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Election Ad Loophole Forces TV Stations to Air Anti-Abortion Porn

A "candidate" for election to Washington D.C.'s shadow congressional seat is forcing Beltway TV stations to air a horrifying anti-abortion commercial featuring photos of dead, late-term fetuses. And it's all Hustler magazine founder Larry Flynt's fault. Here's why.

Missy Smith is clearly not a serious candidate to represent the district in Congress. Rather, she's a fellow traveler of Randall Terry, the anti-abortion extremist, who has found a cheap way to get some truly disgusting images onto daytime and primetime TV, where they will give children nightmares. (A video of the commercial is below, but be warned: most of the ad consists of graphic images of blood-drenched fetus corpses even though 88 percent of abortions occur in the first trimester.)

The TV stations are powerless to stop Smith because of a 1996 federal appeals court decision that prevents any censorship of election ads. In that case, a different anti-abortion activist, Daniel Becker, also tried to use a faux election campaign to air images of fetuses. The court found that federal election law gives all candidates "reasonable access" to broadcast media, and that media providers must not censor election candidates who wish to broadcast ads.

This interesting quirk in First Amendment law was discovered by Flynt when he ran against Ronald Reagan in the 1984 New Hampshire primary for the Republican nomination. (He wore a T-shirt that said "Jesus Is an Anarchist" and promised to remove "the massive, oppressive hand of government from the crotch of the American people" in what is still one of the funniest election ads ever made.) As part of his campaign he threatened to run pornography in his ads:

In a letter to Ohio Representative Thomas Luken, who had asked the FCC to advise broadcasters the appropriate response to Flynt, FCC Chairman Mark Fowler wrote, "The no censorship prohibition in Section 315 was intended to override the statutory prohibition against the broadcast of obscene or indecent materials that is etched in Section 1464 of the Criminal Code" (cited in Gillett Communications v. Becker, 1992).(13)
The U.S. Supreme Court recently struck down the FCC's "decency" regulations, freeing the airwaves for uncensored material, so it's unlikely that Becker will be overturned soon.

That doesn't excuse what Smith is doing. She's merely riding Flynt's coattails with a type of pornography that's about 1,000 times more unnecessary than anything that ever appeared in Hustler.


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