THE BLOG
04/07/2010 05:12 am ET | Updated May 25, 2011

The Super Bowl Slippery Slope: Advertising and Free Speech

I have to start off with an admission. I haven't watched the Super Bowl in over twenty years. Bone crushing violence does nothing for me. I prefer the cerebral match up of a pitcher and a batter. That being said, I realize that this sporting event is a major occurrence for families all over the country. (The closest I come to that kind of extravaganza is the Academy Awards.) I appreciate the group experience that transpires as friends and relatives gather around to enjoy communal entertainment. I have heard that the match up between the Colts and the Saints could bring record viewership. Which brings me to the question, what was CBS thinking when it decided to feature an ad by Focus on the Family?

This issue has been examined and parsed since CBS announced that one of its 30-second spots had been purchased by an organization that espouses "traditional Christian values." Their morals are laid out on their website and include: "God's Design for Marriage; Counseling for Unwanted Same-Sex Attractions; The Sanctity of Human Life."

Why would CBS choose to feature a message underwritten by a group with a definitive religious agenda, in a country that is predicated on the separation of church and state? Although the ad has been under wraps, it has been widely circulated that it features the story of Tim Tebow's mother. She decided not to terminate her pregnancy, which led to Tim's birth. Tebow is a recipient of the Heisman Trophy, and as the quarterback for the Florida Gators, has set numerous records with his achievements on the field.

William Saletan, in a Slate post, took a look at the full medical complications that faced Pam Tebow. He reported that

"according to Pam's account in the Gainesville Sun, she contracted amoebic dysentery and went in [to] a coma shortly before the pregnancy. To facilitate her recovery, she was given heavy-duty drugs. Afterward, doctors told her the fetus was damaged. They diagnosed her with placental abruption, a premature separation of the placenta from the uterine wall. They predicted a stillbirth and recommended abortion."

The subtext is that she rejected that option.

I have been trying to determine what this narrative is doing in the middle of the Super Bowl presentation. Abortion is a hot button topic. It is common knowledge that CBS has repeatedly refused advertisements with an advocacy agenda in the past. When PETA and MoveOn.org tried to get their messages in front of the Super Bowl crowd, it was nixed by CBS on the grounds that it did not accept ads with social and political content. What changed?

The CBS response put forth by spokesperson Dana McClintock was, "We have for some time moderated our approach to advocacy submissions after it became apparent that our stance did not reflect public sentiment or industry norms." Whose public sentiment? A wide range of groups has called for CBS to pull the ad.

The New York Times posited in an editorial that a request for the ad to be pulled was censorship. It suggested that those concerned with the "accuracy and taste" of the Tebow ad could "watch and judge for themselves." The flippant closing line was, "Or they can get up from the couch and get a sandwich."

The conundrum is what is censorship and what is a value judgment? Would CBS run an advertisement featuring a football player who espoused religious beliefs grounded in the tenants of the Aryan Nations Church of Jesus Christ-Christian? Would it run a spot sponsored by the National Rifle Association? Now that CBS plans to air advocacy ads, if only certain groups have the big bucks, what will the determining factors be?

It's hard for me to buy the "freedom of speech" premise when the Focus on the Family spot comes with a price tag purported to be between $2.4 million and $2.8 million. It is still unclear who is paying for the commercial. Jim Daly, Focus on the Family president and CEO, has stated that no money is coming out of the coffers of the "general funds of the ministry." The tab is being picked up by "very generous and committed friends." The identity of those friends is still a mystery.

The advertising component of the Super Bowl show has been as integral to the whole shebang as the half time performance and the choice of snacks. Ironically, Pepsi has chosen to walk away from the traditional format this year, and instead has opted to pursue a $20 million social media campaign engaging viewers in The Pepsi Refresh Project. The goal is to get people involved with "refreshing" their communities with innovative projects and ideas.

I checked in with several groups that have been active in the dialogue around maintaining a secular society, to get their take on whether they felt having Focus on the Family underwriting an ad was a problem - or if it was just my perception.

I spoke with Annie Laurie Gaylor, the co-founder of the Freedom From Religion Foundation, a thirty-one year old organization of "freethinkers (atheists and agnostics) devoted to monitoring violations of the separation of church and state." Gaylor talked to me about Focus on the Family, characterizing them as "a militant Christian group" that has the "dollars and a media empire" to put them on an equal footing with a corporation. On the censorship issue, Gaylor explained that her organization knew what it was like not to have access to the airwaves, because of both message and lack of finances. "Free speech ain't free," she said. Gaylor pointed to the need for an evenhanded policy and a level playing field to be set up by broadcasters. She questioned CBS's change of ground rules so late in the advertising cycle, and suggested that "the FCC should investigate the policy change." As to using the Super Bowl as a venue to deliver the Focus on the Family message, "Celebrate Family, Celebrate Life," Gaylor emphasized, "This is a group that dishonors the separation of church and state. They can really influence people [with this ad]. It's very concerning at every level. The best thing that could come out of this situation is for people to wake up and support groups working to preserve constitutional rights...and hold public officials accountable. We have a vociferous Christian right that would like to dismantle the wall between church and state."

Dr. Charles C. Haynes, senior scholar at the First Amendment Center, clarified by phone that, "The decision by CBS to air the Tebow ad is not a First Amendment issue since government is not involved. The Establishment Clause of the First Amendment only prohibits government from either promoting or inhibiting religion. As a private corporation, CBS is free to decide what commercials it will or will not put on the air. Of course, the decision to air a controversial ad has its own consequences in the court of public opinion."

The Center for Inquiry weighed in with a letter to CBS executives expressing their reaction to the decision "to air a controversial and politically charged advertisement." On their blog site, Derek C. Araujo, Vice President and General Counsel, wrote that "CBS's ideological bias is a reminder that speech can hardly be free when it is subject to the arbitrary decisions of those who control access to the media." When I interviewed him by phone he said that CBS's justification for their change of policy sounded like a "post-hoc rationalization." He noted that although the ad for a gay dating service, which CBS rejected last week, may not have been the "best produced," in light of recent revelations that the network had been consulting with Focus on the Family to craft their respective ad, that decision was troubling. Araujo said, "CBS seems to be accepting advertising based on what it thinks may be politically acceptable."

CBS currently has a black eye. In the consciousness of many, it won't be going away any time soon. Maybe they can get a jump on next year's advertising plans by soliciting the NFL to underwrite a public affairs announcement about the problem of Domestic Violence. That would be an enlightening message to share with a Super Bowl Sunday audience.

The article originally appeared at Women Make News.