Why Trump Is Stuck With 'Saturday Night Live'

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A federal rule requiring fairness on broadcast television is gone, and that’s probably for the better.

By Noah Feldman
March 18, 2019, 1:35 PM EDT

President Donald Trump apparently caught a rerun of “Saturday Night Live” this weekend, and decided to tweet Sunday morning that the NBC program should be investigated by the Federal Communications Commission for parodying him so much. That’s legally absurd.

Link to tweet

Link to tweet

But Trump’s lament reflects the persistent power of the old idea that television networks should be fair to all political sides and give equal time to all candidates for office. It’s worth asking: What’s the current state of the law on broadcaster fairness? And beyond the law, should fairness be an objective of any kind in the era of cable news and social media?

It’s important to distinguish the two legal principles derived from the federal regulation of broadcasting: the fairness doctrine and the equal-time rule.

The fairness doctrine, instituted by FCC regulation in 1949, required radio and television broadcasters to be honest, equitable and balanced in presenting matters of public importance. It applied only to licensed broadcasters using the airwaves, not to newspapers. Cable television hadn’t yet been invented.

The doctrine was challenged as a limitation on broadcasters’ freedom of speech, because it obviously affected what they could and must say. In an important 1969 decision, Red Lion v. FCC, the U.S. Supreme Court upheld the fairness rule.

The court reasoned that because bandwidth was a scarce, limited resource, owned by the government and effectively leased to licensed broadcasters, the usual First Amendment limits on regulation didn’t fully apply.

The court also hinted at a broader public right to know, albeit in language it has rarely, if ever, used since. “The people as a whole,” the court said, “retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment.”

Crucially, the court said, “it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”


Much more: https://www.bloomberg.com/opinion/articles/2019-03-18/trump-snl-and-the-fairness-doctrine-what-fcc-rules-say-today



Equal time doesn’t apply to parody. Photographer: Will Heath/NBC/NBCU Photo Bank via Getty Images