NFL Right To Ban This Super Bowl Commercial?

[RamzFanz]

To be honest and to put this out there. The NFL could be sued on First Amendment grounds if they blocked or discriminated against a commercial due to content unless it was due to decency laws or on a few other narrow interpretations. Goodell no doubt knows these laws. I really doubt the NFL banned a commercial based on content regardless of whether you agree or disagree with the message. My guess is that this outfit has no where NEAR the advertising budget it takes to run a SB ad. Seems like it doesn't pass the BS test. Y'all probably know where I stand on gun rights but can we just let this one go as being internet lore?

While I agree with you in principle, unless the NFL is illegally discriminating against one protected group (such as race, sex, religion, etc), they can control 100% of their message and image. In most cases, the first amendment only applies to government censorship.

 

[RamzFanz]

Completely different. If Paul were to open this forum up to speeches by candidates for example, he couldn't say which candidates wouldn't be allowed to be on the forum if he was charging for those speeches to be aired. Even still it would be different and may not infringe on speech issues because this site is largely membership based and would likely not be considered a public area. I believe you have to be a member to post here - no?

TV stations or systems also can't discriminate based on content. Dish Network for example sued Direct TV because they were trying to block their commercials. They won. What grounds do you think they sued them on? When you start getting into advertising to the general public you start falling under the protections of the First Amendment and others.

The NFL can make all kinds of rules regarding its employees and anyone who works for them. They cannot tell you or me what we can say about the job the refs are doing this year (which for the record - sucks).

Part of what makes me skeptical of this commercial is that this decision would most likely be made by the network and not the NFL. The NFL may have this in their bylaws and that could possibly hold up. They could have a set of rules for their networks as to what can and can't be advertised during games. They would have to be careful there as well because there could still be issues due to the fact that the Supreme Court has ruled that businesses are covered by the First Amendment. If they took a commercial and determined it wasn't suitable due to content, they could very well be sued. But I guarantee you that if they had anything to do with stopping this commercial, they had their Ts crossed and their Is dotted long before rejecting it.

If you own a piece of property that has say a shopping center on it that is open to the public, the areas to and from but not inside the doors of the businesses is considered public and the property owner cannot interfere with free speech by those using that property. The airwaves have been deemed public by the Supreme Court as well.

The Constitution and Bill of Rights may mostly be interpreted as documents protecting us against the gov't. But no individual, group, or business, is allowed to usurp those rights. The difference generally comes in - and this is where it gets sticky - is what you are determining is the reason for denying someone. Are you denying based on a political stance or content? Bummer for you. Have you defined your policy to simply state that guns won't be a part of any commercial either for or against? You are probably safe.

Here's a simple one. Can you say "coloreds" aren't allowed in your establishment? No? But it is a business - not a government building. Why not?

Yeah, it's an interesting subject but I think you're mostly off base on this. The public owns the airwaves, and to some extent cable systems, but they are bid out. There are very few restrictions on content of paid services because that WOULD be government censorship.

You can't say "coloreds" aren't allowed because race is a protected class. You can absolutely let one political party on a show and not another.

I'm not aware of the case but I would assume Dish paid to advertise on a network and DirecTV was blocking it. I would bet it wasn't decided based on first amendment rights but contractual law or FCC regulations. Now I'm curious.

Here's an example for you. If you post pro-gun comments on facebook and your employer is anti-gun, unless you have an employment agreement that allows it, you can be fired. If you bad mouth the company you can be fired. If you have party pics of you behaving in a manner they don't like you can be fired.

 

[RamFan503]

While I agree with you in principle, unless the NFL is illegally discriminating against one protected group (such as race, sex, religion, etc), they can control 100% of their message and image. In most cases, the first amendment only applies to government censorship.

In most cases maybe. But the First Amendment has nothing to do with groups and neither does the entire Constitution or Bill of Rights. And they both cover all of us equally. Simply put - the gov't is not allowed to usurp the two documents and is obligated to make sure non-gov't entities don't either.

 

[RamFan503]

Yeah, it's an interesting subject but I think you're mostly off base on this. The public owns the airwaves, and to some extent cable systems, but they are bid out. There are very few restrictions on content of paid services because that WOULD be government censorship.

You can't say "coloreds" aren't allowed because race is a protected class. You can absolutely let one political party on a show and not another.

I'm not aware of the case but I would assume Dish paid to advertise on a network and DirecTV was blocking it. I would bet it wasn't decided based on first amendment rights but contractual law or FCC regulations. Now I'm curious.

Here's an example for you. If you post pro-gun comments on facebook and your employer is anti-gun, unless you have an employment agreement that allows it, you can be fired. If you bad mouth the company you can be fired. If you have party pics of you behaving in a manner they don't like you can be fired.

Again - there are some narrow interpretations when dealing with decency and such. But if an employer fired you because you spoke out for gun rights, good luck to him. He'd be toast. If you are bad mouthing the company in which you work, you are performing to the detriment of the company. They could fire you on those grounds.

The gov't and pseudo gov't agencies censor the air waves all the time. And what do you think the FCC regulations are based on and supported by? Contractual law? Not sure what you mean by that or how it would have come into play.

 

[RamzFanz]

Again - there are some narrow interpretations when dealing with decency and such. But if an employer fired you because you spoke out for gun rights, good luck to him. He'd be toast. If you are bad mouthing the company in which you work, you are performing to the detriment of the company. They could fire you on those grounds.

The gov't and pseudo gov't agencies censor the air waves all the time. And what do you think the FCC regulations are based on and supported by? Contractual law? Not sure what you mean by that or how it would have come into play.

The FCC prohibits a lot of speech and images. As a government entity, they pretty much make whatever rules they want. In my opinion, they have long ago surpassed their constitutional limits.

however, I think we are discussing different things here.

The network or the NFL, based upon their contract between each other, can ban any commercial on any subject as long as they aren't discriminating against a protected class. Gun owners are not a protected class. If they said Asians can't advertise, that would be a civil rights violation. If they say fast food companies can't advertise because they think it's bad for you, it's completely legal. They control that show and network and it's content as long as it's within the FCC regulations and doesn't violate the civil rights of a protected class.

The constitutional rights belong to the person who owns the rights to broadcast, not the advertisers. I can't walk into Walmart and advertise my business. I can't stand in your yard in an ape costume and advertise my business. I can't make the Goodyear blimp advertise another tire company.

The only Dish / DirecTV suit I could find was based on the claims made in the ad being false, not that they weren't allowed to advertise over DirecTV through the networks.

 

[RamzFanz]

Again - there are some narrow interpretations when dealing with decency and such. But if an employer fired you because you spoke out for gun rights, good luck to him. He'd be toast. If you are bad mouthing the company in which you work, you are performing to the detriment of the company. They could fire you on those grounds.

The gov't and pseudo gov't agencies censor the air waves all the time. And what do you think the FCC regulations are based on and supported by? Contractual law? Not sure what you mean by that or how it would have come into play.

Different states have different employment laws but in most states, like MO, you don't need a cause to fire someone. You can let them go because you don't like their shoes as long as you aren't discriminating against a protected class.

 

[RamzFanz]

Here's an interesting article in regards to employers. The answer is, it depends on the state.

"You Can't Rely on the First Amendment
Many people assume that the right to free speech, part of the First Amendment of the U.S. Constitution, protects their right to say whatever they want, in a blog post or otherwise. They've got it wrong, however. Like the rest of the federal Constitution, the First Amendment protects all of us from the government, not from private companies. While the First Amendment prohibits the government from telling us what we can say (within reason), it doesn't apply to private employers."

http://www.nolo.com/legal-encyclopedia/fired-blogging-29762.html

 

[RamFan503]

I realize that some of the issues are cloudy and have been muddled over time but I dealt with a lot of this stuff when I was in politics as many of the issues we dealt with were controversial. I have also dealt with 2nd Amendment issues many times. The single biggest reason you don't find many people or businesses pursuing these cases is because many of the lower courts are a crap shoot and you end up having to take it all the way to the Supreme Court which takes mucho dinero and attorneys wanting to challenge.

The FCC prohibits a lot of speech and images. As a government entity, they pretty much make whatever rules they want. In my opinion, they have long ago surpassed their constitutional limits.

however, I think we are discussing different things here.

The network or the NFL, based upon their contract between each other, can ban any commercial on any subject as long as they aren't discriminating against a protected class. Gun owners are not a protected class. If they said Asians can't advertise, that would be a civil rights violation. If they say fast food companies can't advertise because they think it's bad for you, it's completely legal. They control that show and network and it's content as long as it's within the FCC regulations and doesn't violate the civil rights of a protected class.

The constitutional rights belong to the person who owns the rights to broadcast, not the advertisers. I can't walk into Walmart and advertise my business. I can't stand in your yard in an ape costume and advertise my business. I can't make the Goodyear blimp advertise another tire company.

The only Dish / DirecTV suit I could find was based on the claims made in the ad being fales, not that they weren't allowed to advertise over DirecTV through the networks.

Gun owners are not a protected class. You're right. You also are right that they can say we will not accept certain advertisements. But it is the rationale that comes into question. Is it what they are saying? Or is it about a thing? I don't know if and on what grounds the NFL supposedly turned down this commercial. It would have a lot to do with whether they have the right to do so. In most cases - the simpler the better.

The decision in the Dish v Direct case was based on the fact that Direct was allowing cable companies to advertise but trying to deny Dish. Part of the reason for the decision was that they were using the public airwaves. Advertising is tricky though and you do have to ensure that you are not denying while allowing something similar in nature.

The link you provided is an opinion but not necessarily based on precedent. I can deal with what I have seen.

I think we are talking in circles here. I don't know what requirements the NFL has given to its networks nor how they are stated. All I'm saying is that if this was truly a case about the NFL taking an anti 2nd Amendment rights stance, they could be sued on those grounds. I don't buy the whole thing and think it is just internet lore designed to pit people against the NFL. There's just something missing.

You don't have the right to go into a Walmart and advertise any business whether they have allowed advertising by other business inside or not. If Walmart however, allowed someone to circulate petitions inside their doors and then told someone else they couldn't based on what they were circulating, they could get sued. Outside? That depends on what they have done historically and if they allow any other similar kinds of uses of their "public" area.

A similar issue was the reason Target decided to say no to the bell ringers. They consulted with Constitutional attorneys and determined that if they allowed the Salvation Army to use their store fronts to solicit, they couldn't refuse others that would like to solicit in front of their stores. The Salvation Army solicitors as a group are not protected by the Bill of Rights. The decision was to have a no soliciting policy that applied equally to EVERYONE. Failure to do so would allow anyone to use their store front to solicit what ever they wanted - be it charitable or for profit. Why? Discrimination based on content. As a result, our petitioners could not circulate in front of Target stores but could in front of other businesses that did not establish this outright policy.

Anyway, none of this really matters. As I said before, I'm pretty sure Goodell et al know the laws and already anticipated this kind of issue before refusing the commercials if they did indeed do so. It's why attorneys get paid.

 

[RamFan503]

Different states have different employment laws but in most states, like MO, you don't need a cause to fire someone. You can let them go because you don't like their shoes as long as you aren't discriminating against a protected class.

Yep. Oregon is the same. In fact, our attorney has told us that when it comes to firing someone, the best thing to do is NOT give them a reason unless you are on seriously steady ground and are going to refuse their unemployment claim. But firing someone and stating it was because of what they said in a blog? I think you would be hard pressed to win that one even if the state allows you to do so. If they pressed it to the high courts - my guess is that you'd lose unless they were harming you or your business. They don't have that right either.

 

[RamzFanz]

I think we are talking in circles here. I don't know what requirements the NFL has given to its networks nor how they are stated. All I'm saying is that if this was truly a case about the NFL taking an anti 2nd Amendment rights stance, they could be sued on those grounds.

A business has essentially the same rights as an individual. There is no individual right to advertise on someone else's network regardless of the subject except for some limited election laws. I don't see how anyone could win a lawsuit. Being opposed to a current constitutional amendment is their right and would be protected by the first amendment.

The only reason a business would have to allow a group gathering signatures etc is if they have an area designed for public general use like a courtyard or park. The California Supreme court heard the Target case and determined they do not have an area designed for the general public and could deny or accept any solicitors they wanted. They claim their policy has always been no solicitors of any kind.

I guess we will just disagree on this one. Interesting subject with a lot of nuances and exceptions.

 

[RamzFanz]

Yep. Oregon is the same. In fact, our attorney has told us that when it comes to firing someone, the best thing to do is NOT give them a reason unless you are on seriously steady ground and are going to refuse their unemployment claim. But firing someone and stating it was because of what they said in a blog? I think you would be hard pressed to win that one even if the state allows you to do so. If they pressed it to the high courts - my guess is that you'd lose unless they were harming you or your business. They don't have that right either.

Yeah, that seems to still be a gray area that hasn't been taken on by the federal courts and may never be.

So far, in the cases I have read, your public speech is not protected in most states unless that speech has been listed as allowed. An example would be banning together against work condition. That's specifically allowed. All of the firings I've seen so far held up.

California has a law that no legal behavior outside of work can result in being fired. I think they are the only ones. I like that law.

 

[RamFan503]

I guess we will just disagree on this one. Interesting subject with a lot of nuances and exceptions.

Exactly. I had to deal with this crap for four years. This I can tell you. I don't miss the political gamesmanship by not only the politicos but the state and lower courts themselves. Courts aren't supposed to be biased or fickle, but I gave up that notion long ago.

Cheers man.

 

[RamFan503]

California has a law that no legal behavior outside of work can result in being fired. I think they are the only ones. I like that law.

Which makes you wonder what people in right to work states are thinking. They could fire for something an employee did outside of work if they just didn't say why. Of course then the employee would then claim retaliation and ... EH... fucking legal crap anyway.:cray:

 

[jrry32]

Completely different. If Paul were to open this forum up to speeches by candidates for example, he couldn't say which candidates wouldn't be allowed to be on the forum if he was charging for those speeches to be aired. Even still it would be different and may not infringe on speech issues because this site is largely membership based and would likely not be considered a public area. I believe you have to be a member to post here - no?

TV stations or systems also can't discriminate based on content. Dish Network for example sued Direct TV because they were trying to block their commercials. They won. What grounds do you think they sued them on? When you start getting into advertising to the general public you start falling under the protections of the First Amendment and others.

The NFL can make all kinds of rules regarding its employees and anyone who works for them. They cannot tell you or me what we can say about the job the refs are doing this year (which for the record - sucks).

Part of what makes me skeptical of this commercial is that this decision would most likely be made by the network and not the NFL. The NFL may have this in their bylaws and that could possibly hold up. They could have a set of rules for their networks as to what can and can't be advertised during games. They would have to be careful there as well because there could still be issues due to the fact that the Supreme Court has ruled that businesses are covered by the First Amendment. If they took a commercial and determined it wasn't suitable due to content, they could very well be sued. But I guarantee you that if they had anything to do with stopping this commercial, they had their Ts crossed and their Is dotted long before rejecting it.

If you own a piece of property that has say a shopping center on it that is open to the public, the areas to and from but not inside the doors of the businesses is considered public and the property owner cannot interfere with free speech by those using that property. The airwaves have been deemed public by the Supreme Court as well.

The Constitution and Bill of Rights may mostly be interpreted as documents protecting us against the gov't. But no individual, group, or business, is allowed to usurp those rights. The difference generally comes in - and this is where it gets sticky - is what you are determining is the reason for denying someone. Are you denying based on a political stance or content? Bummer for you. Have you defined your policy to simply state that guns won't be a part of any commercial either for or against? You are probably safe.

They cannot tell us because they do not have the means to control or punish those that do not work for them. We don't get a pay-check from a NFL organization to have a fine taken out of. Nor do they have a contract with us that stipulates those punishments.

My bet would be that the NFL has certain clauses in their TV contracts that give them the right to deny certain commercials on grounds listed in the document.

Regardless, while you make fair points, I would have to guess the airwaves being public wouldn't matter in this case as the NFL would have it covered somewhere in their agreement that denied that specific commercial. But you do bring up some exceptions to the general rule. I just doubt they would apply here because I'm sure the NFL is quite aware and would safeguard itself against it.

Here's a simple one. Can you say "coloreds" aren't allowed in your establishment? No? But it is a business - not a government building. Why not?

That's a different issue than what we're discussing here.

 

[RamFan503]

They cannot tell us because they do not have the means to control or punish those that do not work for them. We don't get a pay-check from a NFL organization to have a fine taken out of. Nor do they have a contract with us that stipulates those punishments.

My bet would be that the NFL has certain clauses in their TV contracts that give them the right to deny certain commercials on grounds listed in the document.

Regardless, while you make fair points, I would have to guess the airwaves being public wouldn't matter in this case as the NFL would have it covered somewhere in their agreement that denied that specific commercial. But you do bring up some exceptions to the general rule. I just doubt they would apply here because I'm sure the NFL is quite aware and would safeguard itself against it.



That's a different issue than what we're discussing here.

Point A - They couldn't go after us regardless unless they could prove something akin to defamation. A fine? No. But a lawsuit to either cease and desist or collect damages? Certainly. But the burden of proof on both defamation and damages would be pretty hard to pursue and hardly worth it to them unless it received real traction.

Point B - You are no doubt right and they take into account speech issues within them.

Point C - Kinda what I said except that there is not a real general rule beyond what someone will push for. The courts don't go after these issues, they have to be brought before them. I would think and have said that the NFL likely has their ducks in a row.

Point D - It's not really a different issue - just posed in a different circumstance. If you as a business try to deny an individual's rights - you are in the wrong. A business has been considered the same as an individual. I don't necessarily agree with that as a narrow interpretation but.. who am I.

So... do I agree with the premise that they should? Nah. Do I think they SHOULD be able to? Debatable depending on their criteria. You can't have your cake and eat it too.

The courts have also ruled that the NFL is exempt from certain anti-competition laws. Kinda hard to guess how the courts would come down so it would also be a hard call if you were thinking about suing them on this kind of basis. Think about it - how many companies have Congress contemplating action against them that supersede their normal prevue? Could you imagine trying to go to court against an entity that the gov't itself can't come to grips with on employee rights or anti-trust issues?

Sorry - now I am going down a totally different road.

Cheers and out.

 

[jrry32]

Point A - They couldn't go after us regardless unless they could prove something akin to defamation. A fine? No. But a lawsuit to either cease and desist or collect damages? Certainly. But the burden of proof on both defamation and damages would be pretty hard to pursue and hardly worth it to them unless it received real traction.

Nah, there's not legal standing for defamation unless someone was knowingly posting lies, passing them off as factual truth(not as opinions) and have the intent to injure the reputation of the ref or player. Criticizing the refs or players isn't enough for defamation.

Point D - It's not really a different issue - just posed in a different circumstance. If you as a business try to deny an individual's rights - you are in the wrong. A business has been considered the same as an individual. I don't necessarily agree with that as a narrow interpretation but.. who am I.

It's not a First Amendment issue. It's a Civil Rights issue. It falls under the Civil Rights Act. If we were talking First Amendment exceptions, it would be something like the "Fighting Words" Exception.

And that's a bit different from the current issue because there are specific laws against it...it's the government stopping it from happening rather than the private business.

Cheers and out.

Same to you, I enjoyed the discussion.

 

[Ramhusker]

Just remember the NFL will likely do what the government prefers them to do because they receive a nice chunk of change from the government. So, there's that.

 

[RhodyRams]

going off on a slight tangent here.

If the NFL is so anti gun that they would ban this commercial, then why do they let the Patriots fire off muskets after every score... and Tamp can fire off a cannon.

Now I know they are shooting blanks and not using live ammo, but in this day and age of political correctness, dont ya think there should be something said about these 2 issues?

 

[Warner4Prez]

I just think it's smart business. Like others have said, what Costas did was unprompted and on live TV, he isn't the voice of the NFL. I don't want to watch gun commercials during the Super Bowl, same as I don't want to watch abortion commercials or health care commercials. The common fan doesn't need to be inundated with politics on football's biggest night of the year. Sounds like wise business practice to me.

 

[Ramhusker]

I just think it's smart business. Like others have said, what Costas did was unprompted and on live TV, he isn't the voice of the NFL. I don't want to watch gun commercials during the Super Bowl, same as I don't want to watch abortion commercials or health care commercials. The common fan doesn't need to be inundated with politics on football's biggest night of the year. Sounds like wise business practice to me.

Agreed, it gripes me to watch the "green" propaganda commercials as well. I'm sure an ACA ad will find its way on there too. Blah!