an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
On October 10, Secretary Hillary Clinton appeared on hundreds of broadcast stations around the country for just over three minutes in a sketch on Saturday Night Live, playing bartender "Val" opposite cast member Kate McKinnon's own impersonation of Secretary Clinton.
Attentive and well-informed rival candidates for the Democratic Presidential nomination should understand the legal significance of Secretary Clinton's appearance. Consequently, it is no surprise that, at least according to one news source, Harvard law professor Larry Lessig quickly claimed his right to an equal opportunity to appear on the relevant television stations.
Under FCC regulations, legally qualified candidates for federal elective office are entitled to "equal opportunities" to use a broadcast station's facilities or to appear on the station's broadcasts, whenever the station has given such an opportunity to a candidate in the same race.* (In the context of a primary election, only candidates in the same party's primary are considered to be in the same race.) These opportunities need only be offered on the same terms as they were to the original candidate--for example, if the first candidate purchased advertising time, the station need not offer free air time to rival candidates; the station need only offer similar air time for purchase at equivalent rates.
In the case of Secretary Clinton's Saturday Night Live appearance, the question of what broadcast stations must offer Lessig (and any other rival candidate who has made a claim within seven days of Secretary Clinton's appearance) is an interesting one. Stations need not offer candidates appearances on the same program or at precisely the same time on precisely the same night of the week. However, stations are required to provide candidates the same amount of airtime, during a program that is likely to attain similar ratings and demographics, in broadly the same time period. Where a show as unique as Saturday Night Live is concerned, it is difficult to imagine what equivalent programming NBC stations and affiliates will be able to offer Secretary Clinton's rivals.
One possibility is that stations may able to offer other Democratic candidates multiple spots that, in aggregate, reach similar numbers of audience members. There has been some past FCC guidance indicating that this might be an acceptable solution.
Another possibility is that Lessig, and any other Democrats claiming equal opportunities, may simply not press the issue too far, finding it more politically expedient to receive some moderate amount of airtime with little fuss, rather than engaging in a tussle with media organizations in an attempt to secure highly rated late night television appearances of their own.
However reasonable the Democrats might prove to be, though, real fireworks could emerge in coming weeks. Donald Trump is currently scheduled to appear on Saturday Night Live on November 7-- not simply in a three-minute sketch similar to Secretary Clinton's, but as the host of the episode, a role which typically includes an opening monologue, as well as various appearances throughout the show. Particularly with the remarkably large field for the Republican nomination for President, it is not hard to imagine resultant equal opportunities claims turning into real headaches for NBC stations and affiliates around the country.
* Certain exceptions exist to the requirement that stations provide equal opportunities to candidates. Most notably, when a candidate appears on a news program (other than as a newscaster), a news interview show, or in on-the-spot coverage of a news event, rival candidates' equal opportunities rights are not triggered.