We gave a lot of coverage to what this author will call the Equal Time Controversy today and yesterday. As you might recall, Kamala Harris did a groaner of an appearance on Saturday Night Live, doing her version of the mirror skit. Of course, the whole thing was a mainly tedious attempt to pretend they were making jokes at her expense, but never saying anything too biting about her. This turned the skit into not so much making fun of a public figure, as a PSA to vote for her.
But she wasn’t the only person to appear on Saturday Night Live that night. So did Tim Kaine, former vice-presidential running mate to Hillary Clinton and current Senator of Virginia, who is running against Hung Cao in this year’s election. Here’s that skit:
To be fair, this was actually a funnier skit than the Kamala skit. They seemed to be mocking a certain kind of leftist who pretends to care passionately about politics, and every election is the most important in their lifetime, but they actually couldn’t be bothered to even learn the names of the people involved. And as far as Tim Kaine is concerned, they are frequently making the joke that he is forgettable, even calling him ‘Tim Scott’ and saying that he is almost exactly like Tim Walz (except Tim Walz is much goofier and much more of a liar, in our opinion). So they are making fun of Kaine as bitingly as they could given his elevator music personality. But that might still play well with Virginia voters who might think it is nice to see Kaine be so self-effacing.
And for the record, who is Hung Cao? He’s a pretty cool first-generation immigrant who fled Vietnam as a child with his family. We won’t go on and on about him, but here’s his quite powerful ad:
In any case, Catherine Herridge made a great point regarding the Equal Time Controversy:
Wait a second….
— Catherine Herridge (@C__Herridge) November 4, 2024
Independent journalist @shellenberger reports there was another potential equal time breach on SNL with the VA senate race.
Shouldn’t @NBCUniversal offer equal time to Kaine’s GOP rival @HungCao_VA before Election Day? https://t.co/DKyhPXNzde
This is plainly building off points by Michael Shellenberger.
Did NBC decide to boost @timkaine because his opponent @HungCao_VA could defeat him?
— Michael Shellenberger (@shellenberger) November 3, 2024
*By law,* NBC must give Cao "equal time."
These are flagrant violations of the law that can't be remedied in under 40 hours.https://t.co/H9tTubBCGB
As we pointed out on Twitter/X in relation to Kamala’s appearance, this is a law, and there are questions under it:
Here’s the statute https://t.co/cJr8nAbF7U
— (((Aaron Walker))) (@AaronWorthing) November 3, 2024
The statute isn’t long or complicated. Here’s the meat of it:
If any licensee [entity licensed by the federal government to broadcast] shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any [news broadcast] ... shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
We skipped over the language discussing the various exceptions for a genuine news broadcast, because no one could argue with a straight face that either of those skits count as a news broadcast and later on, they also make it clear that the statute also requires equal opportunity to place ads on a broadcast station. In any case, it is precisely because of this equal time rule that initially Lorne Michaels said they wouldn’t be likely to invite anyone to do an appearance before the election and we think the longer quote is even more revealing:
You can’t bring the actual people who are running on because of election laws and the equal time provisions. You can’t have the main candidates without having all the candidates, and there are lots of minor candidates that are only on the ballot in, like, three states and that becomes really complicated.
This is something many people have been missing. We are hearing now that Trump got to put up basically a free ad during a NASCAR event, but what about every other person running for President? Just here in Virginia, we had the following third-party candidates and independents: Jill Stein, Claudia De La Cruz, Cornel West and Chase Oliver. Now, we both know that none of these people are going to win tomorrow. The best they can hope for is to have a strong showing and maybe even serve as a disruptor. The left hates Jill Stein with a burning passion, for instance, because they think she helped Trump get into office in 2016. But the law doesn’t allow NBC to only give equal time to candidates that have a chance at winning. They all have this legal right.
Fortunately for SNL, the Tim Kaine issue is much simpler. Hung Cao is his only opponent, so the equal time requirement was less onerous.
And all of this makes this author uneasy, because we are talking about regulation of expression and, well, this author doesn’t think this is right under the First Amendment.
Let’s not forget that this law dates back to 1934. That would make it a Franklin-Roosevelt-era law, and if you think that FDR had a really firm grasp on the concept of freedom, we’d like to introduce you to a few Japanese people who were held in internment camps who might disagree.
The fundamental premise of these laws is that, first, the public owns the broadcast airwaves. That’s why you have to get a license to broadcast, instead of just doing it (if you have the skill and equipment). Second, because there is only so much space in the broadcasting spectrum, the stations that exist must serve ‘the public interest.’
And this author has some sympathy with the notion that a ‘wild west’ approach to broadcast just wouldn’t work. We don’t have any trouble with the FCC saying to certain companies ‘you own this frequency, and no one else can be too close to that frequency.’ We aren’t engineers, but our understanding is that if we didn’t have a regime regulating frequencies it would be hard for anyone to be able to transmit much of anything and be intelligible. But we think it is hard to justify this equal time rule.
First off, we are well past the time when a license to broadcast amounted to handing out a monopoly or near-monopoly in small towns. For instance, this author’s TV can’t even get a broadcast signal without buying a separate antenna, and we don't have one. Most people will watch even the ‘big four’ broadcast networks on cable or satellite, and many will even ‘cut the cord’ and get their ‘TV’ exclusively through the Internet. In this context, NBC and Saturday Night Live is just one voice among many, instead of being one of only a handful of voices in a small community in the past.
Furthermore, the rule is impossible to enforce, anyway. Putting aside that all candidates would have to be given equal time—and according to Ballotpedia, there are twenty-four of them—how do you give equal opportunities, anyway? For instance, Trump was able to run an ad during a NASCAR event. That would seem quite separate from placing him on Saturday Night Live, and we thought it was pretty well established in the law that separate is never truly equal. Now, more than a few people have said that Trump got the better deal, but we can be sure that his opportunity wasn’t equal to Harris'.
And of course, an ad is a very different beast from being in a skit where your candidate can pretend to be a good sport in a humorous segment. The implicit message is typically ‘see? I am a regular person. I can handle being made fun of.’
And even if they had placed Trump on the same show, well … what do you think the chances are that SNL would have made Trump look as good as Kamala? We remember the time they had a whole episode with Trump as the guest star and it pretty much stank out loud—and our sense is it stank because the cast didn’t want to make it good. So, are we going to end up having court rulings that SNL let Trump on, but it didn’t make the skit for Trump as funny as Kamala’s? These are the kinds of problems you create when the government forces people to say things they don’t want to.
No, this author—and naturally, we are speaking only for ourselves—thinks we are getting to a point that the heavy regulation of broadcast television, if it ever made any sense, doesn’t make sense in the current environment.
But, at the same time, as long as ‘their rules’ are in place, they should be obeyed. I am not in favor of unilateral disarmament. NBC owes Hung Cao some airtime and they are running out of time to do it.
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