Equal Time and late-night censorship

Published Oct 14 2008, 04:34 PM by Kyle Smeallie

Jim Morrison and the Doors were scheduled to play their number one hit, "Light My Fire," on a 1967 episode of The Ed Sullivan Show, but there was one line to which the long-time host took offense. "Girl, we couldn't get much higher," sparked Sulivan's ire, and he demanded the line be re-written for the late-night show's performance. Morrison agreed. But when the cameras were rolling, the enigmatic front man strayed from script and - gasp! - sang the original line. Sullivan was furious - he refused to shake Morrison's hand after the performance and vowed never to have the L.A. band on his program again.

This chapter in rock'n'roll lore is now more than four decades old, but it appears that late-night CBS censorship is not a thing of the past. Last week, while taping an episode for the October 27th edition of The Late Late Show With Craig Ferguson, CBS representatives informed a band member that he could not wear a pro-Obama shirt while performing. Randy Randall, guitarist for the experimental rock group No Age (also from L.A.), was told that donning the threads would violate the Equal Time Rule, a 1934 law aimed at giving politicians equal on-air time.

Surely it was a different beast than Morrison faced, but the effect is strikingly similar - censoring artists' expression, whether quasi-cultural or expressly political.

Equality under the law

The Equal Time Rule has gone through several changes and has been adapted to new media, but the crux remains the same: a station that gives or sells time to one candidate must make the same offer to all other candidates for that office. (It should not be confused with the Fairness Doctrine, an FCC policy - abolished in the 1980s - which required broadcasters to present contrasting views in matters of public controversy.)

The rule's rationale is rooted in basic notions of evenhandedness - if a product is available, it must be sold to all qualified customers on an equal basis. At the time, it was considered progressive policy - bear in mind, this was the era of "separate but equal." But out of this quite sensible rule arose a doctrine that has inhibited network's political programming.

Exemptions to the rule

The rule focuses on giving equal time to candidates, but it's a tough sell to extend this to the apparel of a fresh-faced punk rocker. (Singer-songwriter Regina Spektor recently wore an Obama belt while performing on NBC's Late Night with Conan O'Brien - with no FCC consequences). Apparently, though, CBS was sufficiently scared.

"Those candidates who are on the ballot in at least 10 states could have asked for equal time from the network. Given that, CBS employees followed guidelines and asked the band member to remove his T-shirt," according to a CBS statement made last week to the Los Angeles Times.

This interpretation contrasts current readings of the Rule. In 1959, with broadcast technology changing, several exemptions were made to the law. Equal opportunity requirements were null in cases of news interviews, newscasts, news documentaries, and on-the-spot coverage of news events. In short, if a candidate appears on a bona fide news program, the station would not be obligated to afford equal time to his/her opponent.

Equal time in a modern context

In today's context, where the lines between news and entertainment are often unclear, the FCC has been reluctant to apply the equal time provisions. The FCC "has expanded its category of broadcast programs exempted from political access requirements to include entertainment shows that provide news or current event coverage as regularly scheduled segments of the program," according to Dwight Teeter, author of Law of Mass Communications. A late-night program, which often uses news as fodder for jokes, would appear to fit this paradigm.

Nonetheless, No Age was just minutes away from taking the stage when a "talent booker" informed Randall he couldn't perform with his T-shirt. At first, they considered walking off the set. Instead, Randall chose to turn the shirt inside out and write "Free Health Care" in scribbled Sharpie.

"I felt it was important to voice my choice for presidential candidate, Barack Obama, seeing as the episode would air eight days before Election Day," Randall wrote in an email to Pitchfork, a music website. When that was denied, "Dean [No Age's drummer] and I decided that it would be better to take advantage of the stage we had at our disposal...Access to affordable health care is an issue very near to my heart for many personal reasons and I am sure that many of you can relate."

Who's to blame?

As this story gains further coverage, CBS - like it did 40 years ago - will be left looking out-of-touch and all to eager to please government bureaucrats.

But maybe it isn't entirely CBS's fault. Following the infamous 2004 Superbowl "Nipplegate" affair, CBS was fined $550,000 by the FCC. Though the fine was overturned on appeal, you can be sure that the "suits in New York" (Randall's words) remember the legal headache that ensued.

The broadcast company (along with other major stations) also has an important Supreme Court appeal in the upcoming term. The case centers on the ability of the FCC to impose fines for "fleeting expletives" or spontaneous (as in, not planned by the broadcaster) usage of curse words in live broadcasts.

In these cases, the live programs did not allow CBS the opportunity to "bleep" the expletives or "blur" the oh-so-horrid nipple. But in the pre-taped Late Late Show, CBS foresaw an opportunity to avoid arousing FCC intervention, and it chose the most conservative reading of an archaic rule - instead of allowing an artist's expression. It is, unfortunately, the chilling effect that government regulation has on speech: even in the most crucial moments, when artists feel compelled to speak out on politics, their speech is stifled. Regardless of the Equal Time Rule's good intentions, it has now clearly become a tool for dampening political discourse.