A recent controversial court of appeals decision on a defamation claim brought by Congressman Devin Nunes sends a signal to broadcasters about the care they need to give to reviewing commercial messages – particularly political attack ads – when questions are raised as to the truth of the assertions made in those ads. As we have written before, broadcasters are immune from civil liability for defamation claims when they broadcast an ad from the campaign of a legally qualified candidate, as a station cannot censor a candidate ad. Because broadcasters must transmit the ad as produced, they are immune from liability for its content. But ads from non-candidate groups, including political parties and PACs, can be censored by stations – so stations that decide to run such ads are subject to liability for their content. Under Supreme Court precedent, defamation of a public figure (like a political candidate) is found when material is transmitted to the public that is false and results in injuries to the candidate plus, unique to public figures, the ad was transmitted with “actual malice.” Malice means that it was transmitted either knowing that the ad was false or having reason to believe that it was false. See our article here about the analysis of this issue in other cases. When a broadcaster receives objections alleging that content in the ad is false, it can be argued that the station has been put on notice that it has an obligation to assess the truth of the ad, and thus would need to take it down if the ad includes defamatory claims being made.
We recently wrote about the opinions from two Supreme Court justices suggesting that it should be easier for public figures to prove defamation claims. The case that led to the recent court of appeals decision began when Congressman Nunes brought a defamation lawsuit in response to a magazine’s publication of allegations that his family’s farm used illegal migrant labor and suggested that his political positions against immigration were thus hypocritical. That lawsuit urged the same change in defamation law suggested in the Supreme Court opinions, and also alleged that the implications in the article were false, as Nunes know nothing about the migrant laborers. A few months later, a reporter tweeted a link to the article, suggesting that his twitter followers look at the allegations in the article. While the court found that the article itself was not defamatory (since the publisher had no reason to believe the information in the article was false at the time of publication, and thus acted without malice), it also found that the reporter’s tweet was potentially defamatory since, after the article was published, Nunes had filed his lawsuit against the magazine claiming that the article’s suggestion that he knew about the illegal workers was false. The court held that a summary decision in favor of the reporter was not proper, finding that a jury could determine that the reporter’s tweet was defamatory even though the underlying article was not, as the tweet came after the claim by Nunes that he knew nothing about the illegal workers.
For many reasons, this decision has raised ire among lawyers who follow defamation law, including the court’s conclusion that the reporter’s tweet was potentially defamatory even though the underlying article was not. But the court’s decision seems to be focused on the issue that broadcasters deal with all the time – that their dissemination of potentially defamatory content can be actionable because they knew or should have known that the content was untrue. The court’s decision does not find that the reporter will be held liable – only that a case could be made that when he published his tweet calling attention to the article and its allegations, the reporter acted with “malice” given the denial from the Congressman. Broadcasters face the same issue when attack ads are challenged, and thus must review those challenges and determine whether there is a likelihood of a defamation action if they continue to run the ad. Have your lawyers on speed dial during contested election seasons, as these issues are always coming up and need careful review and analysis.