I was surprised last night, during the Patriots‘ Super Bowl win (yay!), to see an advertisement that struck me as anti-smoking (laudable and funny, both, yes).  I couldn’t figure out why it wasn’t an issue ad.  Yet the NYTimes reported that CBS claimed that it was not running the moveon.org ad because they don’t run issue ads (via Dave, yesterday).  I doubt that the anti-smoking ad was actually trying to sell us shards of glass popsicles.

Updated: The standard used by CBS Television Network (CTN) is not so simple as “issue ad” or “not an issue ad,” as the New York Times piece would have you believe.  Here’s relevant language, via Brian Carnell (who also comments here): “CTN does not sell time for the advocacy of viewpoints on controversial issues of public importance.”  (See the CBS news release for lots more of relevance.)  CBS presumably views the deficit issue as a “controversial issue[] of public importance,” and anti-smoking as non-controversial.  I suppose we could debate that point, though I think that CBS’s position is defensible.  That’s a helpful and more understandable standard, though it does not moot the issue altogether.  

Here’s what remains of interest to me (other than that it was a mistake not to read further than the New York Times article!):

* CBS is inevitably in the position of privileging one form of speech over another, which they can certainly do — they are a non-state actor.  But they are an astonishingly powerful non-state actor when they broadcast the Super Bowl.  The placement of the lines they draw is very important when a huge proportion of the TV viewership is glued to their station (cf. Marsh v. Alabama and, presumably, loads of the broadcasting speech-related cases).  Maybe the Boston Globe’s idea of a “Poli-Bowl” is a good solution.

* This back-and-forth led me to look back at a few of those broadcasting speech-related cases, which make for interesting reading.  Consider, for instance, the Supreme Court’s opinion (White, J.) in Red Lion Broadcasting v. the FCC (1969), which generally stands for a broad proposition about the “fairness doctrine,” upholding in the process FCC regulations about equal access to the broadcast media.  The opinion has a few wonderful lines:

“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” (at 390)  

Likewise: “The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others.”  (at 387)

On a more contemplative note, it’s interesting to note the way that the Supreme Court was thinking then about “technological advances.”  Mr. Justice White (or, more likely, his clerk) wrote: “The rapidity with which technological advances succeed one another to create more efficient use of spectrum space on the one hand, and to create new uses for that space by ever growing numbers of people on the other, makes it unwise to speculate on the future allocation of that space.”  (at 399) Given that moveon.org can broadcast streaming audio and video over the web now — much less, harness the energy and interest of the world’s bloggers — does that change our view?  What does all this mean for those who would create community online and then seek to cross over into the mainstream media?

This issue is subtle and complex, I’ll admit, much moreso than the way I’ve presented the issues in this blog entry.  There is all manner of relevant caselaw, up to the current Supreme Court session, not noted above.  Many serious Constitutional lawyers would probably say there’s no problem here, I’m pretty certain — CBS is not a state actor, for starters.  But, leaving the Constitutionality question aside, and thinking hard about the relevant policy questions, I’m still unconvinced that CBS is wholly in the right on this one.