Political Advertisements in the Era of Fleeting Indecent Images and Utterances
Reed-Huff, LaVonda N., St. John's Law Review
Television and radio advertisements for years have been effective and popular campaign tools used by political candidates to gain votes. In an era of increasingly negative political campaign advertisements, some political figures and candidates have been the target of negative broadcast advertisements, suggesting that they have engaged in some form of sexually immoral or somehow unacceptable conduct.1 Election seasons in recent years have ushered in a new breed of increasingly vulgar and sexually charged political broadcast advertisements.2 So extreme are some advertisements in this new genre of political speech, they are dangerously close to violating current federal law prohibiting the broadcast via television and radio of indecent materials.
The once hypothetical sexually suggestive political advertisement is now a reality, and the truly indecent political advertisement might be on the near horizon. In the 1980s, Larry Flynt, creator of Hustler magazine, launched a campaign for President.3 Flynt promised that his campaign advertisements would contain hardcore pornography.4 The Federal Communications Commission (the "FCC" or the "Commission") was prepared at the time to issue a ruling permitting broadcasters to reject the advertisements.5 Flynt never requested airtime for the advertisements, and the FCCs ruling never was issued.6
This new breed of political advertisements - Flynt's proposed advertisements not included - while not indecent under the FCCs current definition, is closer to crossing the lines of indecency than were offensive racist advertisements and gruesome anti-abortion advertisements of years past. In 2006, a sexually suggestive television advertisement appeared in Tennessee endorsing Republican Bob Corker in his race against Democrat Harold Ford, Jr. for a U.S. Senate seat.7 The Corker advertisement used sexually suggestive visual images to suggest that Ford frequented wild sex parties and had sexual liaisons with white women.8 Ford is black. In the advertisement, the bare shoulders and face of an otherwise seemingly unclothed young blonde woman appeared on the screen as the young blonde winked and purred into the camera that she had previously met Ford at a Playboy party.9 The advertisement closed with another shot of the still questionably clothed young blonde teasing Ford to call her.10 Ford lost the election.11 Another television advertisement broadcast in New York in the same year endorsed Republican Raymond Meier in his U.S. congressional campaign against Democrat Michael Arcuri.12 The advertisement opened with superimposed images of a woman who appeared to be an exotic dancer straddling a chair and seductively dancing while purring "Hi, sexy . . . ."13 Meanwhile, the target of the advertisement, Arcuri, stared in the dancer's direction while lasciviously and seductively licking his lips.14 The advertisement accused Arcuri of using Oneida County, New York taxpayer dollars to satisfy his sexual desires while on official business by calling an adult fantasy telephone hotline and then charging the call to his hotel room.15 Despite this advertisement, which ran in the days leading up to the election, Arcuri defeated his opponent to win the congressional seat.16
In early 2009, Stormy Daniels, a pornographic movie star, announced preliminary plans to run for the U.S. Senate from Louisiana against incumbent David Vitter, who was involved in a notorious call-girl scandal that rocked Washington, D.C. in 2007. 17 A former nude model recently won election to the U.S. Senate from Massachusetts.18 Photos of the now Senator's nude, yet pixulated, body appeared in many news reports leading up to the election. The possibility of these individuals or their challengers incorporating indecent material in their campaign advertisements is not so far-fetched.
Scholars, the FCC, and the courts have pondered for years how regulators would deal with the issue of indecency in political broadcasting. …