Antiabortion activist plans graphic ad for Super Bowl. Can station refuse?

Many Super Bowl viewers look forward to the over-the-top, made-for-the-day ads as a festive part of the annual football spectacular. But this year viewers in several media markets will also see some graphic political messages as well.

During pregame shows and the game itself, viewers in several states will see images of aborted fetuses in ads by Randall Terry, the longtime antiabortion activist who has declared himself a Democratic candidate for president.

TV stations are generally required to run any ad for which a candidate buys a time slot within 45 days of a primary or election, but NBC affiliate WMAQ in Chicago is refusing to run Mr. Terry’s ad on Super Bowl Sunday.

At the heart of the controversy is whether Mr. Terry really qualifies as a candidate for president. The case also raises questions about whether a political party can be the judge of who is a legitimate candidate, as well as how far free-speech rights extend when it comes to political advertising.

The FCC could rule as early as Friday afternoon on whether the station is required to run the ad.

“Mr. Terry does not meet the FCC requirements to become a ‘bona fide’ candidate for the Democratic nomination for President of the United States,” says a written statement from WMAQ. Some of the reasons, the statement says: Mr. Terry doesn’t meet requirements for the Illinois ballot; Terry has stated publicly that he is hoping to exploit anti-censorship rules for candidates in order to get airtime for ads; and the Democratic National Committee has said Terry’s “claims to be a Democratic candidate for President are false.”

Terry disputes the station’s argument. He says that he’s filed paperwork to be a write-in candidate in about 75 of the 102 counties in Illinois, including those where the ad would air. He’s also been on the Democratic ballot in several other states, and in Illinois has conducted a number of campaign speeches and distributed literature, which he says has been considered evidence of candidacy in previous cases.

What’s at stake, Terry says in an interview with the Monitor, is “whether or not we have free elections.”

The most disturbing part, to Terry, is a recent letter from Democratic National Committee executive director Patrick Gaspard, challenging his status as a candidate (a letter which figured into WMAQ’s argument and has also caused some stations in Missouri and Oklahoma to await the FCC ruling).

Parties shouldn’t have the right to exclude a candidate from the primary process based on his creed, Terry says. “Is the FCC going to force all candidates and voters to bow their knees to the party?”

In a Feb. 2 letter to the FCC, Terry says the party’s suggestion to TV stations not to run his ads constitute “content-driven exclusion, and is therefore forbidden under Becker v. FCC,” a 1996 ruling that found a station did not have the right to limit the times during which a graphic abortion ad by a political candidate could be shown.

Generally, “free speech trumps all” when it comes to the rights of candidates to air political ads, says Barbara O’Connor, director of the Institute for the Study of Politics and Media at California State University. But when it comes to the logistics of a station airing such ads at particular times, “the FCC has conflicting rules,” she says.

The antiabortion ads have already run in several states, including in New Hampshire in advance of its Jan. 10 primary, in which Terry appeared on the Democratic ballot. Some viewers called the station, alarmed by the ads, but when the manager explained that the station was required not to censor candidates’ ads, they generally understood.

On Super Bowl Sunday, the anti-abortion ads – some sponsored by him and some by congressional candidates – will run in 11 markets in Missouri, Illinois, Indiana, and Oklahoma, Terry says. Airtime during the game itself has only been purchased in two markets, but Terry would not say which ones.

He next plans to buy ads during the GRAMMY Awards show on Sunday Feb. 12.

“My mission is to drive child killing to the front and center of the political debate,” Terry says. “Every social movement in our lifetime has used graphic images of victims,” he says, citing images from the civil rights movement of the murdered body of black youth Emmett Till, and of activists being attacked by dogs. Likewise, he says, the fetus images “are a part of political revolution.”