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One of the noteworthy aspects of this case is that the attacks are not ones that deal with the personal life of the candidate, but instead they are attacks on his voting record. According to the complaint, the ad makes the claim that the Congressman voted to protect his salary in the event of a government shut-down while endangering military pay if the government was temporarily unfunded. The complaint alleges that these claims are false, and that the legislation cited actually held back Congressional pay if the government closed, and that the Congressman always supported funding for the troops, issued a statement to that effect, and voted for legislation that required such funding. We have not seen the Answer to the Complaint, so we do not know the specific response yet from those defending the ad. But in the typical case, the ad's sponsor will be able to show other votes on other legislation that back up its claims. Oftentimes these votes will be on bills with dozens or hundreds of other provisions in them, where a legislator may have good reasons totally unrelated to the issue at hand for taking the position that they did on the bill – but often providing some level of support for the claims made. Because of the many votes on the confusing and complicated legislation that are taken in Congress, it is usually difficult for a candidate to support a lawsuit based on the defamatory nature of claims about a legislative record, as it is so difficult to prove that the claims are in fact false. But we have no way of knowing what support the sponsors of the ad have in this case.

But this case does put stations on notice that there are cases where candidates are willing to follow through on their threats to bring legal actions for political claims that they think are defamatory. Even if the claim is ultimately not successful, it will cause the station to spend the time and incur the cost of defending against the claim. This claim shows that stations really do need to exercise some degree of care in dealing with third-party political ads in these closing days of this election year, and insure that there is some back-up for the sometimes outrageous claims made in non-candidate political ads.

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.

For more in our series on the political broadcasting rules, see our articles on lowest unit rates, equal opportunities, and reasonable access. 

An opinion released several weeks ago by the US Court of Appeals for the First Circuit sheds some light on whether statements made in the context of a third party political ad are defamatory.  The ad at issue there was a negative campaign ad against a candidate for the Maine State Senate.  The ad stated that the candidate, as a town selectman (equivalent to city council) "voted to cancel the $10,000 fireworks celebration for the Fourth of July," while also "[giving] 10,000 taxpayer dollars to a political organization."  The ad then stated that "It's wrong for [the candidate] to give your money to a political organization, and it was wrong for [him] to cancel your 4th of July celebration."

The candidate claimed that the word "wrong" implied that he had committed a crime and that the words "political organization" implied that it was the candidate's own organization, therefore implying that he had stolen town funds for his own organization.  The court disagreed and granted the defendant's motion to dismiss.  Why?

First, the court held that a political candidate is "public" figure.  In order for a statement to be defamatory against a public figure, the statement must be made with "actual malice," which means that it must be made with knowledge of falsity or with "reckless disregard for the truth."  The court held that this standard could not be met here because the word "wrong" does not necessarily mean that the candidate broke the law.  Although the court did not elaborate on this, the word "wrong" is often used to convey the speaker's opinion rather than as a statement of fact.  In other words, in a political ad, one party often believes that what the other party does is "wrong," even though it is neither criminal nor immoral. A statement presented as an opinion generally is not defamatory.

The court also refused to draw the inference that the "political organization" referred to in the ad was the candidate's own organization.  In essence, the entire ad was an opinion that the candidate's use of $10,000 would have been better spent on fireworks rather than on a political organization of any kind, and there is nothing defamatory about that allegation/opinion.

In this particular case, the court also found that the allegations were true, which is an absolute defense to defamation, as noted above.  However, for purposes of ruling on the motion to dismiss, the court viewed the allegations in the most favorable light to the plaintiff (the non-dismissing party) and still found that the statements were not defamatory, even if untrue.

The lesson to be learned is that political speech is subject to strong First Amendment protection.  Most of the negative ads do not need to be taken down, even if you get a cease and desist letter.  You may need to be concerned if the statements made are potentially defamatory, charging that a candidate has committed a crime or an immoral or unethical act.  And you should request substantiation of any potentially defamatory claims made in the ad.  But merely stating that a candidate did something "wrong" does not necessarily imply criminality or unethical behavior.  It may simply be "wrong" in the eyes of the advertiser, and that is a mere opinion.

Of course, if there is any question about the content of a political ad, you should consult with legal counsel.  This is one area where it is better to be safe than sorry.

Most of the cease and desist letters cite a 1961 FCC ruling titled Licensee Responsibility With Respect to the Broadcast of False, Misleading or Deceptive Advertising."  What those letters fail to mention is that this ruling concerned a Federal Trade Commission crackdown on false, misleading or deceptive commercial advertising.  It was unrelated to political advertising.

The cease and desist letter may also cite the 1950 Third Circuit opinion in Felix v. Westinghouse, which held that broadcast stations may be liable for defamation in the absence of a candidate "use."  There was nothing in that opinion hinting at media liability for political ads that are false and misleading but not defamatory.

Indeed, the FCC has actually made the following statement on multiple occasions:  "With respect to allegations of false and misleading statements by political candidates or their supporters, the Commission believes that the public interest will best be served through 'robust, wide-open' debate." citing the US Supreme Court decision in New York Times v. Sullivan.

Of course, the Commission has also been quick to point out that it "would be most concerned if substantial evidence were presented that a licensee had acted in bad faith or deliberately discriminated against a political candidate."

So, what is a broadcaster or cable operator to do with those cease and desist letters?  The best and safest course of action is to provide a copy of the letter to the ad's sponsor and ask for substantiation of the claims made in the ad.  That way, you have fulfilled your obligation to avoid having acted in bad faith or recklessly.

But do you need to pull the ad?  You might, but generally speaking, only if the ad is potentially defamatory.  Defamation is broadly defined as reputational harm, usually resulting from untrue statements alleging crime, fraud, dishonesty or immoral conduct.  Cease and desist letters arguing about a candidate's position on a particular bill or the effect of legislation are generally not alleging anything that would be considered defamatory, even if false.  These ads generally do NOT need to be pulled.  Similarly, cease and desist letters arguing that a political ad contains footage protected by copyright are likely to concern material protected by the law of fair use.

If, on the other hand, an ad alleges that a candidate committed a crime or other immoral act, it may be wise to consider pulling the ad pending receipt of substantiation for the claims made by the third party sponsor.  Truth is an absolute defense to defamation.  Broadcasters and cable operators face potential liability in running potentially defamatory ads, but only for for acting with actual malice or reckless disregard of the truth. 

The bottom line, however, is that most third party political spots do not make claims that are potentially defamatory.  The FCC and the First Amendment strongly support the airing of political viewpoints, even if those viewpoints are potentially false.  For the most part, there is no need to worry about threatening cease and desist letters regarding political ads, but it is always wise to get substantiation and to be more careful with ads that are potentially defamatory.

Most of the other rules governing political broadcasting apply to state candidates as well as Federal candidates.  The requirement that candidate be charged lowest unit rates for the class of advertising time that the candidate purchases in the 60 days before the general election applies with equal force to state and local candidates as it does to Federal candidates.  And equal opportunities requires that a station sell comparable amounts of advertising time to competing candidates, or give free time to one candidate if their opponent appeared on a non-exempt program on the station, also applies to state and local as well as Federal candidates.  Public inspection file obligations - that a station put in its political file information about the amount of political time purchased by a candidate, the class of time sold, the price of the spots, and the schedule that will run - apply to state and local as well as to Federal candidates.

The principal political rule that does not apply to state and local candidates is the "reasonable access" provisions of the rules.  That is to say that stations need not sell time to candidate for all local races.  They can pick and choose in which races they will sell time, or they can restrict candidates for a specific race to buying time in particular dayparts in which the station has more inventory.  But once the decision to sell to candidate for a particular office is made, the other rules mentioned above apply.

More information about the political advertising rules can be found in the Davis Wright Tremaine Political Broadcasting Guide.