As the dates for the first Presidential primaries draw near, more and more stories appear in the press about attack ads growing in importance. These ads are coming both from the candidates themselves trying to draw distinctions with their opponents, and from third party, supposedly independent, groups either attacking or supporting one of the candidates. See, for instance, the recent story in the Washington Post on the increase in third party ads. These ads have raised political issues on the campaign trail as to whether negative campaigns work, and as to how independent of the candidates the third party expenditures really are. They also raise legal issues for broadcasters. Whenever there are attack ads that are run on a broadcast station, there are complaints from the candidate being attacked about how unfair the criticism is. Broadcasters have to deal with these complaints, and the sponsor of the ads makes a huge difference in the broadcaster’s responsibilities to check the truth of the statements made. As we explain in our Political Broadcasting Guide, broadcasters may not censor the content of a candidate ad, and thus are exempt from any liability for the content of that ad. But attacks contained in third party ads may require the broadcaster to do some investigation into the claims being made to make sure that they avoid legal liabilities.
For ads run by a candidate or his or her authorized committee, the Communications Act forbids a broadcaster (or cable company that chooses to sell time to political candidates) from censoring the candidate’s message. Because of the no censorship rule, the Courts have ruled that broadcasters are immune from any sort of liability for defamation that may arise from the content of the ad. Thus, broadcasters cannot reject a candidate’s message based on its content (with the possible exception of cases where that content would violate a criminal law, as opposed to just creating some civil liability), and need not take any action in response to a complaint by an opposing candidate that the ad contains incorrect or distorted information.
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.