Political Broadcasting by Independent Committees

5. Content of Response

Licensees can usually require that a party’s reply to a personal attack be reasonably responsive to the attack.277 Licensees may not, however, censor or otherwise restrict a candidate’s response to an opponent’s “use,” a licensee editorial, or a personal attack.278 Accordingly, candidates need not respond directly to criticisms broadcast previously,279 or even discuss their candidacies.280 These restrictions on licensee censorship accord candidates the [*671] flexibility they need to control their own campaign strategies.281 Requiring a candidate to respond to specific IPC criticism would compromise the candidate’s independence in this area. Furthermore, such a restriction would enable an IPC to restrict a targeted candidate’s broadcasts to defensive refutations of insignificant or baseless charges. The FCC’s prohibition of licensee censorship of candidate broadcasts should therefore extend to candidate responses to IPC anti-candidate broadcasts.

Incumbents have no similar statutory protection from licensee intervention.282 Responses from the general public must address the specifics of a personal attack or issue-oriented editorial.283 Moreover, existing law does not prohibit licensee censorship in non-election periods.284 Creating a right to respond to IPC anti-incumbent broadcasts free of any restrictions is difficult to justify due to the similarity between these broadcasts and personal attacks. Although the absence of a broad response right permits an IPC to focus considerable attention on a particular issue and forces the incumbent to either respond directly or forgo response, incumbents are entitled to uncensored responses as soon as they become official candidates. The FCC should help licensees comply with this rule by furnishing guidelines as to what constitutes “reasonable responsiveness” in this context.

In sum, a licensee’s ability to censor responses to IPC broadcasts should depend on whether the response right has vested in a candidate or an incumbent. Licensees should be prohibited from censoring a candidate’s responses at all, so as to free the candidate from having to respond specifically to charges made by an IPC. However, a licensee may require that an incumbent’s response be reasonably responsive to the initial IPC broadcast.

6. Responding Party

A candidate’s appearance, even if only in response to a personal attack or a political editorial, constitutes a “use” entitling opponents to an Equal Opportunity response.285 Licensees permitting candidates to respond to a personal attach or political editorial could be required to honor potentially numerous response requests from opponents.286 To avoid beginning a “cycle” of Equal Opportunity obligations when applying the personal attack and [*672] political editorial rules, the FCC allows a licensee to grant a response right to a candidate’s supporters, rather than to the candidate personally.287 A response by supporters in such situations apparently does not trigger Zapple response rights in opponents’ supporters.288 Licensees should have a similar option to grant the right to respond to IPC anti-candidate broadcasts to supporters rather than directly to candidates. Outside of campaign periods, however, the IPC broadcast is analogous to a personal attack upon an identified public official. In such cases, as in the case of personal attacks,289 licensees should leave to the targeted incumbent the choice of whether to appoint a spokesperson or to respond personally, since a personal appearance by an incumbent does not trigger any Equal Opportunity rights.

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