As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty. With the rise in the number of attack ads, stations are facing more and more demands from candidates who are being attacked in these ads, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality. What do stations do when confronted with these claims?
We have written about this issue several times before (see, for instance, our articles here and here). In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee. If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content. Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here). Because the station cannot pull the ad based on its content, the station has no liability if the candidate ad defames their opponent. The opponent’s only remedy is to sue the candidate who ran the ad. But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups?
Stations must take seriously any claim that a political ad that they are running is false, particularly where there is legal action threatened if the ad is not pulled from the airwaves. No censorship does not apply to third-party ads, only to candidate ads. Thus stations can pull a third-party ad because of its content. While stations need not fact check every ad they receive, if an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station. Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or should have known that they were false, yet they continued to distribute the false material anyway. Thus, if a station does not know that a claim in a third-party ad is false, but is put on notice that it is (e.g. by a letter from an attorney representing the party being attacked), the station has a duty to investigate the truth of the ad.
If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability. Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys if they receive a claim that an ad that they are running is false to determine if it is likely actionable. Typical political claims (e.g. “candidate X is a big spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases 12 times”) are less likely to be actionable than are claims about the character, integrity and similar personal qualities of a candidate.
The FCC itself is not a fact checker of claims made in political ads. Many times letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest. Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, that deals with deceptive ads. But even the FTC routinely is not involved with the political advertising process, given that the involvement of any government agency is assessing the truth or falsity of any political ad is so fraught with First Amendment issues. You don’t want a government agency deciding what is true in political ads and what is not. Thus, these questions are left to private actions for defamation.
While such actions are not common, there have been a few broadcast stations sued for running of allegedly false political ads, which they kept running after being told that they were false. You don’t want to go to the time and expense involved in any such litigation, so assess these claims with your attorney once they come in. Many of these demand letters are sent more to intimidate stations into pulling ads in the last few days before an election than to advance legal claims, but you need to review all the demands to make sure that the ones that you receive don’t have merit.
For more on various political broadcasting issues, see our Political Broadcasting Guide, here.