Monday was the 85th anniversary of the Mercury Players broadcast of the Orson Welles production of The War of the Worlds – a radio broadcast that seemingly scared many Americans into thinking that the country was under attack by Martians, that my home state of New Jersey had been overrun, and that the rest of the country would soon follow. There has been much media coverage of that broadcast in the last week. Ten years ago, on its 75th anniversary, we wrote an article that is worth revisiting now, with some edits to look at more recent activity that might bear on any repeat of The War of the Worlds controversy.
On the 75th anniversary of The War of the Worlds broadcast, PBS’s American Experience ran a great documentary about the production – talking about Orson Welles’ decision to delay an announcement that the program was a fictional production, not a real invasion, long after his network superiors ordered that announcement because the network phone lines were tied up with anxious callers. Also tied up were the phone lines of emergency responders, and the broadcast supposedly caused people to leave their homes to flee the path of the oncoming invaders. The PBS program talked about how the FCC opened an investigation into the program, and how Congress demanded that laws be passed to prevent such a broadcast from happening again. Essentially, through some well-publicized apologies by Welles and others involved in the program, and a promise by the network to take steps to prevent it from happening again, the FCC closed its investigation, and no law was passed by Congress. Even though the government did not act 75 years ago, it is interesting to look at how the FCC has changed since that time, and why such a broadcast would not fly under FCC rules today.
Most prominent among the FCC rules adopted since the famous broadcast is the FCC’s rule against “hoaxes.” As we’ve written before (usually just before April Fools’ Day), this rule (Section 73.1217) forbids broadcasters from airing false information about a crime or a catastrophe if the station knows the information is false, it is foreseeable that the broadcast will cause substantial harm, such as by tying up the resources of first responders or that the broadcast will otherwise cause substantial harm to people or damage to property, and where such harm is in fact caused. The rule also provides that any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.
Applying that rule to The War of the Worlds broadcast would mean that the radio network (and its affiliated stations) could potentially be looking at fines were such a broadcast to be made today. While a broadcaster could certainly argue (as was done at the time) that no rational person would believe that the Martians were really invading, the fact that the network was deluged with calls, and that the network warned its director to air a disclaimer (which was delayed for dramatic effect), might well cut against any such arguments.
When we wrote about the program on its 75th anniversary, we suggested that society seems much less willing to allow any programming that upsets audiences or potentially imperils safety in any way by using an on-the-spot news format for an entertainment program, without disclaimers that are prominent and repeated, and usually with many pre-show announcements that warned the viewer that the program that was upcoming was only a dramatization.
But we have also seen the FCC cracking down on false EAS alerts, and other programming that implies that there is an emergency when in fact no such emergency exists (see our articles here and here on big fines for false EAS alerts). The FCC has even gone so far as to require that broadcasters and other EAS participants notify the FCC of any false alerts, following the inadvertent EAS activation in 2018, warning of an incoming missile attack in Hawaii. In today’s world, where there are seemingly potential threats from a variety of sources, both natural and man-made, the appetite for any use of the airwaves to convey false emergency information seems to be slim. Broadcasters need to beware – and that wariness seems to guard against a repeat of The War of the Worlds public scare anytime soon.
Courtesy Broadcast Law Blog
