Abolish the FCC’s Equal-Time Rule

D espite his insufferable theatrics, late-night “comedy” host Stephen Colbert has made an allegation that should be taken seriously. If his account of events is correct (which is not a given), some protected political speech has been unjustly chilled.

Colbert planned to film a characteristically friendly interview with a Democratic Senate candidate in Texas, James Talarico, for his talk show. In Monday’s monologue, Colbert told his television audience that Talarico would not be appearing as scheduled because CBS, the network that carries the show, had told him “in no uncertain terms” that the interview could not be broadcast.

Apparently, lawyers at CBS were worried that showing Talarico’s interview would raise the ire of the Federal Communications Commission (FCC). Under new FCC guidelines, published under Commissioner Brendan Carr, the interview could be considered a violation of the “equal-time rule,” which requires television and radio broadcasters to afford equal time to all political candidates for a given public office. The current iteration of the rule was enacted as a provision in the Communications Act of 1934, which created the FCC’s regulatory authority, and remains on the books to this day. Had Colbert interviewed Talarico without hosting Democratic primary opponent Jasmine Crockett the next night, the FCC could have accused CBS of breaking the law.

CBS is pushing back on Colbert’s account. According to Brian Stelter, the network said the show was not prohibited by the network from broadcasting the interview but was advised that it could trigger the equal-time rule for other candidates, including Crockett. So, CBS says, “THE LATE SHOW decided to present the interview through its YouTube channel with on-air promotion on the broadcast rather than potentially providing the equal-time options.”

Either way, the rule in question is antiquated. Like state-level adultery prohibitions, the FCC’s equal-time rule is part of a storied tradition of American laws that are so seldom enforced that they are practically irrelevant. It was devised to ensure that the media — which, in 1934, was limited by finite radio waves to just a handful of broadcast options — presented candidates to the public in equal amounts. Enforcement was rigid until the 1950s, when increasingly fringe candidates appealed to the rule to put themselves on TV whenever their opponents appeared on news or entertainment programs, including talk shows.

Congress and the FCC began carving out exemptions for various types of coverage as candidate appearances on television exploded, and enforcement of the equal-time rule was rare by the late 1980s. Yet the rule continued to produce absurd outcomes, as broadcasters feared they could be targeted by the FCC so long as it remained law. During the 2003 gubernatorial recall election in California, television stations stopped airing movies that starred Arnold Schwarzenegger because he was running in the race. Every minute that the Terminator appeared on screen might have required producing a minute’s worth of independent candidate Arianna Huffington.

The equal-time rule’s only real use nowadays is for the administration in power to shut down the speech of its political enemies. For decades, the FCC has recognized talk-show interviews of candidates as exempt from the rule, classifying them as “bona fide news interview programs.” That changed in January, when the FCC issued guidance stating that it “has not been presented with any evidence that the interview portion of any late-night or daytime television talk show program on air presently would qualify for the bona fide news exemption.” Furthermore, the agency cautioned that “a program that is motivated by partisan purposes, for example, would not be entitled to an exemption under longstanding FCC precedent.”

In other words, progressive talk shows could no longer interview political candidates without risking the FCC’s wrath. Notice that radio broadcasts were excluded from the tightened guidance, sparing hundreds of conservative talk-radio stations that host Republican candidates almost exclusively. Anyone who believes that those interviews are less nakedly partisan than the interviews of Democrats hosted by Jimmy Kimmel or Stephen Colbert is fooling themselves.

This was not the first time Trump’s FCC had gone after left-wing talk shows that the president doesn’t like. Commissioner Carr spent much of last year threatening to revoke the broadcast licenses of networks whose content did not comport with the “public interest,” as astutely defined by him. After Jimmy Kimmel lied on his show about the political affiliation of Charlie Kirk’s assassin, Carr urged ABC to bring down the hammer on him, warning publicly, “We can do this the easy way or the hard way.” Owners of local affiliate stations responded by temporarily removing Kimmel’s show from their airwaves.

Although the FCC may not have expressly instructed CBS not to broadcast Stephen Colbert’s interview with James Talarico, which the show ultimately posted to its YouTube channel, the legal uncertainty it created certainly deterred the network from airing it. Commissioner Carr proclaimed on social media following last month’s updated guidance, “For years, legacy TV networks assumed that their late-night & daytime talk shows qualify as ‘bona fide news’ programs — even when motivated by purely partisan political purposes. Today, the FCC reminded them of their obligation to provide all candidates with equal opportunities.”

Thankfully, we no longer live in a world where the media is dominated by a few major broadcasters and, thus, where a federal agency can regulate nearly all the political content we receive. The internet enables anyone who wants to watch Colbert’s sympathetic interview with Talarico to do so. One can also hear from Talarico in hundreds of other online videos, cable news clips, and podcast appearances. The equal-time rule’s injuries to free speech are much less severe in the modern age than they used to be.

Our unprecedented access to limitless media, however, also obliterates the case for continuing the equal-time rule in the first place. Americans can see as much of any political candidate as they please, regardless of how much time traditional television and radio stations give them to talk. Broadcast media is now just a small facet of a sprawling news and entertainment ecosystem, not the exclusive format of public political discourse.

Personally, I do not think that CBS viewers suffered much from being deprived of watching Stephen Colbert fawn over a priggish state lawmaker from Texas. But the federal government should have no say in determining what political content television audiences might find valuable. The regulation of public discourse is a responsibility too dangerous to vest in any centralized authority — especially a presidential administration with a vested partisan interest in certain electoral outcomes. That logic extends well beyond Donald Trump, but he is the one who has forced the issue.

The Supreme Court has long held that broadcasting rules constitute a reasonable exception to the First Amendment’s ironclad prohibition on regulating political speech, due to the scarcity of airwaves. Now that this scarcity has been made irrelevant by technology, the judiciary ought to stop the FCC’s media intimidation by declaring the equal-time rule an unconstitutional relic. The First Amendment should protect Stephen Colbert’s right to have whomever he wants on his show — just as much as it protects sensible viewers’ right to switch channels.