Last week, Federal Communications Commission (FCC) Chairman Brendan Carr made waves by releasing new guidance regarding the so-called Equal Time Rule. This move is the latest volley in Chairman Carr’s ongoing campaign to address political bias in legacy media by reinvigorating long-settled content-based broadcasting regulations—and has ignited a firestorm of complaints that the administration seeks to stifle speech. This post unpacks the Equal Time Rule and explores its ongoing validity in a diverse media environment.

The Equal Time Rule provides that a broadcaster that permits a political candidate to use its broadcasting station must offer equal opportunities to all other candidates for that office, without censorship. Through this rule, Congress sought to prevent a candidate from using the public airwaves to secure an electoral advantage. But it has unintended consequences as well. In 1959, a Chicago station covered Mayor Richard Daley welcoming a foreign diplomat to town. This triggered a complaint from perennial fringe candidate Lars Daly, who campaigned around Chicago wearing an Uncle Sam costume. Surprisingly, the Commission granted Daly’s request for Equal Time, which prompted Congress to create an exception for “bona fide news” broadcasts. As candidate interviews became a broader part of the entertainment landscape, the FCC has extended the bona fide news exception beyond traditional news programming to include the daytime talk show Donahue, Entertainment Tonight, and (incredibly) The Howard Stern Show.

Carr’s recent guidance reins in this trend. It explains that exemptions are fact-specific, including whether the program is regularly scheduled, whether an independent producer controls the content, and whether content decisions are made on the basis of newsworthiness or a partisan intent to promote a candidate. Thus, while a 2006 decision exempted the interview portion of The Tonight Show with Jay Leno, this does not necessarily mean all talk shows are similarly exempt. The guidance was widely seen as a shot at late night’s Jimmy Kimmel Live! and the daytime show The View, both of which President Trump has repeatedly criticized (and the latter of which hosted Trump’s opponent, Kamala Harris, during the 2024 presidential election). Kimmel in particular has criticized the guidance as an effort to stifle political speech.

Kimmel’s pushback raises a key question: is the Equal Time Rule constitutional? In general, the Supreme Court has found that these types of right-to-reply statutes violate the First Amendment right of editorial control. That was the holding of Miami Herald v. Tornillo, which struck down a Florida law requiring newspapers that criticize a candidate to give the candidate equal space to respond. The Court explained that this interfered with the newspaper’s right to decide what to print and what not to print in its pages. But in the 1968 Red Lion Broadcasting v. FCC decision, the Court made an exception for broadcasters. Red Lion upheld the Fairness Doctrine, an FCC rule creating a right-of-reply for candidates attacked on TV or radio programs. The Court held that the spectrum was a scarce resource over which only a privileged few government licenses could speak. Therefore, the First Amendment did not prohibit the government from making sure the public was fully informed by hearing both sides of key issues discussed on that medium.

The Red Lion Court noted that it could revisit this decision if, in practice, the doctrine had a chilling effect on broadcaster speech by discouraging them from covering controversial issues all for fear of triggering the rule. In the 1980s, the Commission found this was the case, and repealed the Fairness Doctrine as both unconstitutional and bad policy. A lower court upheld this decision on policy grounds without addressing the constitutional issue.

Many argue that the Equal Time Rule has a similarly unconstitutional chilling effect on speech. During the bonkers 2003 California gubernatorial recall election, Late Late Show host Craig Kilborn penned a New York Times op-ed titled My Couch is Too Small for 135 Candidates. He explained that ten minutes before showtime, network lawyers spiked a comedy segment spoofing two candidates, actor Arnold Schwarzenegger and porn star Mary Carey, for fear that the Equal Time Rule would require the studio to showcase the other 133 candidates on the ballot as well. This is Kimmel’s critique as well, describing the guidance as Carr’s “sneaky little way of keeping viewpoints that aren’t his off the air.”

Although Red Lion technically remains good law, it’s far from clear that the Court would uphold it today. America no longer gets its news from a handful of broadcast channels. We’re informed via a diverse media landscape of which broadcasters are a small (and shrinking) part. In a media ecosystem no longer defined by scarcity, Carr’s revival of the Equal Time Rule may say less about ensuring democratic fairness than about how long a broadcast-era solution can survive in a post-broadcast world.