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Ads by political candidates, as covered in our Political Broadcasting Guide, are the one exception to this general rule that stations have discretion about what ads they run.  Stations must give Federal candidates "reasonable access" to their airwaves to buy advertising time in all classes and dayparts offered by the station, and candidates must also be given "equal opportunities" to buy time to respond to uses of the airwaves by competing candidates.  Third party groups - those not officially connected with a political candidate - are not subject to the mandatory carriage rules (except to the limited extent that the Zapple doctrine, if it still exists, might apply to require the running of ads by supporters of a candidate to respond to ads by supporters of other candidates).  In fact, third party ads put more responsibility on stations to review the content of these ads as they are theoretically liable for the content of third party ads (see our articles here and here).  So WOI was perfectly within its rights to reject an ad by the Colbert Super PAC - no doubt a disappointment to the Colbert fans in Iowa who wanted a first look at the commercial, but legally an appropriate action nevertheless. 

As we blogged last year, the Supreme Court found that the prohibition on such corporate expenditures violated the First Amendment right of speech belonging to corporations and unions.  This decision was followed by a firestorm of critical comments, including those of President Obama in last year's State of the Union address.  The fear among many was that the money of big corporations would overwhelm the political messages of others who are less able to afford advertising time and that those corporations would therefore have a disproportional voice in future elections.

The editorial in today's Washington Post argues that those fears have not been realized, and that permitted corporate political expenditures are still vastly outspent by the major parties and candidates themselves.  While the editorial's authors are not unbiased, their point is well taken as to the first election since Citizens United was decided.

What we do not know, of course, is what effect Citizens United will have on a Presidential election, although we will find that out within the next two years for sure.  We also do not know whether corporate political expenditures will increase over time as those new First Amendment rights become realized.   However, most big corporations have directors and shareholders holding all sorts of political viewpoints.  It is unlikely that many publicly traded companies will want to risk offending investors by siding with a Democrat or Republican candidate. 

So, perhaps the fears that followed the Supreme Court's decision were indeed misplaced, and Citizens United was a true victory for the First Amendment, as today's editorial argues.  The future will ultimately reveal any yet unrealized impact of this decision.  Just as the Supreme Court made its decision a year ago in view of all the circumstances then existing, it can just as easily revise its holding in the future should different circumstances warrant correction.

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. 

Attack ads by non-candidate groups, such as unions, advocacy groups, party senatorial or Congressional campaign committees, and other political action committees, are treated much differently.  Because the "no censorship" rule does not apply, and because stations can make the decision whether or not to accept these ads in the first instance, if the ad contains content that could create liability, broadcasters should beware.  Broadcasters could be liable for disseminating claims, especially untrue claims, made in such ads.  So how are broadcasters supposed to deal with these ads?  Do they need to research the content of every ad?  Some ideas from our Political Guide on these questions follow:

What if I get a complaint about the content of a political ad that is bought by a group other than a candidate’s campaign committee? Can I refuse the ad based on its contents?

The “no censorship” rules apply only to ads by candidates and their authorized campaign committees. Thus, the sale by the stations of an ad to a third-party group is purely voluntary. If you get a complaint about a third-party ad, you can pull that ad. In fact, you do not need to run any third-party ads if you do not want to. 

Can I have liability for running an attack ad from a third-party group?

Yes. Because a station has the right to decide whether or not it will run an ad, it can be held liable for the content of that ad. If an ad contains an attack on a candidate that the station knows to be false, or the station is told that the ad is false and the station continues to broadcast the ad and does nothing to investigate whether the ad is in fact false, liability to the station could arise if the claims are in fact false.

How do I know whether or not a third-party ad is true or not?

The station must do a reasonable review of an ad – especially if the truth of the ad has been challenged. If you receive a challenge to the truth of a third-party ad, ask the committee or organization that is sponsoring the ad for information backing up its claims. Review that information for accuracy and reliability, and check with counsel to assess the sufficiency of the backing material to avoid liability for defamation or other torts. It is best to stop running the ad while doing this investigation.

Essentially, if broadcasters receive a challenge to the content of a third-party attack ad, they have a duty to research that content to determine if it is true.  If they do not, and the claim being made is in fact false, they face potential liability for running a falsehood with "malice", e.g. either knowing that it is untrue or recklessly disregarding the truth of the ad.  Most sophisticated political advertisers will have substantiation available for the claims that they have made.  However, even after reviewing the substantiation, these issues are often close calls, and different companies have different tolerance for the legal risk that these ads entail. Thus, stations should tread carefully in dealing with these ads, and consult legal counsel when issues arise.