As we wrote here last week, a station has no obligation, and in fact no right, to edit a candidate’s ad, so it has no liability for the contents of that ad. But at this time of year, we are receiving many calls about ads from third party groups who want to address an election, usually supporting or attacking a candidate.  For these non-candidate ads, including all ads dealing with ballot propositions, the station can choose whether or not to run the ad, and has complete editorial freedom to accept or reject an ad based on its content. Thus, as the station can elect whether or not to run an ad, it can be found liable if the ad contains material that is actionable. In fact, there have been cases where a station has been found liable for running a defamatory ad after having been put on notice that the claims in the ad were not true. 

A station has a duty to investigate the truth of an ad from a noncandidate.  Even though the station did not produce the ad, by broadcasting it, the station can be found to have liability.  Where an ad is false and contains any sort of personal attack on an individual or identifiable class of people, there is the possibility of a defamation claim.  When the ad deals with a public figure (such as an attack ad by a third-party group against a political candidate), for there to be liability, not only does the ad have to be false, but the claim must be made with "malice."  Malice can be found if the claim is broadcast either knowing that it was false or with reckless disregard for the truth.  In other words, if just by looking at the spot the station should know that it is false (e.g. a claim that your local Congressman was convicted of treason), the station should not run it.  Even if the ad is not clearly false on its face, if the station is put on notice that the claim is false yet continues to run it without investigation of the truth, then reckless disregard could be shown.

When a third party attack ad is broadcast, a station may well get a letter from a lawyer for the candidate being attacked, claiming that the ad is false, and threatening some action against the station if the ad continues to run.  Once the station is put on notice that the spot may be false, the station has a duty to investigate whether or not it is true before continuing to run the ad.  Most of the groups producing attack ads have information on hand supporting their claims, and they will quickly provide it to the station if asked.  The station should review that material, and discuss it with counsel and their corporate headquarters to determine how comfortable they are with the truth of the ad.  This is often not an easy question, but should be treated carefully to avoid any potential liability for running an ad that is not true.