Full question: A 501(c)(3) foundation publishes a travel guide that my newspaper designs and prints. The foundation has prevented some businesses from advertising because of bad business histories. Now a disgruntled former advertiser is threatening a lawsuit because he says he is not being treated equally by being prevented from advertising. Does a private business – non-profit or otherwise – have the right to refuse business to anyone?
A private business is allowed to make its own editorial decisions about what to publish. The First Amendment right to freedom of the press prevents the state from interfering with private editorial decision-making, as was made clear in the Miami Herald Publishing Co. v. Tornillo case, 418 U.S. 241 (1974).
This includes the right to turn away advertisements, as the Supreme Court noted in a decision the previous year when it refused to extend the FCC’s “Fairness Doctrine” to broadcast advertising. (CBS v. Democratic National Committee, 412 U.S. 94, 1973).
Consider recent instances of networks broadcasting the Super Bowl — they regularly turn away ads from political groups such as MoveOn.org or anything else deemed too racy for the public, such as PETA’s regular attempts to grab attention.
Merely by virtue of being a 501(c)(3), not-for-profit organizations do not surrender their First Amendment rights. Just last year, the Supreme Court in the Citizens United v. FEC case upheld free speech rights for 501(c)(4) tax-exempt organizations, striking down campaign finance regulations that limited the ability of the organization to spend money in political campaigns, a kind of speech.
In short, with very few exceptions, publishers have a right under the First Amendment to make editorial decisions without the state, or the courts, interfering with them. This includes the right to choose which advertisements to accept and which to reject. While the contents of advertising can be regulated — consider the Fair Housing Act requirements that advertising not include discriminatory content — it remains in the publisher’s discretion whether to publish an advertisement in the first place.