October 12, 2004

More on Sinclair Broadcasting and Election Law

Yesterday I posted these comments, and I have received a number of angry e-mails from Democratic supporters. I can understand why the supporters are angry---it is indeed highly unusual for a broadcast station to air what is essentially a commentary against one candidate. But that doesn't make it illegal. Federal election law grants an exemption for the media to broadcast bona fide news stories and commentaries, so long as the station is not controlled or owned by a political party or candidate (this provision got Steve Forbes in trouble back in 1996, when his commentaries ran in Forbes magazine while he was running for president).

It also appears that the provisions don't violate federal communications law provisions guaranteeing equal time. See this Los Angeles Times report.

Now, one can argue that being unfair and unbalanced violates the public interest provisions of federal communications law. That may work as a long-run strategy, but it won't keep the documentary off the air. Nor should it. If a liberal-owned television station wished to broadcast Fahrenheit 9/11 in the next few weeks, should that be illegal?

According to press reports, the DNC is planning to file a complaint with the FEC alleging that showing the ad is an illegal in-kind contribution. The media exemption I discussed earlier applies to an independent action; it does not exempt contributions. So if the Democrats could show Sinclair coordination with the Bush campaign or the RNC, there could be a basis for a complaint. But so far I have seen no evidence of coordination.

So what are disaffected Democrats to do? Josh Marshall suggests a shareholder derivative suit or a boycott of Sinclair's advertisers. But running to the FEC or FCC is unlikely to affect policy.
UPDATE: Don't miss Bob Bauer's comments in which he tries to thread a very thin needle.

Posted by Rick Hasen at October 12, 2004 07:30 AM