Why Tim Tebow is the new Janet Jackson

By Eriq Gardner

This year's Super Bowl is likely to feature the most controversial non-football-related action since the infamous Janet Jackson wardrobe malfunction.

Tim Tebow, star quarterback for the Florida Gators and a devout Christian, has filmed a commercial spot for the organization Focus on the Family. The spot's theme is "Celebrate Family, Celebrate Life," a not-very-subtle nod to the group's advocacy of placing limits on abortions.

After the group announced it was willing to pay $3 million to air the commercial at the upcoming Super Bowl, a firestorm of protest erupted online, with thousands signing petitions asking CBS to reject the Tebow ad.

Reportedly, CBS has now approved the script and will run the spot, despite a long-standing policy of prohibiting advocacy advertisements, including those with "implicit" messages. Critics point to other advocacy advertisements rejected over the years by the network.

We haven't seen the advertisement yet, but we were curious to know if it might spark any regulatory action. We asked David Oxenford at Davis Wright Tremaine on his view.

In 1987, the FCC abolished the "Fairness Doctrine," requiring broadcasters to present an equitable balance of controversial issues. Oxenford says without a Fairness Doctrine, broadcasters don't have to worry about the FCC getting involved if the commercial only offers a broad look at a controversial issue. But if the commercial advocates some specific federal action, Oxenford says it could trigger some obligation for the station to note in a public file the advertisement and the cost to run it.

 

And what if CBS decides to now turn away others for their own public issue spots? Might the network be opening themselves to charges of being discriminatory? For instance, check out this Facebook petition that asks CBS to either reject the Tebow ad or run an advertisement in favor of inclusiveness by the United Church of Christ.

Broadcast lawyers say that networks have wide discretion on advertisements. We previously reviewed whether TV stations can refuse to run advertising and although case law seems to indicate that broadcasters are at least two touchdowns ahead of the rabble-rousers, no doubt there may be court filings and pressure on the FCC in the midst. Hey, now that we think about it: Might the Supreme Court be in the mood to tackle another case pitting free speech vs. advertising restrictions?