air, HOLLYWOOD REP., Aug. 11, 1992; Kate Maddox, Graphic Ads Take Political Center Stage, ELEC- TRONIC MEDIA, Aug. 17, 1992, at 1 [hereinafter Maddox, Graphic Ads]. 1996] ANTI-ABORTION POLITICAL ADVERTISING lated phenomenon, in part because he lent some of his abortion footage to other pro-life candidates for similar political campaign ads elsewhere.3 Some of the commercials even used the same nar- rative lines: "When something is so horrifying that we can't stand to look at it, then why are we tolerating it? Pro-choice is a lie. These babies would never have chosen to die."4 In Georgia, Repub- lican congressional candidates Daniel Becker, Jimmy Fisher, and Mark Myers each ran an advertisement showing "Choice A," a smil- ing baby, and "Choice B," a fully developed fetus assertedly aborted in the last weeks of pregnancy.5 Some ads purported to show a 3. Booth, supra note 1; Maddox, Graphic Ads, supra note 2, at 1. See alsoJack- son, supra note 1, at A39 (stating that Bailey "supplied footage to like-minded can- didates in 18 states, including California, New York and Illinois"); Jeff Kunerth, Candidates Turn to Graphic TVAds to Spread Anti-abortionMessage, ORLANDO SENTINEL TRm., July 12, 1992, at A5 (reporting on "copycat candidates" and Bailey's provi- sion of videotape to others); Lafayette, Candidate's Ads, supra note 1, at 1 (noting calls received from potential candidates in Texas and Montana). On the use of graphic anti-abortion advertisements generally since 1992, see Hille von Rosenvinge Sheppard, Comment, The Federal Communications Act and the Broadcast of Aborted Fetus Advertisements, 1993 U. CHI. LEGAL F. 393, 393 (1993) (stat- ing that such advertisements aired in 17 states); Michael deCourcy Hids, Senator Who Wouldn't Run Has Won, N.Y. TIMES, Dec. 6, 1992, § 1, at 26 (reporting that anti- abortion candidates in 14 Congressional and Senate races used aborted fetuses in ads in 1992); Jackson, supra note 1. 4. Booth, supra note 1 (advertisement for Georgia congressional candidate Jimmy Fisher); Crier & Company, (CNN television broadcast, July 24, 1992); Cross- fire, (CNN television broadcast, July 24, 1992) (advertisement for Georgia Republi- can congressional candidate Daniel Becker); Colorado Christian Pro-Life Party Congressional Candidate Matt Noah Advertisement (on file with author). Some of the Becker and Bailey advertisements apparently include footage from "The Hard Truth," an anti-abortion documentary purportedly showing fetuses from third tri- mester abortions. Charles Walston, 4 GOP Candidates Support Graphic Anti-abortion Ad, ATLANTAJ. & CONsT.,July 1, 1992, at C5;Jackson, supra note 1. Becker claimed that the fetuses were taken from garbage dumpsters outside abortion clinics. Wal- ston, supra. 5. Booth, supra note 1; Sheppard, supra note 3, at 393. Similarly, one of Daniel Becker's advertisements featured a shot of the candidate holding an infant and saying: "I'm Daniel Becker. I'd like you to meet five day old Lydia. Six days ago under current law, she could have been aborted." Gillett Communications of Atlanta, Inc. Petition for Declaratory Ruling, In re Applicability of Section 312(a) (7) of the Communications Act of 1934, as amended, and Section 73.1944 of the Rules of the Commission to Certain Political Advertisements, at 2 n.1 (filed July 28, 1992) (on file with author) [hereinafter Gillett Petitionfor Declaratory Rul- ing]. The rest of the advertisement was described as follows by the station that aired it: Right before the word "aborted" the image cuts to the first of six shots of aborted fetuses, some held in a human hand. All are badly discolored in whole or in part, and some appear covered with a wet, dark, shiny sub- stance. While these six clips are being shown, a female announcer recites statistics purporting to show the prevalence of third trimester abortions. The spot closes with the candidate claiming that he has placed before the viewer both life and death in requesting their vote. 88 VILLANOVA SPORTS & ENT. LAW JOuRNAL [Vol. III: p. 85 gloved human hand holding fetal arms that had allegedly been ripped from the fetus. 6 Other
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