In these last days before the November election, the third-party ads attacking candidates in various political races don’t show any sign of letting up. In fact, press reports indicate that, if anything, the use of these ads is expanding to states not yet receiving them as, because there is so much money in these organizations and so few days left to spend it, they are throwing money into ads in states where there was thought to be little chance of their candidate prevailing. As we warned in our article about third-party political advertising, stations always have a bit of risk in running these ads, as stations have full discretion as to whether or not these ads air. Unlike candidate ads that cannot be censored, third-party ads are aired at the discretion of the station, and if the station airs an ad that is false, and injurious to a candidate, and the station either knows or should have known that the ad was false yet continues to air it (meeting the "actual malice" standard as applied by the Supreme Court to public figures in NY Times v Sullivan), the station theoretically has liability for the content of that ad.
While stations in political seasons often receive threatening letters about third-party ads from representatives of candidates that are attacked – suggesting that the station continuing to run the ad will lose its license or be sued for defamation – such threats rarely result in real penalties or even subsequent legal actions from the complaining parties. But in a complaint just filed in US District Court in the Eastern District of California, Congressman Jeff Denham has filed suit against the Democratic Congressional Campaign Committee for producing an allegedly defamatory attack ad, and against 5 local television stations that are allegedly running the ad even after Denham’s representatives told the stations that the ad was false and requested that the ad be removed from the air. The Congressman is seeking injunctive relief (meaning that he wants the Court to order that the ad be stopped) and damages as appropriate.
One of the noteworthy aspects of this case is that the attacks are not ones that deal with the personal life of the candidate, but instead they are attacks on his voting record. According to the complaint, the ad makes the claim that the Congressman voted to protect his salary in the event of a government shut-down while endangering military pay if the government was temporarily unfunded. The complaint alleges that these claims are false, and that the legislation cited actually held back Congressional pay if the government closed, and that the Congressman always supported funding for the troops, issued a statement to that effect, and voted for legislation that required such funding. We have not seen the Answer to the Complaint, so we do not know the specific response yet from those defending the ad. But in the typical case, the ad’s sponsor will be able to show other votes on other legislation that back up its claims. Oftentimes these votes will be on bills with dozens or hundreds of other provisions in them, where a legislator may have good reasons totally unrelated to the issue at hand for taking the position that they did on the bill – but often providing some level of support for the claims made. Because of the many votes on the confusing and complicated legislation that are taken in Congress, it is usually difficult for a candidate to support a lawsuit based on the defamatory nature of claims about a legislative record, as it is so difficult to prove that the claims are in fact false. But we have no way of knowing what support the sponsors of the ad have in this case.
But this case does put stations on notice that there are cases where candidates are willing to follow through on their threats to bring legal actions for political claims that they think are defamatory. Even if the claim is ultimately not successful, it will cause the station to spend the time and incur the cost of defending against the claim. This claim shows that stations really do need to exercise some degree of care in dealing with third-party political ads in these closing days of this election year, and insure that there is some back-up for the sometimes outrageous claims made in non-candidate political ads.