According to Politico, Ted Cruz’ campaign has demanded that TV stations pull certain PAC ads which he claims distort his voting record on immigration issues. This kind of claim from a political candidate about the unfairness of attack ads is common. Here, Cruz’ representatives apparently don’t threaten lawsuits against the stations for running the ads, but suggest that it is a violation of the stations’ FCC obligations to operate in the public interest to continue to run the ads. What is a station to do when such a claim is received?
We have written many times about this issue. Much depends on who is sponsoring the attack ad. If the ad is sponsored by the authorized campaign committee of another candidate, and features the voice or image of the sponsoring candidate, the station cannot do anything. As we wrote in detail here, a station cannot censor a candidate ad. Once it has agreed to sell time to a political candidate or his or her authorized campaign committee, the station must run the ad as delivered by the candidate without edit (with the very limited exception of being able to add a sponsorship identification if one is missing, or when running the ad would constitute a felony, e.g. running a spot that is legally obscene – not just indecent but obscene, meaning that it has no redeeming social significance). Because the station is required to run the ad as delivered by the candidate, the station has no liability for the content of the ad. So, if the candidate being attacked complains, the station can do nothing to edit, censor or pull the attacking candidate’s ad without violating the “no censorship” provisions of Section 315 of the Communications Act. The candidate being attacked has a remedy against the ad’s sponsor, not against the station. Third party ads, however, are different.Because only candidate ads are covered by the no censorship provision of the Act, ads by third party groups – PACs, labor unions, advocacy groups, political parties (with the limited exception of when the party ad is actually authorized by the candidate), etc. – can be censored based on their content. If stations don’t like the content, or think that the content violates someone else’s legal rights, the station can refuse to run the ad, or demand changes in its content. Because the station can censor a third-party ad, the station can be held liable for its content.
Thus, as we wrote in more detail in our article here, once a station is put on notice of the potential falsity of the third-party ad, the station has a duty to investigate its truth. This is usually done by asking the sponsor for material to back up its claims. Depending on the kind of attack, stations may want to consider pulling the ads while this investigation is ongoing. Attacks on the candidate’s character and integrity (e.g. accusing the candidate of lying, criminal violations or other immoral acts) are most likely to be actionable. Claims that are just broad, general political claims (e.g. he’s a closet liberal, he doesn’t care about education, etc.) are less likely to result in any liability. But when these claims come in, that is a good time for stations to get legal counsel involved to help evaluate where on the spectrum the particular ad falls, and what the potential is for liability for continuing to run the ad.
Note that the questions about the truth or falsity of political ads are not ones that will be decided by the FCC. The FCC is not going to get involved in the business of evaluating which political ads are true and which are false. Instead, these issues are most likely to be litigated, if at all, in the courtroom. We’ve seen defamation-based claims (e.g. libel and slander) threatened based on the content of political ads. We’ve also seen other kinds of claims, like allegations of copyright violations, made about these ads. But in all cases, the analysis is the same – if it is a candidate ad, the station can do nothing. If it is a third-party ad, then the station needs to investigate the claim.