How can political attack ads get away with taking out-of-context statements of the candidates that they are attacking, and twisting these statements to convey meanings that were never intended by the candidate who first uttered the words? And how can political ads take a single line of an incredibly complex piece of legislation and use that legislation to allege that a candidate has violated some core belief that the candidate espouses on the campaign trail? Do stations have liability for these attack ads, and must they react when the candidate being attacked asks that the ad be pulled? In the fourth of our series of political broadcasting refreshers (following those on lowest unit rates, equal opportunities, and reasonable access), we’ll address the question of the no censorship provision of the rules and what rights stations have to deal with the content of political ads.
Starting with the basics, the FCC rules (stemming from Section 315 of the Communications Act) prohibit broadcasters from censoring the content of advertising that is a “use” by a candidate. Essentially, that means that the broadcaster cannot reject an ad that is sponsored by the candidate or the candidate’s official campaign committee, if that ad has the recognizable voice or image of the candidate somewhere in the course of the ad. No matter how outrageous the statement of the candidate may be, the station cannot refuse to run the ad (with the limited instance of ads that are legally obscene or which otherwise may violate some Federal felony statute). So, even if an ad by a candidate may be totally untrue in claims made about the candidate’s opponent, or even if it could give rise to other civil liability (for instance if it is defamatory or a copyright violation), the station cannot refuse to run the ad.
Stations are often the recipients of letters from the candidate being attacked asking that the ad be taken down, and threatening legal action if the ad is not removed from the airwaves. Stations cannot by law take down these ads based on their content, and thus have to refuse these requests. But stations don’t need to fear legal liability for running such ads, as the Supreme Court has held that, as the station cannot refuse the ad, it has no liability for the content of the ad. So candidates who are defamed by their opponents ads, or a copyright holder whose intellectual property is used by a candidate without permission, cannot sustain a suit against the station. Instead, their action is against the candidate who produced the ad. See our articles here and here for more on this topic. This is much different than the situation where such claims arise in the ads of third parties (PACs, SuperPACs, Labor Unions, religious organizations or most political party advertising not specifically coordinated with the candidate). We’ll write about those ads later this week.
The no censorship provision can put the station into uncomfortable positions, having to run ads that may have messages that the station does not endorse, and sometime running ads that the majority of its listeners find offensive. From time to time, we have seen candidates run for Federal office so that they can reasonable access to airtime on a station, effectively compelling stations to run at least some of their ads, then conveying a hateful or disturbing message. We’ve seen it by candidates espousing racist messages, or those who air graphic anti-abortion ads in times where children may be watching (such ads not being legally obscene). As we have written before, in this crazy world of political broadcasting, station have to run such ads, though they can air a disclaimer prior to the ad that the ad is a paid political message that the station has an obligation to run unedited, and that it does not reflect the views of the station, and some may find it offensive. In doing so, stations probably should run that same disclaimer on milder ads of the candidates competing with the candidate who runs the offensive spot, just to avoid equal opportunities issues.
No censorship applies to state and local candidates as well as Federal candidates. As we wrote the week before last, reasonable access does not apply to state and local candidates. Stations do not need to sell time to candidates in any of these local races. But once a station does, it needs to apply the no censorship provision to all candidates in the race, just as equal opportunities and lowest unit rates apply to all candidates whose spots are accepted by a station.
Our next article will deal with the ads of third parties and how the “no censorship” provision does not apply to them. Thus, stations need to proceed more carefully when the content of these third-party ads is challenged.