We recently wrote about candidate ads, and the "no censorship" provision of Section 315 of the Communications Act. Broadcasters can’t censor a "use" by a political candidate (a candidate ad that features his or her recognizable voice or image), and thus the broadcaster is not liable for the content of a candidate’s ad. So no matter what the candidate may say – the broadcaster runs the ad as is. Ads from third parties (PACs, SuperPACs, labor unions, right to life groups and other advocacy organizations) are, however, different. The “no censorship” provisions of the political rules don’t apply, so broadcasters are free to accept or reject third party ads based on the content of the ads. Even though broadcasters can reject political ads that come from third-party groups, they rarely do, and we seemingly see just as many outrageous claims about candidates in third party ads as we see in the candidate ads that can’t be censored. Why don’t broadcasters more aggressively decide which ads are truthful and which are not, and reject those ads that are not accurate?
A recent article in the Tampa Bay Times asks that question, citing a political ad running on a television station which had, in a news segment, determined that the contents of the ad were not true. Why was the ad still running on that very station? I spoke to the author, and was quoted as saying that broadcasters don’t want to act as “gatekeepers.” In more detail, I said that broadcasters don’t want to be in the position of being the arbiter of what ads are "truthful enough" to run and which ones should be rejected. In the political world, the concept of “truth” is often in the eyes of the beholder. Whether a candidate a “big-spending liberal” or not is not a claim that cannot be factually evaluated. Even in cases where the import of specific legislation is involved, or questions of what a piece of legislation accomplishes or the purposes underlying its adoption can be seen by different people in the political world from very different perspectives, making determinations about “truth” very difficult. In the eyes of some, a legislative act may be motivated by a desire to respond to constituent desires, but in the eyes of others that same act may be motivated by caving in to special interests or as part of some vast conspiracy to undermine the American way. In most cases, broadcasters are reluctant to draw lines as to when an ad is truthful enough to run on the air and when it is not – instead leaving the debate over the "truth" to the marketplace of ideas. If someone thinks that an ad is untrue, they can buy their own ad and spell out their position on the issue. (See this article from the Denver Post complementing TV stations on fact-checking and making their results available for the public to check on the veracity of political ads). But does that station need to worry about liability for the third-party ad?
This question arises all the time. A station runs a third-party ad, and the politician who is being attacked by the ad will contact the station – demanding that the station pull the ad for its alleged untruthfulness. Sometimes that request for the removal of the ad comes from an attorney with some vague (or sometimes not so vague) threat of a legal action against the station if it continues to run the ad. Unlike candidate ads (where the station cannot censor the ad and thus the station must reject all requests to pull a candidate ad, and can continue to run the ad without liability), the station makes a choice when it runs a third-party ad. Ads that are not run by the candidate’s official campaign committee (or by a political party with explicit authority and coordinated with the candidate), can be rejected based on their content – or for any other reason that the station may have – or for no reason at all (subject, potentially, to the Zapple doctrine about which we wrote here, which might require that some ads from supporters of an opposing candidate be run, though not necessarily any specific ad).
Because stations make a decision as to whether or not they are going to run a third-party ad, they theoretically have liability if the ad is untrue and the station continues to run the ad when it has been challenged by a candidate or another party attacked in the ad. As stations have potential liability for the content of these third-party ads, why aren’t more of these ads pulled from the airwaves when complaints arrive about their truthfulness? For the same reason cited above – it is very difficult to determine when a political claim is untrue, and only verifiably untrue ads are likely to lead to station liability.
In most cases, the risk of liability for a station running a political ad is relatively low. The most likely source of liability is for some sort of defamation contained in an ad. But candidates for office are “public figures” under the NY Times v. Sullivan standard, the standard set by a Supreme Court decision finding that a public figure must meet a much higher standard of proof to justify any claim. For there to be liability, not only must a plaintiff show that the statement that he or she is complaining about is untrue, but also that the station ran the ad either knowing that it was untrue or that the station otherwise acted with “malice” – e.g. they should have known that the statements made in the ad were untrue. In most cases, a station will only have reason to believe a political ad is untrue if they were put on notice of the untruth, and they will face liability only if they continued to run the ad once they knew or should have known that it was untrue and legally damaging to the person being attacked. For there to be any sort of liability, the false claims made in the ad must be factual, not opinion. In most cases, minor inaccuracies in a statement will not lead to liability if the gist of the statement is accurate.
Most routine campaign claims are unlikely to lead to liability – unless they make specific claims about the character or integrity of the candidate. If a candidate is accused of some sort of personal indiscretion, a crime or specific instances of dishonesty, the station needs to be especially careful running the ad without some demonstration that the ad is true. This kind of allegation is the type that can, if false, lead to liability. But for most of the typical campaign claims about what a candidate’s election will mean for the public in the future, or some interpretation of what his or her voting record means, liability is very difficult to prove. Nevertheless, the station should ask for substantiation of any claim made in a third-party ad either when the station believes it to be untrue or when it receives a claim that statements in the ad are untrue.
Once the information supporting the ad is provided, the station must evaluate whether there is any basis for the claim. The station needs to determine whether the ad is demonstrably untrue. What is then done with the ad may call for a nuanced determination as to whether there is any real likelihood of liability, or whether the station simply is uncomfortable with the ad as prepared. In some cases, the station may just not like the ad – and it is justified in pulling the ad for those reasons alone (see, for instance, when one station in Iowa decided to refuse to run the Colbert SuperPAC ads). Other stations may have more tolerance for risk. On close questions, where there are statements that seem to be false, and where they attack a candidate for some personal characteristics, it’s probably time to call counsel to see whether or not you should pull the ad. While liability for a broadcast station for the content of a third-party political ad is not common, it is also not unheard of – so stations need to approach this area with care.