A front page article in today’s Washington Post reports that the National Republican Congressional Committee expects to spend about $45 million on negative campaign ads this year, attacking Democratic challengers on personal and character issues. One academic quoted in the article indicated that this year’s election may be "a more negative campaign that any in recent memory."
If the Republican Party spends money, no doubt the Democrats and other interest groups will be spending as well in this tight election with control of Congress potentially at stake. For broadcasters, this means that they will be in for lots of controversy, and lots of work.
When a legally-qualified candidate buys advertising time on a broadcast station, the station cannot censor that ad. Therefore, the station is exempt from any liability for the content of that ad. But when the ad is purchased by a non-candidate third party group, the station has no obligation to run the ad, and therefore, if the ad is defamatory, the broadcaster could have liability for running it. Particularly if the broadcaster knows or suspects from the content of an ad that it is false, or is put on notice that the facts contained in the ad are untrue, the broadcaster faces liability if it does nothing to investigate the truth of that ad. So, if a broadcaster is running an attack ad and gets a complaint about the truth of the ad (most likely from the candidate being attacked), the broadcaster needs to verify the truth of the claims being made before any further airing of the ad. And usually the proponent of the ad will have reams of paper to support the claims that are made – support that needs to be evaluated by the broadcaster.
An article in today’s Detroit Free Press talks about how difficult it can be to make a judgment as to whether or not an ad is true. Ads attacking the Michigan Republican gubernatorial candidate appear to be carefully worded to convey a message which the candidate claims is untrue, yet the proponents of the ad claim that each individual assertion in the ad is true. Broadcasters will find that most attack ads will very similar. Thus, these ads need to be approached with care. They should be vetted with a company’s counsel to assess the risk that running the ad may pose.
The more contentious the race, the more concern a broadcaster should have. With many contentious races on the horizon this year, broadcasters should be prepared to spend the months between now and election day evaluating the claims of dueling supporters of political candidates.