Randall Terry: Abuse Of Federal Candidate Access
January 31, 2012
Comble Carlyle Sandridge & Rice, LLP
Broadcasters facing presidential primary contests across the country have been faced with a difficult decision from an issue advocate seeking to ban legal abortion. Randall Terry, an anti-abortion activist, is seeking to exploit the mandatory access provision of section 312(a)(7) of the Communications Act to require broadcasters to accept and air his graphic anti-abortion ads in 40 cities during the Super Bowl next week. Terry is the founder of Operation Rescue, an anti-abortion organization that has since disavowed him.
Terry is claiming to be a candidate for nomination as the Democratic party candidate for President of the United States. The online magazine Slate and the Christian Science Monitor both report that “Terry acknowledges his campaign is designed to take advantage of FEC and FCC regulations allowing federal candidates to run uncensored ads to ‘bring America face to face with this massacre of the innocents.’”
Terry’s own statements demonstrate that he is only trying to using federal law to force broadcasters to air his anti-abortion ads. According the January 29th 60 Minutes story on the Super Bowl, the game should attract some 163 million viewers. To see what he would like to foist on an unsuspecting public in the middle of the Super Bowl next Sunday, and in some pre-game shows, you can view the ads on Terry's website.
*** WARNING: THEY ARE VERY GRAPHIC***
Thanks to the Democratic National Committee, however, there is some hope for the broadcaster who would choose to refuse these ads. In 1996, Lyndon LaRouche had sought to require WSEE-TV in Erie, PA, to carry his advertisements. LaRouche argued that he was entitled to access as a candidate on the Pennsylvania primary ballot and as a candidate for the Democratic Party nomination during the period between the Pennsylvania primary and the Democratic National convention. The station claimed that LaRouche was not a legally qualified candidate for federal elective office, and that, therefore, the station was under no obligation to afford him access to its facilities.
The FCC agreed with WSEE. It decided that the station had not acted unreasonably on two grounds:
- At the time of his request, the Pennsylvania presidential primary had already taken place; and;
- The Chairman of the Democratic National Committee had determined that LaRouche was not a qualified candidate for nomination to the office of President by the Democratic Party.
On Friday evening, Patrick Gaspard, Executive Director of the Democratic National Committee, issued a letter to all concerned stating that “Mr. Terry is not a bona fide Democratic candidate or representative of the Democratic National Committee.” Furthermore, “Mr. Terry has proclaimed that he is a ‘lifelong Republican’ and publicly conceded that he is not legitimately running as a true Democratic candidate, but only hoping to exploit the rules concerning candidate access to television airtime.”
Further, Gaspard explains why Mr. Terry cannot qualify under the Delegate Selection Rules for the 2012 Democratic National Convention, which essentially makes his purported candidacy irrelevant to the party’s presidential candidate selection process, even were he to obtain the most votes in any state.
The Patrick Gaspard DNC letter can be seen HERE
In LaRouche, the Commission stated that it defers to state authorities as to whether a candidate is legally qualified. In the same vein, it will defer to the rules and procedures established by the Democratic Party for nominating its candidate for the office of President as to whether an individual is legally qualified for the party nomination. Since the party Chairman determined that LaRouche was not qualified to be considered for its nomination, the Commission held it was not unreasonable for WSEE-TV to conclude that LaRouche was not a legally qualified candidate within the meaning of the Commission’s rules.
Furthermore, in response to a LaRouche challenge to the Democratic Party Chairman’s determination, the United States District Court for the District of Columbia confirmed that the national political parties “possess the right under the First Amendment to ’identify’ those who constitute their 'association' and to 'limit the association to those people.’”
So, while the FCC LaRouche case was decided on both grounds -- that he was seeking candidate status after the Pennsylvania primary had taken place and because he was not recognized by the Democratic party -- the District Court opinion lends credence to the argument that party rejection alone is sufficient to deny candidate status in a primary to a candidate who claims to be qualified for that party’s nomination.
It bears noting that under three-part test for establishing one’s bona fides as a candidate entitled to the benefits of the Communications Act’s access privilege, it is up to the candidate, and not the broadcaster, to demonstrate that he or she satisfies the legally-qualified candidate criterion. Therefore, in view of the Gaspard letter, it would not be unreasonable to challenge Mr. Terry’s qualifications unless he can demonstrate how he would nevertheless be able to obtain the Democratic Party nomination at its 2012 national convention.
Of further concern to broadcasters is the observation of some who have screened the Terry commercial that it meets the FCC definition of obscene. Therefore, there is the possibility that without the immunity of the no-censorship protection of Section 315 -- which applies only to a “use” by a legally-qualified candidate -- a broadcast of the Terry abortion commercial could subject the licensee to a criminal charge of having broadcast obscene material.
Any broadcaster faced with a demand by Mr. Terry for access to air his anti-abortion commercial should immediately consult counsel to determine the options available to the station.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.