There is but a week to go before the mid-term elections, and political ads blanket the airwaves across the country. From discussions that I have had with many attorneys, broadcasters and other campaign observers, the ads this year have been particularly aggressive. Some publications have even suggested that, in the waning days of the campaign, the ads may become even worse as desperate campaigns look for some last-minute claim that could turn the tide in an election. In this rush to election day, broadcasters need to be on the alert for allegations that an attack ad from a non-candidate group is false or defamatory, because in certain instances, the ad could result in a claim against the broadcaster.
As we have written before, broadcasters (and local cable companies) are forbidden from censoring the message of a candidate (see, for instance, our articles here and here). Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad. Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads. (Note that this protection applies only to broadcasters and local cable companies – the no censorship rule does not apply to online distribution – see our articles here and here – so other considerations need to be considered when dealing with online political ads). But some have taken that to mean that broadcasters have no fear of liability for any political ad. As I explained in a recent interview with a Detroit television station, that is not true – broadcasters do theoretically have the potential for liability if they run an ad from a non-candidate group either knowing that ad to be false, or by continuing to run a false ad after being put on notice that the ad was false and ignoring that notice (see also this article about this distinction between candidate and non-candidate ads, and how the media’s coverage of campaigns can overlook these distinctions). In 2020, President Trump’s campaign brought a lawsuit against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory (see our articles here and here on that suit). In this election cycle, there are press reports of a lawsuit by Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist (see articles here and here). Even Roy Moore, the defeated Senate candidate from several years ago in Alabama, successfully pursued a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct (this decision was not against a broadcaster, but instead against the ad’s sponsor, see report here).
While these legal actions are not common, they do occur, and stations must take seriously any claim that a political ad that they are running is false. The Communications Act’s “no censorship rule” applies only to candidate ads. Stations are free to reject an ad from a non-candidate group based on concerns about its content. 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 distributes them with “negligence,” e.g., where they had notice that the ads 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 it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked telling the station that the ad is false), the station needs to take steps to investigate the truth of the ad. (Note that there have been statements from some Supreme Court justices that suggest that this standard that arose in a case, NY Times v. Sullivan, should be changes to make it easier for a public figure to sue – see our article here – watch developments in this area).
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 to the station. 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 to determine if it is likely actionable. There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. 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”) are less likely to be actionable than are claims about the character, integrity, and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).
The FCC itself is not a fact checker of claims made in political ads. Many times, the 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, which deals with deceptive ads. But even the FTC is not routinely 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. Generally, our First Amendment does not allow a government agency to decide what is true in political ads and what is not. Thus, these questions are left to private actions for defamation.
While defamation actions against broadcasters for not pulling an attack ad are not common, the time and expense involved in any such litigation can be great, so stations need to carefully assess any demand to pull an attack ad, and to discuss the ad with their attorney if a cease-and-desist letter is received. Many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election rather than to advance real legal claims but, as the lawsuits noted above make clear, there are occasions when the ads will in fact bring legal actions. Stations need to carefully review all the demands to make sure that the ones that they receive don’t have merit – and they need to do so quickly here in the waning days of the campaign. Keep your attorney on speed dial, as these are sometimes not easy calls to make. But as the consequences can be great, stations need to act with care.