Media Censorship of 'Controversial' Ads: What Good is Freedom of Speech if No One Will Take Your Money?

Two of the major TV networks have again exercised their prerogative to refuse political advertising whose content is deemed too controversial to air. This time the group whose money proves no good is the National Republican Trust Political Action Committee, an entity unaffiliated with the Republican Party but sympathetic to much of its agenda. Instead of denouncing the Democratic Party, however, the Trust wanted to run an ad denouncing the plan to construct a mosque near the "Ground Zero" site in New York City. The plan, though supported by Mayor Bloomberg is controversial for many New Yorkers who, like the Trust, see Islam as an enemy of the United States, or at the least think it grievously insensitive for the muezzin to perform the call to prayer near where terrorists killed nearly 3,000 people in the name of Islam.

In this particular case, the networks' decision makes sense from a legal standpoint. The text of the Trust's commercial is pretty much defamatory in its indiscriminate identification of the group that wants to build the mosque with the gang that destroyed the World Trade Center. "They" blew it up, the ad says, and now "they" want to insult Americans further by building the mosque. That begs the great question asked by Edmond O'Brien in The Wild Bunch: "Who the hell is they?" The pronouns may fairly represent the Trust's Islamophobia; as far as it's concerned, I suppose, Islam destroyed the Twin Towers and Islam now wants to salt the wound by building the mosque. Unfortunately, the ad copy could just as well be read to accuse the specific group that wants to build the mosque of actually participating in the 2001 attack. That ought to get the Trust sued (since the ad can already be seen on YouTube and the Trust's own website), and on that expectation the networks are wise to steer clear of putting themselves in legal jeopardy.

At the same time, I worry whether the networks' power to refuse advertising is too arbitrary and inconsistent with prevailing notions of free speech. Not every political ad that's been rejected is likely to have been as obviously slanderous as the Trust's submission, and the networks have sometimes seemed more worried about merely offending people rather than slandering anyone. Furthermore, the Supreme Court over the past 35 years or so has laid down precedents affirming that spending money on political advertising is a "free speech" right protected by the First Amendment to the Constitution. If freedom of speech depends on being able to buy ad time, doesn't it also impose an obligation on media to sell the time? And if a private business's right to refuse service to a theoretical paying customer is subject to federal scrutiny as a possible violation of the customer's civil rights, shouldn't the government have similar oversight regarding the mass media's power to thwart the more fundamental civil and political right to express oneself by buying an ad? Once we assert the media's crucial role in political discourse, which is a public interest if anything is, we have to ask whether it should be up to the media alone to determine whether any advertisement is too controversial to be shown. The Trust might still get slapped down, or it might be advised on alterations that would make its ad air-worthy, but other, less legally dubious advertisers might be freed to do business with the media in the good old American way. If we're going to treat money like speech, we may as well do it right.