Communications and Media

Super Bowl Ads in Focus Long Before the Big Game

Before or after the Super Bowl game, you may hear someone say, "I only watch for the commercials, or "The commercials were better than the game." The TV ads that run during the Super Bowl are almost as famous and anxiously awaited for as the big game itself.

Advertisers pay between $2.5 and $2.8 million for a 30-second commercial during the game. These companies know that millions of people across the globe are glued to their TVs, so they go all-out to make memorable commercials; the ones talked about for several days around the water cooler at work.

This year, weeks before the kick-off in Super Bowl 44 (XLIV), some would-be ads are stirring up controversy and debate that rivals the predictions about which team will actually win the game.

Pro-Life Ad

The commercial starting the controversy all stars college football sensation Tim Tebow and his mother, Pam. The ad hasn't been released yet, not even on the internet. However, it's expected to be a pro-life message in which Mrs. Tebow explains why she's grateful she didn't have an abortion while pregnant with Tim, despite being advised to do so by doctors in the Philippines. Mr. and Mrs. Tebow served as Christian missionaries in the Philippines when she became ill while she was pregnant.

The ad is paid for by Focus on the Family, a global non-profit Christian organization focused on traditional marriage and parenting values.

It's coming under attack by pro-choice groups, such as the national the National Organization for Women (NOW). Not only because of its pro-life message, but because CBS, the TV network carrying the Super Bowl, reversed its prior ban against broadcasting controversial "advocacy ads" during the Super Bowl.

Just days before kick-off, the debate rages over whether the ad is "appropriate," but all reports indicate that CBS will run it.

Homosexual Lifestyles

A proposed ad by ManCrunch.com, an all-male dating web site, isn't so lucky. In its ad, two men start kissing while watching the Super Bowl, while a third friend looks on in gazed wonder.

CBS refuses to run the commercial. The network claims that the ad isn't within the network's standards for Super Bowl Sunday. ManCrunch counters that in light of the network's decision to allow the pro-life advocacy commercial, the refusal to air its ad is discrimination. Not to mention networks aired the sexy GoDaddy.com ads aired during past Super Bowls.

Legal Aspects

The Federal Communications Commission (FCC) has "decency rules" prohibiting broadcasts of "obscene" material, and limit "profane" and "indecent" material. As you may recall, CBS spent years in court after the FCC fined it for the "wardrobe malfunction" during the 2004 Super Bowl half-time show.

Neither the Focus on the Family or ManCrunch commercials seem to violate FCC rules. In addition, under the FCC rules, it's up to the TV networks to choose what they broadcast.

What about free speech and discrimination? As a general rule, outside certain areas such as employment and public places like hotels and restaurants, free speech and ant-discrimination laws only apply to government bodies, not private entities, like you or me, or a television network.

For example, it's not a crime to belong to the KKK. Legal problems set in, however, when that group's discriminatory actions harm someone or his property. Likewise, Scott Roeder wasn't on trial because he was a pro-life activist. Rather, he was convicted of murdering a doctor who performed abortions. On the other hand, because of their public nature, it's often unlawful for private shopping malls to bar political and other speeches and rallies.

Regardless, in ManCrunch's case, even if it can show that CBS is somehow a "government body" because it has a government-issued broadcast license, or its broadcasts over public airways makes it a "public place" of accommodation, it would still have to show it was damaged by CBS' refusal. That may be hard to do, especially because its commercial is playing 24 hours a day all over the internet for free - a better deal than $2.8 million for 30 seconds.

There are no claims of discrimination or interference with free speech associated with Focus on the Family's ad. There is, however, a potential legal problem. Nationally known attorney and Lawyers.com spokeswoman Gloria Allred is threatening to file complaints with the FCC and Federal Trade Commission (FTC) if CBS runs the ad and doesn't tell viewers that all abortions have been illegal in the Philippines for decades. Including the time when the Tebows were there.

Such a complaint, if successful, could end with CBS, and possibly Focus on the Family, having to pay a fine.

You're in Control

Legal issues aside, in the end, you, not CBS or other networks, control what's on your TV. If CBS airs a commercial during the Super Bowl you find objectionable or contrary to your beliefs, simply don't watch it. Turn the TV off for 30 seconds or so.

Take it a couple of steps further if you'd like. Write a letter to the network and voice your objections, and boycott or refuse to watch CBS in the future. Television networks only make money when people watch their programming. Hitting the network in the wallet is a good way of letting it know how you feel.

But be tolerant, too. Try to understand that not everyone may disagree with the message of a particular commercial, and may even appreciate the message. Just as you have a right not view an ad, others have the right to see it.

Doing these things will let everyone enjoy the big game, and the ultimate side show - the commercials!

Questions For Your Attorney

  • If CBS shows the pro-life commercial, as a pro-choicer, I can file a complaint with the FCC on the grounds that I find the commercial objectionable, right? And the FCC has to investigate, correct?
  • Can a television or radio station be sued for discrimination in its advertisements or programming if it gets grant money from the federal government?
  • The TV networks all cover the President's speeches. Doesn't that make them "governmental bodies" for free speech and discrimination purposes?

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Jackson Lewis P.C.


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703-483-8300 ×


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