With less than a month to go before the November election, we can expect more and more attack ads, some of which may lead to cease and desist letters from the candidate being attacked. These letters can raise the risk of defamation claims against broadcasters and cable companies when the ads are not bought by candidates. The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our articles here, here and here about other potential FCC and state law liability arising from such ads – note that since our last article on state AI laws, there are now over 20 states with AI laws I place). Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups.
As we have written before, Section 315 of the Communications Act forbids broadcasters (and local cable companies) from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here). Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads. (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here) Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered.
Continue Reading Broadcasters Should Evaluate Attack Ads for Liability Concerns in the Final Weeks Before the November Election