In recent weeks, Facebook has been criticized for adopting a policy of not censoring advertising and other content posted on its platforms by political candidates. While Facebook apparently will review content whose veracity is challenged when posted by anyone else, it made an exception for posts by political candidates – and has received much heat from many of those candidates, including some who are currently in Congress. In some cases, these criticisms have suggested that broadcasters have taken a different position and made content-based decisions on candidate ads. In fact, Congress itself long ago imposed in Section 315(a) of the Communications Act a “no censorship” requirement on broadcasters for ads by federal, state, and local candidates. Once a candidate is legally qualified and once a station decides to accept advertising for a political race, it cannot reject candidate ads based on their content. And for Federal candidates, broadcasters must accept those ads once a political campaign has started, under the reasonable access rules that apply only to federal candidates.
In fact, as we wrote here, broadcasters are immune from any legal claims that may arise from the content of over-the-air candidate ads, based on Supreme Court decisions. Since broadcasters cannot censor ads placed by candidates, the Court has ruled, broadcasters cannot be held responsible for the content of those ads. If a candidate’s ad is defamatory, or if it infringes on someone’s copyright, the aggrieved party has a remedy against the candidate who sponsored the ad, but that party has no remedy against the broadcaster. (In contrast, when a broadcaster receives an ad from a non-candidate group that is claimed to be false, it can reject the ad based on its content, so it has potential liability if it does not pull the ad once it is aware of its falsity – see our article here for more information about what to do when confronted with issues about the truth of a third-party ad). This immunity from liability for statements made in candidate ads absolves the broadcaster from having to referee the truth or falsity of political ads which, as is evident in today’s politically fragmented world, may well be perceived differently by different people. So, even though Facebook is taking the same position in not censoring candidate ads as Congress has required broadcasters to take, should it be held to a different standard?