On May 27, 2010, David Oxenford spoke to the Vermont Association of Broadcasters annual meeting in Montpelier, updating the broadcasters on Washington events of importance, and discussing the FCC’s political broadcasting rules. A copy of Dave’s PowerPoint on issues of importance to broadcasters will be posted here soon. Broadcasters may want to refer to Davis Wright Tremaine’s Political Broadcasting Guide for a discussion of the political broadcasting issues that may arise in this election season. One of the political broadcasting issues that was discussed in detail was the issue of what a station should do when faced with a political ad that comes from a third party, attacking a political candidate, and the candidate tells the station that the ad is untrue and, if it continues to run on the air, it may subject the station to liability.
This issue may be coming up more in the coming months. The recent Citizens United case signals the potential for more campaign spending by corporations and labor unions. This money would be spent directly by these organizations, not contributed to the candidates, as the case did not loosen the limits on corporate contributions directly to candidate’s campaign committees. Thus, as the ads will not come from candidates, they will not be subject to the “no censorship” rule that applies only to candidate ads. Because the no censorship rules prevent a broadcast station from rejecting a candidate’s ad based on its content, stations are protected from any liability for the content of those candidate ads. In contrast, broadcasters are free to reject ads from corporations, labor unions, or other non-candidate groups. Because they can choose whether or not to accept such ads, they can technically be held liable for the contents of those ads, should the ad be defamatory or otherwise contain legally actionable material. This should not be new to broadcasters as, even before Citizens United, stations were often faced with complaints from candidates about ads from third party interest groups (like the political parties’ campaign committees, or so-called 527 groups like MoveOn.org) that were permitted to advertise even before the recent decision. Most broadcasters want to be able to accept these advocacy ads from non-candidate groups, but they also want to avoid potential liability. What is a station to do when it receives such an ad, or when an ad is already running and a candidate complains about its contents?
While there is no easy answer, and a broadcaster should always consult with their lawyer when one of these issues arises, the broadcaster can rely on the standard for judging potential liability in most cases is that used in a defamation case. This standard, set out by the US Supreme Court, requires a finding of “malice” before a party can be found to be liable for transmitting information about a “public figure,” which would include a political candidate. For liability to be found, the malice standard requires that the broadcaster ran the ad either knowing it to be false or with reckless disregard of its truth. Thus, if a broadcaster has actual knowledge that a claim made in an ad is false, or has a substantial reason to doubt its truthfulness, yet nevertheless runs the ad and it does in fact prove to be false, there is the potential for liability. But if the ad is the typical campaign rhetoric – that Candidate A votes for big government, or votes for spending bills that waste taxpayer’s money, or that he has not done enough for education – there is no reason for the station to be on notice that there is anything wrong with such a spot, and running it in the first instance is not likely to be a concern.
What we have seen in many recent campaigns, however, is that candidates or their representatives object to such ads once they start running, and demand that a station cease running the ad and threaten to sue if no action is taken. Once one of these letters challenging an ad arrives, if the ad in indeed false, the letter could be seen as putting the station on notice of the potential untruth of the ad. Thus, the receipt of the letter heightens the station’s duty to investigate to determine if the spot may in fact present some basis for liability. In many cases, the ad’s sponsor will have ready substantiation that the station can review. If, after investigation, the claims appear to have a reasonable basis, it’s unlikely that the broadcaster will get into trouble for airing those ads. But if the ads are baseless, the broadcaster needs to beware.
Should the broadcaster pull the ad while it investigates? That involves the broadcaster and its counsel in some risk assessment. The risk often depends on the nature of the ad and the kind of claims that it makes. If the ad is making those typical political claims that are subject to interpretation (“Candidate X is a big spending liberal ”or “candidate Y favors policies that will lessen your freedom”), it is less likely that a court would find these to be actionable claims – particularly where the claims cannot really be proved false. By contrast, if there are claims that directly address the character or integrity of the candidate (e.g. “he was having an affair with a city employee while in office” or “he used taxpayer funds for his own private use”), then, if these claims are proved false, there is much more risk for the station. These kinds of ads should be approached more cautiously.
There is no easy way to just say take the money and run. While there have only been a handful of cases where a station has been sued for the content of a third-party ad, and even fewer where they have had to pay any damages, the threat is always there. Thus, in dealing with these issues, stations need to be careful, and need to vet the ads with their attorneys. But most ads probably will be able to be run. So proceed – but proceed with care.
And remember, these cautions apply only to ads by third party groups. If the ad is by a candidate’s authorized campaign committee, the station cannot censor the ad, and it cannot be held liable for its contents. So if you get a letter from an opposing candidate challenging the content of the ad by a candidate, you can’t censor the ad, and should not be pulling it for investigation or because of concerns about the truth of the ads. So be careful about the contents of third party ads, but rest easy when a candidate ad is running.