My station received a cease and desist letter for a third party political ad. What should we do? This is a question we hear more than ever these days from both broadcasters and cable operators. As we previously advised, this is not unexpected following the Supreme Court’s decision in Citizens United, which allowed third party money to be used freely for political advertising on behalf of candidates for federal office.
Of course, if the ad is a "use," meaning that it contains the recognizable voice or image of the candidate sponsoring the ad, Section 315 of the Communications Act provides absolute immunity to broadcasters and cable operators for anything said in the ad. But most of the cease and desist letters relate to third party ads attacking candidates that are not "uses" exempt from censorship under Section 315. (The purely negative use of a candidate’s voice or image is not a protected "use.")
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.