On the April 24 edition of MSNBC Live, while airing video of a new ad that attacks Sen. Barack Obama, anchor Contessa Brewer said, “Well, here's the catch: [Floyd] Brown [the ad's creator] does not have a single ad buy in any TV market. Instead of paying for airtime, he just announces this in a press release for outlets like YouTube to pick up.” Brewer then asked guest Craig Gordon, Newsday Washington bureau chief, "[I]s this a new way to get your ad covered without buying any time?" Brewer did not note the irony of her and MSNBC's giving the ad free airtime while reporting that the producer was hoping for free airtime, although Gordon made the point, saying: "[W]e're talking about it here today, so he probably accomplished what he hoped to accomplish." Earlier the same day on MSNBC Live, anchor Chris Jansing aired both audio and video of the advertisement, noting that "[t]he ad is only on YouTube, not running in any TV market."

Responding to Brewer's question, Gordon pointed out the very strategy being employed by the ad's producer: “It's actually one of the oldest tricks in politics, where you -- even sort of respectable campaigns will do this sometime -- where they'll announce an ad, they'll show the reporters, they will be very vague about how much money they're going to spend putting it on the air, we all write about it, you put it on your TV networks, and they've -- voilà -- they've got their ad out there. So it's actually kind of an old trick that folks use sometime. Obviously, it's a pretty controversial topic for an ad, and we're talking about it here today, so he probably accomplished what he hoped to accomplish.” As Gordon spoke, MSNBC again aired video of the ad.

The advertisement was created by a group of conservative activists led by Brown, creator of the infamous Willie Horton ad, and attacks Obama over a 2001 vote he cast in the Illinois Senate in opposition to H.B. 1812, which would have, among other things, made defendants eligible for the death penalty for committing a murder in furtherance of the activities of an organized gang. The ad concludes by asking about Obama, “Can a man so weak in the war on gangs be trusted in the war on terror?” Reporting on the ad, Brewer stated: “A conservative third-party group led by infamous ad man Floyd Brown claims Senator Obama is weak on street gangs and will be just as easy with terrorists.” But in highlighting Brown's attack ad and giving it free airtime, MSNBC failed both times to include the Obama campaign's response to the ad, including his rebuttal of the ad's claim regarding his legislative record addressing gang violence. Nor did MSNBC note the reasons that Obama gave at the time for his vote against H.B. 1812.

In a statement responding to the ad, the Obama campaign said: “Floyd Brown and the garbage he puts on TV represent everything the American people hate about politics, and we look forward to John McCain denouncing this shameful effort to boost his candidacy using Willie Horton ads.”

During the 2001 debate on H.B. 1812 in the Illinois Senate, Obama said that making “gang activity” a new eligibility factor for the death penalty could be used as “a mechanism to target particular neighborhoods, particular individuals” and stated that the death penalty should be applied in a way that is “absolutely uniform across the board.” Then-Gov. George H. Ryan, a Republican, vetoed the legislation, stating that it “was misdirected in light of existing laws, constitutional concerns and our past history of erroneously sentencing individuals to death.”

Obama stated on the floor of the Illinois Senate on May 15, 2001:

What I'm concerned about is for us to single out, quote, unquote, “gang activity” as a -- as a standard that is different from activity involving other kinds of criminal conduct.

[...]

[W]hat I'm concerned about is that we use this term “gang activity” as a mechanism to target particular neighborhoods, particular individuals for, admittedly, heinous crimes that I think should be punished to the fullest extent of the law irrespective of where they happen and irrespective of the particular criminal body that they are working with.

Obama later said:

What I am concerned about is a particular and narrow concern, and that is, is that when we apply the ultimate penalty -- that's the death penalty -- that we make sure we are applying it in a uniform fashion across the board, that there's no -- no intimation, at any point, that one person who commits a terrible crime is going to get one treatment and another person who gets -- commits that same crime is going to get a less severe treatment.

[...]

I think that if we're going to apply the death penalty, we better make sure it's absolutely uniform across the board. That's the particular concern I've raised, and I want to make sure that it's in the record that my -- my objections are not to us trying to deal with the street gang problem on -- that -- that exists in Chicago and elsewhere -- in the State.

Additionally, an October 25, 2001, Chicago Tribune article reported:

But opponents say they fear the bill is still too broad and will result in an uneven application of punishment, depending on defendants' race and where they live.

“If a white youth in the suburbs commits a crime, you want the black youths in the housing projects to receive the same punishment for the same crime,” said state Sen. Barack Obama, (D-Chicago).

The Tribune similarly reported on August 18, 2001:

But critics join Ryan in worrying that the measure is vague and that it may exacerbate the effect of capital punishment on racial and ethnic minorities.

“There's a strong overlap between gang affiliation and young men of color,” said Sen. Barack Obama (D-Chicago). “I think it's problematic for them to be singled out as more likely to receive the death penalty for carrying out certain acts than are others who do the same thing.”

Further, MSNBC did not note that Ryan vetoed the bill and that at the time, he asserted: “In fact, most gang-related murders would qualify for the imposition of the death penalty under existing eligibility factors in our death penalty statute.” In his explanation for vetoing H.B. 1812, Ryan wrote:

While House Bill 1812 represents a well-meaning effort to address serious gang activity that results in a murder, I believe its efforts are misdirected in light of existing laws, constitutional concerns and our past history of erroneously sentencing individuals to death.

First, it is essential to recognize that most serious gang activity that results in murder is already covered by our existing death penalty statue. For example, a gang member committing murder while attempting or committing another serious felony offense is eligible for the death penalty.

[...]

The addition of a blanket eligibility factor making someone eligible for the death penalty based merely on gang membership duplicates existing statutes, sweeps more broadly than is necessary and raises constitutional concerns.

[...]

Furthermore, significant opposition to this legislation developed in the General Assembly because of the clear disparate impact this bill will have on minorities. Today, nearly 70% of those on death row are racial or ethnic minorities. Such disproportionate numbers have already raised due process and equal protection challenges to our existing capital punishment system. Moreover, as we continue to almost annually add eligibility factors to our death penalty statute, we introduce more arbitrariness and discretion and edge ever closer to our previous capital punishment system that was effectively held unconstitutional by the United States Supreme Court in 1972.

From the 11 a.m. ET hour of MSNBC Live on April 24:

BREWER: MSNBC is the place for politics. And conservative Republicans are on the attack. This time they have Barack Obama in the crosshairs. And it's gettin' dirty. A conservative third-party group led by infamous ad man Floyd Brown claims Senator Obama is weak on street gangs and will be just as easy with terrorists.

Well, here's the catch: Brown does not have a single ad buy in any TV market. Instead of paying for airtime, he just announces this in a press release for outlets like YouTube to pick up.

Let's bring in our journalist panel on this one. We have Jonathan Allen with CQPolitics.com. Craig Gordon, who's the Washington bureau chief for Newsday. OK, so, Craig, is this a new way to get your ad covered without buying any time?

GORDON: It's actually one of the oldest tricks in politics, where you -- even sort of respectable campaigns will do this sometime -- where they'll announce an ad, they'll show the reporters, they will be very vague about how much money they're going to spend putting it on the air, we all write about it, you put it on your TV networks, and they've -- voilà -- they've got their ad out there. So it's actually kind of an old trick that folks use sometime. Obviously, it's a pretty controversial topic for an ad, and we're talking about it here today, so he probably accomplished what he hoped to accomplish.

From the 9 a.m. ET hour of MSNBC Live on April 24:

JANSING: Conservative Republicans are attacking Barack Obama. A new ad turning heads today. It claims the Illinois senator is weak on gang violence. The ad is only on YouTube, not running in any TV market. Here's a clip.

NARRATOR [video clip]: A Chicago state senator named Barack Obama voted against expanding the death penalty for gang-related murders. When the time came to get tough, Obama chose to be weak. So the question is: Can a man so weak in the war on gangs be trusted in the war on terror?

JANSING: The Republican behind this ad is Floyd Brown. He is the conservative ad man who created the infamous Willie Horton ads back in 1988. Those ads also played to racial fears by portraying then-candidate Michael Dukakis as soft on crime. Let's bring in Mike Duncan, who is chairman of the Republican National Committee. Thanks very much for joining us. What do you think of this ad?