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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.

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.