By: David Oxenford, Wilkinson Barker Knauer LLP
As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty. We provided an overview of what a station should do when it gets an attack ad two years ago, and the ads have not become kinder in the intervening period, so we will publish it again (with a few revisions). With the rise in the number of attack ads in this last week before the election, stations are facing more and more demands from candidates who are being attacked, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality. What do stations do when confronted with these claims?
We have written about this issue several times before (see, for instance, our articles here and here). In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee. If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content. Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here). Because the station cannot pull the ad based on its content, the station has no liability if the candidate’s attack ad defames their opponent. In fact, we have heard of cases where a non-candidate group runs an attack ad containing claims that the target of the ad claims are untrue, where stations pull the ad, and where the claims soon reappear in the ads of the candidate who the third-party supported. When they objectionable claims are in a candidate’s own ads, the only remedy of the candidate that is being attacked is to sue the candidate who ran the ad. But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups?
Stations must take seriously any claim that a political ad that they are running is false, particularly where there is legal action threatened if the ad is not pulled from the airwaves. The Communications Act’s “no censorship rule” does not apply to third-party ads, only to candidate ads. Thus stations can pull a third-party ad because of its content. While stations need not fact- check every ad they receive, if an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station. Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with “negligence,” e.g., where they had notice that the ads were false, yet they continued to distribute the false material anyway. Thus, if a station does not know that a claim in a third-party ad is false, but it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked), the station needs to take steps to investigate the truth of the ad.
If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability to the station. Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable. There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. Typical political claims (e.g. “candidate X is a big-spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases 12 times”) are less likely to be actionable than are claims about the character, integrity and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).
The FCC itself is not a fact checker of claims made in political ads. Many times letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest. Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, which deals with deceptive ads. But even the FTC is not routinely involved with the political advertising process, given that the involvement of any government agency is assessing the truth or falsity of any political ad is so fraught with First Amendment issues. Generally, we don’t want a government agency deciding what is true in political ads and what is not. Thus, these questions are left to private actions for defamation.
While defamation actions against broadcasters for not pulling an attack ad are not common, there have been a few broadcast stations sued. These are stations that kept running an allegedly false political ad which they had been told was false. You don’t necessarily want to go to the time and expense involved in any such litigation, so assess these claims with your attorney once they come in. Many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election than to advance real legal claims, but you need to carefully review all the demands to make sure that the ones that you receive don’t have merit. Consult your attorney, as these are sometimes not easy calls to make.
For more on various political broadcasting issues, see our Political Broadcasting Guide, here.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.