The Supreme Court Decision in Citizens United v. Federal Election Commission, freeing corporations to use their corporate funds to take explicit positions on political campaigns, has been mostly analyzed by broadcast trade publications as a good thing – creating one more class of potential buyers for broadcaster’s advertising time during the political season – which seems to almost be nonstop in these days of intense partisan battles in Washington and in the statehouses throughout the country. What has not been addressed are the potential legal issues that this "third party" money may pose for broadcasters during the course of political campaigns. Not only will an influx of money from non-candidate groups require that broadcasters review the contents of more commercials to determine if the claims that they make are true, but it may also give rise to the return of the Zapple doctrine, one of the few remnants of the Fairness Doctrine never specifically repudiated by the FCC, but one which has not been actually applied in over a quarter of a century. Public file obligations triggered by these ads also can not be overlooked.
First, the need for broadcasters to vet the truth of allegations made in political ads sponsored by non-candidate advertisers. As we have written before(see our post here), the political broadcasting rules enforced by the FCC allow broadcasters to run ads sponsored by the candidates themselves without fear of any liability for the claims made in those ads. In fact, the Communications Act forbids a station from censoring a candidate ad. Because the station cannot censor the candidate ad (except in the exceptionally rare situation where the airing of the ad might violate a Federal felony statute), the broadcaster has no liability for the contents of the ad. So candidates can say whatever they want about each other – they can even lie through their teeth – and the broadcaster need not fear any liability for defamation based on the contents of those ads. This is not so for ads run by third parties – like PACs, Right to Life groups, labor unions, unincorporated associations like MoveOn.org and, after the Citizens United case, corporations.
Stations are not required to accept third party ads and, even where these ads address a candidate, the station has full rights to accept or reject the ads based on the ad’s content (perhaps subject to Zapple discussed below). However, because the station can choose whether or not to run the ad, the station can also be held liable for the content of those ads. While the standard for liability under the rules of defamation are very high for public figures such as a political candidate, there still can be liability if the station runs an ad with "malice", meaning that they either know that the content of the ad is false, or run it with reckless disregard of the truth of the claims made (where those claims later prove to be false). That malice standard is what forces stations to become political researchers – tasked with determining if there is a reasonable basis for a claim made in an ad so that the candidate being attacked cannot later come back against the station and accuse the station of recklessly running a false ad. We’ve written before (here and here) about the typical scenario that arises – a third party group buys an attack ad against a political candidate, the candidate or his or her lawyer sends the station a letter saying that claims made in the attack ad are false and the station will be liable if the station continues to run the ad. At that point, the station has an obligation to investigate the truth of the statements made in the ad. If the station just continues to run the ad with no investigation, and the ad proves to be false and the candidate that is attacked can prove injury, the station can be held liable. How much investigation is necessary? That is a question that cannot be answered in a few paragraphs on this blog. But suffice it to say that stations need to be prepared to call their attorneys and discuss the issue with their owners in making these assessments – as each station may have a different tolerance for risk, and a different willingness to allow questionable third party ads to run.
The other potential issue that this decision may bring to the fore is the status of the Zapple Doctrine. Section 315 of the Communications Act imposes the Equal Opportunities doctrine (otherwise known as "Equal Time") on stations, which the FCC has interpreted to mean that stations need to treat all candidates running for the same office in the same way – allowing them to buy equal amounts of advertising time on a station, and giving them equal amounts of free time on a station if the candidate appears outside of an exempt program (e.g. news or news interview programs, or on-the-spot coverage of a news event, including most debates). But the Equal Opportunities Doctrine applies only to candidates and their appearances on stations (or "uses", in the language of the FCC). What about the purchase of time by third party groups, which are technically not subject to the Equal Time rule? Well, more than 30 years ago, the FCC adopted the Zapple Doctrine, or "quasi-equal opportunities" as an outgrowth of the Fairness Doctrine. The Zapple case, as we wrote here and here, held that where supporters of a candidate are allowed to buy time on a station, supporters of the opposing candidate should also be allowed to buy roughly equivalent amounts of time. While the remainder of the Fairness Doctrine has been declared by the FCC or by the Courts to be unconstitutional over the last 25 years, Zapple has never been officially overturned. When the Swift Boat documentary was about to be run on some television stations during the Kerry-Bush campaign, the Kerry campaign invoked Zapple in claiming that all stations that ran that documentary would need to air equal amounts of time from pro-Kerry groups. While that matter was settled before the FCC ruled, some FCC officials have from time to time implied that they would have invoked Zapple had it gone to a decision. With an influx of corporate money into political campaigns, Zapple issues are more likely to find their way to the FCC in coming elections.
Finally, the Citizens United case did not upset the record-keeping and disclosure requirements of the Bipartisan Campaign Reform Act ("BCRA"). BCRA imposed many such obligations on broadcasters. Thus, the sale of time to corporate groups, just like the sale of time to any other third-party group, requires a full public file disclose when such purchases are made to address a Federal issue or election. We wrote about those obligations here and here. Essentially, all the same information about the purchase that would be kept for a candidate buy must be kept for a third-party buy – including the class of spots purchased, the schedule run, the price paid, and the identity of the purchaser. Even advertising buys dealing with state and local elections require an identification of the buyer and its principal officers or directors.
Thus, while more money may flow into broadcast stations as a result of the Citizens United decision, that money may come with some additional headaches for broadcasters. All of these issues and more are addressed in the Davis Wright Tremaine Political Broadcasting Guide, available here.