No Fairness Doctrine for PETA

"STUDIES SHOW VEGETARIANS HAVE BETTER SEX" proclaims the ad (see above) that PETA wished to run during the Superbowl. As reported (e.g., here), NBC declined to run the ad because it "depicts a level of sexuality exceeding [NBC] standards." (Full list of objections here). Herewith, a few observations:

1) The rejection of the ad---and its subsequent viewing on Youtube and elsewhere---is arguably a boon to PETA. Going "viral," the ad may get viewed and discussed as much as or more than it would have if it had run during a Superbowl timeout, and PETA saves the cost of the advertising buy. Indeed, one wonders whether PETA didn't hope to have the ad rejected for just these reasons.

2) I question the ad's efficacy in getting people actually to "Go Veg." Sure the ad will be watched a lot, but it's hard to imagine a lot of grocery shoppers, in deciding between the pumpkin and the hamburger, thinking "Hmm, I like the taste of red meat but if I buy this pumpkin I can . . . er . . . take it home and have a supermodel come over and lick it. Yeah, I'll get the pumpkin." Another PETA ad (just below) makes the related point that meat consumption can cause impotence.

3) Perhaps some people will stop eating meat, or eat less meat, out of fear of impotence, but this strikes me as an odd advertising choice for People for the Ethical Treatment of Animals. If---as I believe along with PETA---it's unethical to harm or kill sentient animals for food and clothing---then it would be wrong even if it had no adverse effects on human health.

4) Okay, I get the real point of the ad: both to generate publicity for PETA, driving traffic to its website, and more broadly to change the image of vegetarians and vegans from that of under-nourished hairy nerds to sexy.

5) Is the ad sexist? Sure, in the same way that a great many ads that use female bodies to sell products are. This one is a bit more explicit but that goes to its sexyness, not its sexism. (Props to Nigel Tufnel).

6) Predictably, PETA argues that the real reason NBC banned the ad was its pro-vegetable/anti-meat message. This would be plausible if PETA could point to NBC's rejection of such ads when they did not contain sexual content.

7) Suppose PETA could do that. Even then, NBC would be acting within its legal rights. Federal statutory law requires licensed broadcasters "to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy." In addition, prior to the Reagan Administration, the FCC enforced the "fairness doctrine," which required broadcasters to devote some time to speech by people with a variety of viewpoints on controversial issues.

8) In 1969, in the Red Lion case, the Supreme Court upheld against a First Amendment challenge one aspect of the fairness doctrine: a right-of-reply for political candidates. However, the decision rested in substantial part on the fact that the electromagnetic spectrum is scarce, and that with only a small number of channels, Congress could insist on viewpoint diversity as the price of an exclusive frequency license. However, with the advent of satellite, cable and internet tv offering thousands of options, the scarcity rationale seems weak.

Thus, if the FCC or Congress were to attempt to re-enact and extend the fairness doctrine so as to prevent tv stations from excluding viewpoints like PETA's, there is some doubt as to whether such a regulation or law would be upheld against a First Amendment challenge.

10) But in any event, any such attempt to create a new fairness doctrine would likely be overwhelmed by technology. Many people watch the Superbowl ads because they are especially creative (and because many Superbowl viewers are not all that interested in football). However, in general, commercial advertising on television is a dying form due to DVRs and other technology. To get viewers to watch ads, television show producers must increasingly include them in the storylines of their shows. That integration---annoying as it is to many viewers---very much strengthens the argument of the shows' producers that they should have the right to reject advertising based on content. It's easy enough to show your main character drinking a Coke or driving a Prius. It's much harder---and more disruptive of artistic control---to show him or her listening respectfully to a speech questioning the scientific basis for global warming.

Posted by Mike Dorf