In CBS, Inc. v. Federal Communications Commission, 453 U.S. 367 (1981), the Supreme Court ruled that the First Amendment rights of political candidates and the public outweigh the First Amendment rights of broadcasters in their obligation to provide federal candidates “reasonable access” for political advertising.

The Court’s 6-3 decision upheld section 312(a)(7) of the Federal Election Campaign Act of 1971, which Congress had adopted to allow candidates for federal office to purchase air time for political advertising on broadcast stations.

NBC rejects request to run Jimmy Carter commercials

In December 1979, the reelection campaign of President Jimmy Carter attempted to purchase 30 minutes of prime time on each network for a documentary on Carter’s first term in office.

CBS offered two five-minute segments, one of which would air during prime time, and ABC indicated that it would make time available in January 1980. NBC rejected the request on the ground that it was “too early in the political season for nationwide broadcast time to be made available for paid political purposes.”

The Federal Communications Commission (FCC) ruled that the networks had failed to meet the “reasonable access” requirement stipulated for federal candidates under section 312(a)(7).

Court upholds FCC ruling requiring "reasonable access" for candidates

Writing for the majority, Chief Justice Warren E. Burger noted that the FCC was not required to honor all requests for air time by federal candidates, but was well within its authority in ordering the three networks to grant the Carter campaign access.

Burger added that the FCC had established guidelines for broadcasters in determining when candidates could purchase airtime under section 312(a)(7). He concluded that in this circumstance, the FCC’s contention that the three major networks had violated those guidelines was warranted and that section 312(a)(7) represented an “effort by Congress to assure that an important resource — the air waves — will be used in the public interest.” Burger added that the statutory right of access as defined by the FCC “properly balances the First Amendment rights of federal candidates, the public, and broadcasters.”

Dissent argues in favor of editorial judgment

Justice Byron R. White dissented on the ground that the decision negated “the long standing statutory policy of deferring to editorial judgments that are not destructive of the goals of the Act [the Communications Act of 1934].” White argued that the FCC had misinterpreted section 312(a)(7) and that Congress intended only “to codify what it conceived to be the pre-existing duty of the broadcasters to serve the public interest by presenting political broadcasts.”

Since the Court’s decision, the general rule for candidates for federal office is that broadcasters cannot set across-the-board policies, but rather must consider the needs of each individual candidate. Broadcast stations may, however, establish a policy of not selling any political advertisements during news programming.

This article was originally published in 2009. Roger Heinrich is a professor in the Department of Media Arts at Middle Tennessee State University where he teaches media law. He spent 26 years working in the broadcast industry, both in radio and television.

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