As we enter the waning days of this election season, where some candidates get more desperate and the attack ads get sharper, broadcasters are often faced with requests that they pull an ad created by a candidate. Claims are made that the ad contains untrue claims about an opponent or that the ad contains copyrighted material used without permission. What is a station to do? When the ad is an ad purchased by a candidate or their authorized committee, and contains a "use" by the purchasing candidate (a use being a spot where the purchasing candidate’s voice or likeliness appears on the spot) the broadcaster is forbidden from censoring that ad. Essentially, that means that the candidate can say just about anything in their ad (as long as it does not violate a Federal felony statute), and the FCC’s rules prohibit the broadcaster from refusing to air the ad based on its content. But, because the station cannot censor the ad, it has no liability for the contents of that ad. This is in contrast to ads by third parties (e.g. advocacy groups, unions, political parties and others not specifically authorized by the candidate), where the broadcaster theoretically has liability for the content of a political ad (see our post on that subject, here).
Two recent cases illustrate the issue. In one, according to press reports, in a race for the sole seat in the House of Representatives representing the state of North Dakota, one candidate has claimed that the ads of the other misrepresent the positions of that candidate. The candidate being attacked has asked that the spots be pulled from the air, while the candidate running the spots has refused to pull them. Even if requested by the candidate being attacked, and even if the ad is in fact false, broadcasters cannot pull one candidate’s ad if that candidate wants to continue to run it.
In another story about a race in New York, one candidate has argued that the spot of another violates copyright law by using recorded material created by another without permission. While the candidate who created the ad argues that he had a right to use the clip under the "Fair Use" doctrine, even if he did not, a station could not pull the ad, and would not be liable for any copyright liability that might attach. Note that the answer might be different if the ad was posted on the station’s website (where the no censorship rules does not apply), or if the ad was sponsored by a third party group rather than the candidate himself.
This is not to say that the candidate being defamed, or the copyright holder whose material is being improperly appropriated, has no remedy for an objectionable candidate ad. But that remedy is against the candidate sponsoring the ad, not against the station that broadcasts it. While suits against a candidate or that candidate’s campaign committee are rare, they are theoretically possible.
One last note, these rules apply to both Federal and state and local candidates. While broadcast stations have no "reasonable access" obligation to sell time to state candidates, once they do, the no censorship rule applies. More information on this subject and on other political broadcasting issues can be found in Davis Wright Tremaine’s Political Broadcasting Guide.