Media Ethics and Advocacy

The most basic rule of the ethical journalist is
independence from government.

An informed citizenry is a cornerstone of democracy, and an informed citizenry depends on unrestrained press. History shows that all too often the government acts not in the public interest but some entrenched commercial interests or to defend the power of officials or politicians. It is therefore a primary function of a free press is to serve as a watchdog of government, responsible to the public good, and not to political or business interests.Classic tenets of journalism call for objectivity and neutrality. These are antiquated principles no longer universally observed…. We must absolutely not feel bound by them. If we are ever to create meaningful change, advocacy journalism will be the single most crucial element to enable the necessary organizing. It is therefore very important that we learn how to be successful advocacy journalists. For many, this will require a different way of identifying and pursuing goals.
“Advocacy Journalism, The Least You Can Do, and The No Confidence Movement.” Dave Berman, 29 Jun 2004. Independent Media Center. (*)

Citizen Journalism also known as “participatory journalism,” is the act of citizens “playing an active role in the process of collecting, reporting, analyzing and disseminating news and information,” Source: We Media: How Audiences are Shaping the Future of News and Information, by Shayne Bowman and Chris Willis.Investigative journalism and muckraking might be considered forms of advocacy journalism. Investigative reports often focus on illegal or unethical activity, or aim to advance a generally accepted public interest, such as government accountability, alleviation of human suffering, etc. Investigative journalism is largely an information-gathering exercise, looking for facts that are not easy to obtain by simple requests and searches, or are actively being concealed, suppressed or distorted.

Advocacy journalism aims to persuade through fact-telling. It rejects the notion of objectivity, instead exposing bias to the reader and expressing explicit opinions on the subject matter. The general goal is to present facts in such a compelling, well-researched manner that even a skeptical reader or one who does not share the writer’s opinions, will be swayed to some degree, or at least better informed about the issue at hand.A muckraker is a journalist, author or filmmaker who investigates and exposes societal issues such as political corruption, corporate crime, child labor, conditions in slums and prisons, unsanitary conditions in food processing plants, fraudulent claims by manufacturers of patent medicines and similar topics. The term muckraker is most usually associated with a group of American investigative reporters, novelists and critics from the late 1800s to early 1900s, but also applies to contemporary persons who follow in the tradition of those from that period.

The Fairness Doctrine was a policy enforced by the Federal Communications Commission that required broadcast licensees to present controversial issues of public importance, and to present such issues in a fair and balanced manner. The Doctrine was until 1987, when the FCC repealed it in the Syracuse Peace Conference decision in 1987. The Republican-controlled commission claimed the doctrine had grown to inhibit rather than enhance debate and suggested that, due to the many media voices in the marketplace at the time, the doctrine was probably unconstitutional.The two corollary rules, the personal attack rule and the political editorial rule, remained in practice even after the repeal of the fairness doctrine. The personal attack rule is pertinent whenever a person or small group is subject to a character attack during a broadcast. Stations must notify such persons or groups within a week of the attack, send them transcripts of what was said, and offer the opportunity to respond on the air. The political editorial rule applies when a station broadcasts editorials endorsing or opposing candidates for public office, and stipulates that the candidates not endorsed be notified and allowed a reasonable opportunity to respond.Copyright Guidelines

The FCC and Broadcasting

1. The Communications Act. The Federal Communications Commission (“FCC” or “Commission”) was created by Congress in 1934 when it adopted the law known as the Communications Act of 1934 (47 U.S.C. Sections 151 – 714), for the purpose, in part, of “regulating interstate and foreign commerce incommunication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communications service….” (The word “radio” in its all-inclusive sense also applies to television.) The Communications Act authorizes the FCC to “make such regulations not inconsistent with law as it may deem necessary to prevent interference between stations and to carry out the provisions of [the] Act.”
2.
The FCC and the Mass Media Bureau. The FCC is authorized to have a total of five commissioners, who are appointed by the President, subject to confirmation by the Senate. Under the commissioners are various operating bureaus, one of which is the Mass Media Bureau. The Mass Media Bureau has day-to-day responsibility for developing, recommending and administering the rules governing radio and television stations. The FCC’s broadcast rules appear in Title 47 of the Code of Federal Regulations (“CFR”), Part 73. The FCC’s rules of practice and procedure appear in Part 1 of Title 47. 3. What the FCC Does in Regulating Broadcast Radio and Television. The FCC allocates broadcast channels and frequencies according to good engineering standards, considers applications to build or sell stations or to renew their licenses and enforces the provisions of law that are meant to ensure that the stations now broadcasting in the United States are operated in the public interest. The FCC is prohibited by the Communications Act from censoring broadcast matter and, therefore, its role in overseeing programming is very limited. There are provisions in the Communications Act that authorize the FCC to fine a broadcast licensee or revoke the license of a station that has, among other things, aired obscene or indecent language, or some types of lottery information, or that has been used to obtain money under false pretenses. Under the public interest standard in the Communications Act, the FCC expects its broadcast licensees to be aware of the important problems or issues in the communities their stations serve and to foster public understanding by presenting some programs and/or announcements about local issues, but broadcasters–not the FCC or other governmental agencies–are responsible for selecting all the material aired by their stations. 4.

Some Activities That Are Not Regulated by the FCC. The Commission cannot regulate closed-circuit radio or television, and so does not control what is carried over closed- circuit systems in, for example, department stores. It has no authority over sports teams or leagues, or over the promoters of prizefights, rodeos, bullfights and other exhibitions. Arrangements for broadcasting sports events and other exhibitions are made in private contractual agreements between owners of the rights, such as sports teams or leagues, and the broadcast stations and/or networks involved. The Commission has no jurisdiction over the production, distribution and rating of motion pictures; the publishing of newspapers, books and other forms of printed matter; or the manufacture and distribution of audio and video recordings. It does not administer copyright laws. Other groups and activities outside the Commission’s jurisdiction are newsgathering organizations, including press associations, that provide broadcasters with news and comment; music-licensing organizations such as ASCAP, BMI, and SESAC; record companies and companies that measure the size and other characteristics of radio and television audiences. The FCC does not license networks except to the extent that they are the licensees of individual broadcast stations. The FCC does not regulate the Internet.Generally, the FCC does not intervene in private disputes involving broadcast licensees, but leaves such matters to be settled by the parties or by local courts or agencies. For example, non-delivery of merchandise ordered through stations and licensee failures to meet payrolls or satisfy other debt claims are not matters in which the Commission intervenes.

BROADCAST PROGRAMMING: BASIC LAW AND POLICY11. The FCC and Freedom of Speech. Except as specifically noted herein, the Commission is prohibited by law (Section 326 of the Communications Act) from censoring broadcast material and from making any regulation that would interfere with freedom of expression in broadcasting. It is the judgment of the Commission, as it was the judgment of the framers of the Constitution and as it has been the judgment of legislators and judges over the years, that the public interest is served best not by government surveillance but rather by the free expression of views in a “market place of ideas.” Individual radio and television station licensees are responsible for selecting all broadcast matter and for determining how their stations can best serve their communities. Licensees are responsible for choosing the entertainment programming and the programs concerning local issues, news, public affairs, religion, sports events and other subjects to be aired by the station. They also decide how their programs, including call-in shows, will be conducted and whether or not to edit or reschedule material for broadcasting. The Commission does not substitute its judgment for that of the broadcaster in this process, and it does not act as an advisor to stations on artistic standards, grammar or quality of content.12.

Access to Broadcast Facilities. Broadcast stations are not required to accept all matter that is offered or suggested to them for broadcast. Except as required by provisions of the Communications Act and the Commission’s rules concerning personal attacks and the use of stations by candidates for public office, licensees are under no obligation to have any particular person participate in a broadcast or to present that person’s remarks. Further, no federal law or rule requires stations to broadcast “public service announcements” for any purpose or on behalf of any public or private organization. 13. Retention of Material Broadcast; Editorializing; Labeling of Program Matter. There are two categories of material that licensees are required to retain for limited periods: “personal attacks” and “political editorials.” Personal attacks occur when, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group. The FCC’s rules require that after a personal attack, the licensee must, no later than one week after the attack, transmit to the person or group attacked: (a) notification of the date, time and identification of the broadcast; (b) a tape, script or accurate summary of the attack; and (c) an offer of a reasonable opportunity to respond over the licensee’s station. Political editorials involve the endorsement or opposition of a legally qualified candidate or candidates during an editorial. Within 24 hours after the editorial, the licensee must transmit to the other qualified candidate(s) for the same office, or the candidate(s) opposed: (a) notification of the date and time of the editorial; (b) a script or tape of the editorial and (c) an offer of a reasonable opportunity for the candidate or a spokesperson for the candidate to respond over the licensee’s station. The word “editorial” refers to a broadcast statement of the opinion of a licensee. “Comment” or “commentary” refers to the broadcast opinions of persons other than the licensee. Whether a statement of opinion is an editorial or a commentary will usually be made clear at the outset of the statement.14. Station Identification. Station identification announcements must be made at the beginning and end of each time of operation, and hourly, as close to the hour as feasible, at a natural break in program offerings. Television broadcast stations may make these announcements visually or aurally. Official station identification includes the station’s call sign followed by the community or communities specified in its license as the station’s location. The name of the licensee or the station’s frequency or channel number, or both, may be inserted between the call letters and the station location, but no other insertion is permissible.15. Broadcast of Telephone Conversations. Before recording a telephone conversation for broadcast, or broadcasting a telephone conversation simultaneously with its occurrence, a station must inform any party to the call of its intention to broadcast the conversation. This rule does not apply to conversations whose broadcast can reasonably be presumed, as for example telephone calls to programs in which the station customarily broadcasts telephone conversations.

Broadcast Programming:
Law and Policy on Specific Kinds of Programming

16. Broadcast Journalism. Under the no-censorship provision in Section 326 of the Communications Act, the Commission cannot direct broadcasters in their selection of material for news programs, or prohibit the broadcasting of an opinion on any subject. The Commission also does not review the qualifications of anyone to gather, edit, announce or comment on the news; such decisions are a responsibility of the station licensee. The Commission will not act on complaints that news programming has been falsified, distorted, faked or staged unless it receives extrinsic evidence (evidence apart from program content) of such deliberate conduct by a licensee and/or its management personnel. The Commission recognizes that some abuses may occur, but it believes that without extrinsic evidence of deliberate intent to falsify or distort, any interference by it, the government licensing agency, in the editorial or news judgment of broadcasters would be a greater danger. The Commission has emphasized “the right of broadcasters to be as outspoken as they wish, and that allowance must be made for honest mistakes on their part.” 17. Broadcasts by Candidates for Public Office; Political Editorials. When one qualified candidate for public office has been permitted to use a station, Section 315 of the Communications Act provides that the licensee of the station “shall afford equal opportunities to all other such candidates for that office” and that the “licensee shall have no power of censorship over the material broadcast” by the candidate. Any appearance by a legally qualified candidate on a bona fide newscast, interview or documentary (if the appearance of the candidate is incidental to the presentation of the subject covered by the documentary), or on-the-spot coverage of a bona fide news event (including political conventions and related incidental activities) is not considered a use.If a licensee broadcasts an editorial (a broadcast statement of opinion of the licensee) in which it supports or opposes a candidate for public office, the licensee must, within 24 hours after the broadcast, transmit to the other qualified candidate(s) for the same office, or the candidate opposed in the editorial: (1) notification of the date and the time of the editorial, (2) a script or tape of the editorial and (3) an offer of a reasonable opportunity for the candidate or a spokesperson for the candidate to respond over the licensee’s facilities.

The preceding two paragraphs are only brief summaries of provisions of law and regulatory policy on political broadcasts.18. Children’s Television Programming. Every commercial and noncommercial educational television broadcast station licensee is obligated to serve, over the term of its license, the educational and informational needs of children through both the licensee’s overall programming and programming specifically designed to serve such needs. Educational and informational television programming, in this context, is defined as programming that furthers the educational and informational needs of children 16 years of age and under in any respect, including the child’s intellectual/cognitive or social/emotional needs.

Such programming is considered “specifically designed to serve educational and information needs of children” if it has this service as a significant purpose, is aired between the hours of 7:00 a.m. and 10:00 p.m., is a regularly scheduled weekly program, and is at least 30 minutes in length.Commercial television broadcast licensees must identify programs specifically designed to educate and inform children at the beginning of the program, in a form left to their discretion, and must provide information identifying such programs to publishers of program guides. Additionally, in television programs aimed at children 12 and under, advertising may not exceed 10.5 minutes an hour on weekends and 12 minutes an hour on weekdays.

19. Criticism, Ridicule, Humor Concerning Persons, Groups, and Institutions. The First Amendment’s guarantee of freedom of speech protects programming that “stereotypes” or otherwise offends people with regard to their religion, race, national background, gender or other characteristics. It also protects broadcasts that criticize or ridicule established customs and institutions, including the government and its officials. As the Commission has observed, “[i]f there is to be free speech, it must be free for speech that we abhor and hate as well as for speech that we find tolerable or congenial.” Consequently, the Commission cannot prohibit such programming. 20. “Clear and Present Danger.” Supreme Court decisions indicate that government may curtail speech when it is directed toward inciting or producing dangerous activity and is likely to produce such action. Other than under these circumstances, mere advocacy of the use of force or of law violation is protected by the Constitution. Even where the “clear and present danger” test is met, the Commission believes that any review leading to a curtailment of speech should be performed by the appropriate criminal law enforcement authorities. Accordingly, it is up to federal, state or local criminal law enforcement agencies to analyze the content and context of the speech and to determine whether there is a clear and present danger that will result in imminent lawless action. 21. Obscenity and Indecency. It is a violation of federal law to broadcast obscene, indecent or profane language. Obscene speech is not protected by the First Amendment and cannot be broadcast at any time. To be obscene, material must meet a three prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. The Commission has defined broadcast indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Because indecent material is protected by the First Amendment, it cannot be banned entirely. It may, however, be restricted to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience. Thus, broadcasts that fall within the definition of indecency and are aired between 6:00 a.m. and 10:00 p.m. are subject to indecency enforcement action.Regarding profanity, key court decisions have defined it as “words importing an imprecation of divine vengeance or implying divine condemnation, so used as to constitute a public nuisance.” Thus, the courts have severely limited the FCC’s ability to take action in this area.

22. Licensee-conducted Contests. Licensees that broadcast or advertise information concerning a contest that they conduct must fully and accurately disclose the material terms of the contest and must conduct the contest substantially as announced or advertised. Contest descriptions may not be false, misleading or deceptive with respect to any material term. Material terms include those factors that define the operation of the contest and affect participation therein. 23. Broadcast Hoaxes. Broadcasting false information concerning a crime or a catastrophe constitutes a violation of the FCC’s rules if (1) the licensee knew this information was false, (2) it was foreseeable that broadcast of the information would cause substantial public harm and (3) broadcast of the information did in fact directly cause substantial public harm. In this context, a “crime” is an act or omission that makes the offender subject to criminal punishment by law, and a “catastrophe” is a disaster or imminent disaster involving violent or sudden events affecting the public. “Public harm” must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties. 24.

Lotteries. Federal law (18 U.S.C. Section 1304) prohibits the broadcast of any advertisement of or information concerning a lottery. A lottery has been defined as any game, contest, or promotion that combines prize, chance and consideration. There are a number of exceptions to this provision, among them (1) lotteries conducted by a State acting under the authority of State law, where the advertisement orinformation is broadcast by a radio or television station licensed to a location in that State or in any other State that conducts such a lottery; (2) gaming conducted by an Indian Tribe pursuant to the Indian Gaming Regulatory Act; (3) lotteries authorized or not otherwise prohibited by the State in which they are conducted, that are conducted by a not-for-profit organization or a governmental organization and (4) lotteries conducted as a promotional activity by commercial organizations that are clearly occasional and ancillary to the primary business of that organization, so long as the lotteries are authorized or not otherwise prohibited by the State in which they conducted.25. Solicitation of Funds. No federal law prohibits broadcast requests for funds for lawful purposes (including appeals by broadcast licensees for contributions to meet station operating expenses) if the money or other things of value contributed are used for the announced purposes. Whether or not a station permits fund solicitations is for its licensee to decide. Fraud by wire, radio or television is prohibited by the Criminal Code (18 U.S.C. Section 1343). Violation of this provision may lead to Commission sanctions.

Broadcasting & Advertising26. Business Practices, Advertising Rates, and Profits. Except with respect to political advertisements, the Commission does not regulate licensee advertising rates and makes no attempt to fix broadcasters’ profit levels. Rates charged for broadcast time are matters for negotiation between sponsors and stations. Further, except for certain classes of political advertisements, licensees are free to accept or reject advertising matter to be aired on their station. 27. Sponsorship Identification. Section 317 of the Communications Act requires that any material broadcast in exchange for money, service, or other valuable consideration paid to a broadcast station, directly or indirectly, be accompanied by a sponsorship identification or disclosure. This announcement must clearly advise the audience that the time was purchased and by whom. In the case of advertisements for commercial products or services, an announcement stating the sponsor’s corporate or trade name, or the name of the sponsor’s product where it is clear that the mention of the product constitutes a sponsorship identification, is sufficient. 28.

Underwriting announcements. Noncommercial educational stations may acknowledge contributions over the air, but they may not promote the goods and services of for-profit donors or underwriters. “Enhanced underwriting” acknowledgements of for-profit donors may include (1) logograms and slogans that identify but do not promote, (2) location information, (3) value neutral descriptions of a product line or service and (4) brand and trade names, and product service listings. However, such acknowledgements may not interrupt a noncommercial station’s regular programming. 29. Amount of Advertising. Except with respect to children’s programming, no federal law or regulation limits the amount of commercial matter that may be broadcast at any given time. In television programs aimed at children 12 and under, advertising may not exceed 10.5 minutes an hour on weekends and 12 minutes an hour on weekdays. 30.

Loud Commercials. In surveys and technical studies of broadcast advertising, the Commission has found that loudness is a judgment that varies with each listener and is influenced by many factors, among them the content and style of an announcement. It has also found no evidence that stations deliberately raise audio and modulation levels to emphasize commercial messages. Broadcast licensees have primary responsibility for the adoption of equipment and procedures to avoid objectionably loud commercials. Complaints about such messages should be addressed to the station(s) involved and should identify each message by the sponsor’s name or the name of the product advertised with the date and time of the broadcast.31. False or Misleading Advertising. The Federal Trade Commission has primary responsibility for determining whether an advertisement is false or deceptive and for taking action against the sponsor. The FCC and the Federal Trade Commission have an agreement for exchanging information on matters of common interest. Comments and inquiries concerning food or drug products believed to be dangerous or unsafe should be addressed to the Food and Drug Administration. 32. Offensive Advertising. Unless a broadcast advertisement is found to be in violation of a specific law or regulation, no governmental action can be taken against it. Complaints that advertising is offensive because of the kind of item advertised, the scheduling of the announcement or the way the message is presented, should in most instances be addressed directly to the stations and networks involved, so that they may become better informed about audience opinion on such material. 33.

Tobacco and Alcohol. Federal law prohibits advertising for cigarettes, little cigars (15 U.S.C. Sections 1331-1340), smokeless tobacco or chewing tobacco (15 U.S.C. Sections 4401-4408) on any medium of electronic communication under FCC jurisdiction. The law does not ban the advertising of smoking accessories, cigars, pipes, pipe tobacco, or cigarette-making machines. Within the Civil Division of the United States Department of Justice, the Office of Consumer Litigation is responsible for enforcing the Federal Cigarette Labeling and Advertising Act and the Comprehensive Smokeless Tobacco Health Education Act of 1986. The Congress has enacted no law that prohibits broadcast advertising for any kind of alcoholic beverage; nor does the Commission have a rule or policy that directs its radio and television station licensees to accept or reject advertisements for alcoholic beverages.34. Subliminal Programming. The FCC sometimes receives complaints regarding the alleged use of subliminal techniques in radio and television programming. Subliminal programming is designed to be perceived on a subconscious level only. The Commission has held that the use of subliminal perception is inconsistent with the obligations of a licensee and contrary to the public interest because, whether effective or not, such broadcasts are intended to be deceptive. Update 3/1998

Controversial Advertising

Advertising is “controversial” only if a station’s management believes it is, but for no other tangible reason. It’s not illegal to run political or social issue advertising, the only exception being the limits of access to media for political advertising during certain times near elections under the McCain-Feingold Act, and that is currently being tested in court), and there is no law concerning an “equal time” provision for stations that run these or any other “controversial” spots. There are basically two types of “controversial” advertising: social and political. Either is acceptable and certainly legal.

For political issues, FCC rules state that political advertising, whether for candidates or ballot issues, must be identified as such with the name of the sponsoring organization in their tags for a minimum of four seconds in a specific font size, and certain forms must be completed for the station’s files to identify the entity paying for the spots.

For social issues, it’s really up to the stations whether to accept them or not. There is no paper work involved, no disclaimers, and no special tags unless a station requests it, which they usually do not.

To further clarify this, non-profit organizations are the primary users of so-called “controversial” ads. Generally, they are classified by the IRS as being one of two types of organizations: a political action organization classified by the IRS code as falling under section 501(c)4, or an educational organization which falls under the IRS classification of 501(c)3. Educational organizations cannot run ads promoting politicians or ballot issues. Political action organizations can run either kind as long as they comply with the simple FCC rules I described above. There are, of course, other kinds of organizations than these two, but these are the most commonly found.

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