Court Limits TV Control of Political Ads

Television stations may not refuse to broadcast a candidate’s political advertisements or air them only in off hours just because they contain graphic images of aborted fetuses, a federal appeals court ruled Friday.

The Communications Act of 1934 gives candidates a “special right of access” to the airwaves and channeling their controversial ads to a “broadcasting Siberia” after midnight amounts to a kind of censorship, the court said.

The 3-0 ruling by the U.S. Court of Appeals here overturns a 1994 order of the Federal Communications Commission that told broadcasters they could act to protect children from disturbing images.

While Friday’s decision grew out of the abortion controversy, lawyers said that it will clear the way for graphic political ads on controversies ranging from gay rights and the death penalty to gun control, euthanasia and animal rights.

“The [communications] law confers a special right on candidates for public office and treats their speech as the highest form of speech in a democracy,” said Andrew J. Schwartzman, the media attorney representing the antiabortion candidate from Georgia who challenged the FCC policy.

“The electorate gets to speak too, and in this case the candidate was rejected,” he added.

The case began in July 1992, when Daniel Becker, a Republican candidate for Congress, paid for a campaign ad in prime time that included purported photos of aborted fetuses. After viewers called to complain, the managers of station WAGA-TV in Atlanta asked the FCC for permission to air future ads after midnight.

“Graphic depictions of excised or bloody fetal tissue” are “unsuitable for children,” the station argued. In October, the station refused Becker’s request to broadcast at 4 p.m. a 30-minute political program entitled “Abortion in America: The Real Story.”

Becker won the Republican primary but lost in the general election.

In 1994, when his case reached the five-member FCC, panelists sided with the TV station. Broadcasters must air controversial political ads but they may channel them to late-night hours to protect children, the commission said.

The appeals court, however, said that the law gives candidates the right to seek the widest possible audience for the message they seek to convey.

Giving station managers a “blank check” to decide what is acceptable would squelch the free-speech right given to the candidates, wrote Judge James Buckley. “In many instances, it will be impossible to separate the message from the image when the point of a political advertisement is to call attention to the perceived horrors of a political issue,” he wrote.

The ruling did not rest on the 1st Amendment, only upon the words of the Communications Act. The judges noted also that graphic ads are not deemed to be “indecent” or “obscene.” If they were, the station managers could have limited their viewing or rejected them entirely.

The nation’s leading antiabortion groups did not participate in the case.