Static over stealth TV messages

America's television networks and studios, here to pitch their midseason shows to critics, have instead found themselves facing mounting static over the larger issue of government interference in programming.

In what legal scholars say is a serious First Amendment question that may be headed to court, a government strategy to incorporate antidrug messages into programs from "ER" to "Family Guy" is shifting the focus here from the content of new programs to the content of the Constitution.

Revelations that the White House Office of National Drug Control Policy offered networks the option of inserting ONDCP-approved messages into shows - as a method of meeting requirements for public-service announcements - has raised eyebrows across the industry and beyond. The issue, say legal analysts, is whether this program violates fundamental freedoms despite its noble goal - preventing the spread of substance abuse.

"Although the networks have been accused of doing something that might otherwise be thought of as a good thing - getting anti-drug messages to a large audience - this is a very serious constitutional issue because the government is absolutely prohibited from overtly or covertly influencing media in this country," says Pat Aufderheide, a telecommunications scholar at American University in Washington.

The arrangement between networks and the ONDCP was detailed last week in an online magazine, Salon, after a six-month investigation.

The story claims that several networks sent either scripts or finished program cassettes to government officials in hope that their depictions would achieve credit toward meeting requirements of a 1997 law.

That law, passed by Congress, required broadcasters to donate public-service time at half the price such ad time is sold to regular advertisers.

But a deal worked out between broadcasters and White House officials allowed networks to reduce the amount of ad time they were required to give to the ONDCP by airing shows with anti-drug messages.

The problem, critics say, is that government officials have been placed in the position of being able to dictate content.

Broadcasters, meanwhile, have been given the money incentive of meeting such dictates by selling the mandated ad time at full price to other advertisers. Such sums can add up to as much as $25 million per year.

"I have no problem with the government taking an antidrug position and spreading that message," says Bob Corn-Revere, a First Amendment lawyer for Hogan and Hartson, a Washington law firm. "The problem is, they are doing it in a secret way without telling us."

Mr. Corn-Revere and others say the arrangement could violate so-called "payola" laws passed in the 1950s, which require broadcasters to reveal any payments that were received concerning programming. The laws were passed to quell criticism that DJs were being paid by record companies to play certain artists. On-screen messages after quiz shows - such as "Wardrobe provided by ..." - are the result of such laws.

Networks have acknowledged sending some scripts and videotapes to government officials. But they vehemently deny that such scripts or videotapes were ever altered because of government recommendations.

"At no time did we call any producers and ask them to include antidrug messages in their programs," says Patricia Fili-Kushel, president of ABC television.

In the first year of the program, she says the ONDCP bought $45 million of ad time on ABC, which the network matched with the $40 million of PSA time. "We covered the rest," she explains, by submitting cassettes after the program had aired.

Other networks such as the WB concede that they have consulted the ONDCP on storylines before they aired.

The ONDCP itself details more than one occasion in which storylines and themes were vetted through its office before air. But it holds that its intent is not to dictate content but rather to be a resource.

"We want the creative community to use our expertise [about substance-abuse issues], and we're giving them financial incentive to do it," says Alan Levitt, director of the national Youth Anti-Drug Media Campaign, part of the ONDCP.

Many producers here - whose work would be affected by such a program of sending scripts or tapes to the White House - say they've never heard of it.

"It would be troubling if the government were putting pressure on networks to get out certain messages and making financial incentives to do so," says Gary Newman, president of 20th Century Fox television. "It would be troubling if they were not being disclosed by the networks."

Other studio heads echo the idea. "Never in my career have I ever been involved in a situation in an exchange for a financial incentive [nor] have we ever changed the content of our episodes," says Peter Roth, president of Warner Bros. television.

Because of such denials, the larger moral and legal questions remain unanswered: Did the government influence the content of national media? And did either or both sides cross the line?

"The problem is that in making their Faustian bargain of putting these messages into programming in return for getting largess from the government, networks have climbed onto a slippery slope," says Robert Pugsley, a First Amendment specialist who teaches at Southwestern University School of Law in Los Angeles.

"It opens the door to a degree of involvement in TV production that I don't think is compatible with what the First Amendment envisioned."

Adds George Gerbner, professor of telecommunications at Temple University in Philadelphia: "To have the White House review scripts and footage prior to airing, and by implication, approve, is a form of prior censorship that directly violates the First Amendment."

(c) Copyright 2000. The Christian Science Publishing Society