Fatin Haddad, Government Law Review member
According to FOX News, a commercial that is approved to air during the Super Bowl is stirring up quite a controversy. College football phenomenon, Tim Tebow, and his mother are scheduled to appear in a pro-life commercial during the Super Bowl. The commercial is being funded by a conservative, Christian group—known to the public as Focus on the Family—and the message is a recounting of Mrs. Tebow’s decision between her life and the life of her unborn child, which turned out to be her Heisman Trophy winning, star quarterback and heartthrob son Tim Tebow, despite doctors’ suggestions to abort the pregnancy due to the serious risk of death she faced in carrying the child to term.
While Mrs. Tebow was pregnant with her son Tim she went on a mission trip to the Phillippines and contracted a serious infection which doctors feared would kill her if she did not abort the pregnancy. She made the choice to carry the child to term, despite the risk of her own death, but yet her son was born and grew to be one of the most talented college football quarterbacks of his time. This true story will be the content of the commercial, and the underlying message is said to be—by Focus on the Family—focused on “celebrating families.” Pro-choice women’s groups, such as Women’s Media Center, however, seem to think differently as they have voiced concerns that this commercial may lead to anti-abortion retaliation in the form of violence towards “reproductive health providers and their patients,” and should therefore be banned. Several groups have joined the cause, rallying together to petition CBS to ban the commercial as well.
The argument made by the women’s groups, who are protesting against the commercial, is primarily based on the fact that CBS has had a “long history” of banning political advertisements; however, CBS replied that it has changed its policies recently and thus the commercial is consistent with its current standards. In light of the current dilemma regarding the highly controversial topic of abortion—which has historically divided Courts, politicians, and even every day citizens—there are Constitutional considerations that make for an interesting perspective on which way the scale of freedom of speech should tip between the women’s rights groups and the Tebows.
A quick history on how our rights are guaranteed by the amendments is helpful here. Although freedom of speech is guaranteed by the first amendment, the amendments were originally only applicable to the Federal Government, and later made applicable to the States through a series of suits brought to the Supreme Court alleging violations of these rights by the States, which resulted in the Incorporation Doctrine. The Incorporation Doctrine makes it clear that in order to trigger a triable case for a Constitutionally protected right to freedom of speech, a person bringing suit must show that they are suffering a violation of his or her rights by a Federal government or State actor. Now there are several tests to show that a private entity, such as CBS, is sufficiently related to a government that it constitutes action by that government and must meet certain constitutional standards; however, for argument’s sake, let us assume that because CBS is heavily regulated by the Federal Government—in regard to what constitutes appropriate programming during certain hours of the day—it will be considered government actors. Therefore, although the women’s rights groups may not have a valid argument as to CBS violating its own policies of non-political advertisements, they may have an argument related to the boundaries of the Tebows’ right to freedom of speech.
There is no question that the Tebows have a constitutionally protected right to freedom of speech, but Courts have unequivocally held that the right to freedom of speech is not unlimited and must be restricted on certain occasions. Given the fact that the Tebow commercial will be allowed to air there is no question of whether his right to freedom of speech is being violated. What there is, however, is a question of whether his right to freedom of speech will infringe on the rights of others, advocated for by the women’s rights groups, to such an extent that it should be banned. One constitutionally implied limitation on freedom of speech is the “clear and present danger” doctrine. This doctrine prohibits words that incite “imminent lawless action”. This seems to be an argument that the women’s rights groups are making; in their view, if the commercial is allowed to air during such a publicized time slot there will inevitably be anti-abortion violence. However the standard for restricting speech that creates a “clear and present danger” is very rigorous and requires that the complainants show (1) there is advocacy of the use of force or of law violation (2) where such advocacy is directed to inciting or producing, (3) imminent lawless action, and (4) the advocacy is likely to incite or produce such action.
It is very clear that the advertisement in no way advocates for or incites any force or lawless action. The fact that it is expressing the views of a family who clearly are against abortion, as they have a right to be, cannot be said—by any stretch of the imagination—to be intended to cause any harm whatsoever. A brief look into the contours of the limitations on freedom of speech clearly reinforces the Tebows’ right to voice their views. As far as women’s rights groups’ suggestion that the commercial should be banned for the safety of those with differing views, it is quite clear that they cannot meet the constitutional requirements support their claims, however other arguments regarding concerns with CBS and their policies for different reasons have since been raised.
 Women’s Groups Blast ‘Divisive’ Pro-Life Super Bowl Ad — Without Even Seeing It, Fox News, http://www.foxnews.com/story/0,2933,583999,00.html (last visited Jan. 31, 2010).
 See Brandenburg v. Ohio, 395 U.S. 444, 450 (1969).
 Id. See United States v. Williams, 553 U.S. 285 (2008).
 Brandenburg, 395 U.S. at 447.
 Women’s Groups Blast ‘Divisive’ Pro-Life Super Bowl Ad, supra note 1.
 Brandenburg, 395 U.S. at 447.
 See CBS is Fine With Tebow’s Pro-Life Ad, But Rejects Gay Dating Ad, Yahoo!, http://sports.yahoo.com/nfl/blog/shutdown_corner/post/CBS-is-fine-with-Tebow-s-pro-life-ad-but-reject?urn=nfl,216642 (last visited Jan. 31, 2010) (commercial for a homosexual dating site was rejected by CBS on grounds of lack of creativity and credit concerns, but critics suggest it has more to do with bias).