Court Rescinds Broadcast Right-to-Reply Rules

Less than a month before election day, a federal appeals court threw out long-standing rules that require broadcasters to give candidates a chance to respond to personal attacks and political endorsements.

The immediate effect of the repeal of the rules, which already had been suspended through the remainder of the 2000 campaign season, is unclear. But broadcasters, who had long argued that the regulations have a chilling effect on free speech, celebrated the court’s decision.

“This decision represents a historic victory in the 20-year fight to grant broadcasters the same free speech rights as print journalists,” said Edward O. Fritts, president of the National Assn. of Broadcasters.

The Radio-Television News Directors Assn., which also mounted a challenge to the rules, said broadcast journalists could expect enhanced 1st Amendment rights.

One regulation required TV and radio stations that endorse a political candidate to notify and give free rebuttal time to the candidate’s opponent. The other rule required that broadcasters provide politicians or other private citizens with free air time to respond when they have been attacked during a program.

On Wednesday, the U.S. Court of Appeals for the District of Columbia said the commission has failed to respond to opponents by justifying the existence of its rules.

The rules have “continued to exist in a vacuum, unsupported by reasoning that would demonstrate to the court that they are in the public interest notwithstanding some interference with and some burdens on speech,” the court said.

The court had asked the Federal Communications Commission a year ago to offer better support for the decades-old rules. In response, the commission finally said last week it would suspend the rules for two months to study their effect and the validity of the claims of broadcasters.

The court rejected the commission’s plans.

“It is folly to suppose that the 60-day suspension and call to update the record cures anything,” the court said. The FCC’s “response consists of an order that further postpones a final decision without any assurance of a final decision.”

The commission is weighing writing new rules, a process that takes months of soliciting public and industry comments.

“We will use this opportunity . . . to determine how best to ensure that the public receives balanced coverage of controversial issues,” said FCC Chairman William Kennard.

Public interest groups that support the rules said the court’s opinion reflected the agency’s failure to respond, not on the regulations themselves.

“They have said nothing new about the merits of these rules,” said Andrew Jay Schwartzman of the Media Access Project.

The practical effect of the court’s decision is difficult to measure. The commission gets a handful of complaints each year about violations of the personal attack rule, and the number of stations doing editorials has fallen in recent years, experts say.

Some observers said they will be watching to see if the absence of the rules leads to more political editorials and greater discussion of controversial topics during the last weeks of the election.

“If the argument of the broadcast industry has been, this is what is holding us back, then I say, let’s see your stuff,” said Paul Taylor of the Alliance for Better Campaigns.

Fritts said the court’s decision makes clear “that future FCC attempts to regulate free speech will be viewed with a high degree of skepticism.”