Censorship of Advertisers

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Protection for advertising and other forms of "commercial speech" under the First Amendment to the U.S. Constitution dates back only to the mid-1970s. Historically, most U.S. court rulings regarding the protection of commercial speech have concerned attempts to block ads for information considered socially valuable—positions on social issues such as healthcare, for example—or to purchase ads for political candidates. The Supreme Court has consistently shown little interest in protecting advertisers' right to sell soft drinks, cars, dog food and the like.

At least theoretically, the ban against censorship of information in the U.S. extends to commercial speech and advertising. Any person or group contending that a given ad is libelous, obscene or otherwise harmful must seek legal restitution after the offending ad has been published or aired.

Individual newspapers, magazines and radio and TV stations, however, have the right to review advertising, demand changes or block commercial messages prior to publishing or broadcasting. The U.S. Supreme Court has generally held that the right to publish carries with it the right not to publish various messages, including potentially harmful advertising messages. Broadcast and print media may draft general policies concerning the forms of advertising that they will or will not accept or they can make decisions on individual advertisements.

Any newspaper, for example, can review an ad submitted to it for paid publication and refuse to print it. The now-defunct St. Louis Globe-Democrat had both an office and individual with the title of "advertising censor." Other publishers and broadcasters have drafted policies forbidding ads for tobacco, alcoholic beverages or "adult" products.

In the 1980s, faced with the AIDS epidemic, U.S. TV networks drafted policies regarding ads for condoms. Broadcasting executives recognized that the product could help prevent sexually transmitted diseases, but they feared that the spots might contain tasteless or sexually explicit messages. It was decided, therefore, to bar condom commercials from the three major broadcast TV networks but to allow local affiliates to accept or reject condom commercials based on the local executives' sense of their own communities' standards.

A medium may censor advertising based on the content of an individual message or an individual execution. A broadcaster or publisher can review a single ad; can declare it inaccurate, tasteless, violent or otherwise harmful; and can demand changes or refuse to air or publish it. One midwestern daily allowed ads from both sides of the abortion issue in the 1970s as a matter of policy—even including an ad featuring a photo of a fetus in a trash can—that prompted a great deal of outcry from readers.

Any medium can demand changes in advertising art and copy. It can reject advertising that features inaccurate, unhealthy stereotypes; gratuitous sex and nudity; poor taste; questionable claims; or glorification of violence. Often, however, potentially harmful advertising is accepted for publication or broadcast because it provides needed sales revenue for the medium.

Legally, decisions to reject advertising must be made on the basis of fairness. Declining one restaurant's ads because a local ad manager's brother-in-law owns a competing restaurant is not protected under the First Amendment but under fair trade laws designed to prevent restraints on commerce.

Although the U.S. government does not have direct authority in the prior restraint of advertising by individual media, it can have influence. A radio or TV station that is broadcast over the public airwaves must periodically renew its license with the Federal Communication Commission, and stations that air irresponsible advertising may be refused renewal.

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