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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.Continue Reading California Congressman Files Suit against TV Stations for Alleged Defamation in Third-Party Advertising

How can political attack ads get away with taking out-of-context statements of the candidates that they are attacking, and twisting these statements to convey meanings that were never intended by the candidate who first uttered the words? And how can political ads take a single line of an incredibly complex piece of legislation and use that legislation to allege that a candidate has violated some core belief that the candidate espouses on the campaign trail? Do stations have liability for these attack ads, and must they react when the candidate being attacked asks that the ad be pulled? In the fourth of our series of political broadcasting refreshers (following those on lowest unit rates, equal opportunities, and reasonable access), we’ll address the question of the no censorship provision of the rules and what rights stations have to deal with the content of political ads.

Starting with the basics, the FCC rules (stemming from Section 315 of the Communications Act) prohibit broadcasters from censoring the content of advertising that is a “use” by a candidate. Essentially, that means that the broadcaster cannot reject an ad that is sponsored by the candidate or the candidate’s official campaign committee, if that ad has the recognizable voice or image of the candidate somewhere in the course of the ad. No matter how outrageous the statement of the candidate may be, the station cannot refuse to run the ad (with the limited instance of ads that are legally obscene or which otherwise may violate some Federal felony statute). So, even if an ad by a candidate may be totally untrue in claims made about the candidate’s opponent, or even if it could give rise to other civil liability (for instance if it is defamatory or a copyright violation), the station cannot refuse to run the ad.Continue Reading Political Broadcasting Refresher Part 4 – No Censorship – How Can Candidates Get Away With Those Attack Ads?

With the Florida broadcast airwaves overrun with political ads in the last few days – the great majority of them attack ads – many ask why do broadcasters keep running those ads?  Of course, there are revenue considerations.  But as the attacks get nastier, and perhaps even go against the interest of the station owners themselves, why do broadcasters keep running these ads?  Often, it’s because broadcasters have to – under the applicable laws.  We’ve seen two stories this week that illustrate that point – one where Gloria Allred, the well-known attorney, has written to a number of television stations asking them to refuse graphic anti-abortion ads to be run during the Super Bowl sponsored by purported Democratic presidential candidate Randall Terry, and a second about an NBC-owned station in Florida apparently continued to run a Mitt Romney ad attacking Newt Gingrich, featuring NBC News footage of an old Tom Brokaw Nightly News report, even after NBC News asked the Romney campaign to stop using the clip.  The NBC station apparently recognized its obligations, while Ms. Allred ignored the station’s obligations under Section 315 of the Communications Act and the FCC’s political broadcasting rules. 

Broadcasters are sometimes in a sticky position with nasty political ads, as by law (Section 315 of the Communications Act) they are not allowed to censor a candidate ad.  What this means is that they cannot reject a candidate ad based on its content, with the possible limited exception of where the ad violates a Federal felony statute like the obscenity laws (though not the indecency rules, which are not felony statutes).  If the ads just violate someone’s property interests, or could give rise to some sort of civil liability (e.g. defamation), as we’ve written before, the broadcaster is immune from liability for running the ad by a candidate or his authorized campaign committee. The broadcaster is also immune from liability from a perceived copyright action like that alleged by NBC.  But that immunity arises only because the station cannot, under law, reject the ad.  So the only remedy for someone objecting to the content of a candidate’s ad is to seek a remedy against the campaign itself, not against any station that runs the campaign’s ad.  (See examples of suits against the candidates, but not the stations, in cases we wrote about here and here)  So, even if the copyright owner who objects to the use of its copyrighted content in an ad owns the TV station, it is still stuck running the ad if the candidate insists.

Similarly, in the case that Ms. Allred complained about – asking stations to pull the graphic anti-abortion ads sponsored by Randall Terry, she posed the wrong question – alleging that the ad would be offensive and inflammatory.  Stations can’t make those judgments about political ads – they have to run them even if they can be upsetting. The FCC has even been told by the Courts that it can’t allow stations to channel upsetting political ads (like those anti-abortion ads that Mr. Terry plans to run), into late night hours.  If a candidate wants to run ads in the middle of the day (or in the middle of children’s programs), a station can warn its audience that the ad may be disturbing and that it is being forced by law to run it, as long as such warnings are done in a neutral fashion, but it must run the ad in the form the candidate created it.  So what should Ms. Allred have argued about the Terry ads?Continue Reading Why Broadcasters Have To Air Political Attack Ads Even If They Don’t Want To

Citizens United has led to many third party political ads, which in turn has led to many cease and desist letters to broadcasters and cable operators that they pull those ads. Most concern “false and misleading” statements, which should not be a concern in the political realm. A few concern potential defamation, which may be of concern. Getting substantiation is wise, but in most cases, there is no need to pull the ads in question.
Continue Reading What to Do With Cease and Desist Letters About Political Ads

The Supreme Court Decision in Citizens United v. Federal Election Commission, freeing corporations to use their corporate funds to take explicit positions on political campaigns, has been mostly analyzed by broadcast trade publications as a good thing – creating one more class of potential buyers for broadcaster’s advertising time during the political season – which seems to almost be nonstop in these days of intense partisan battles in Washington and in the statehouses throughout the country.  What has not been addressed are the potential legal issues that this "third party" money may pose for broadcasters during the course of political campaigns.  Not only will an influx of money from non-candidate groups require that broadcasters review the contents of  more commercials to determine if the claims that they make are true, but it may also give rise to the return of the Zapple doctrine, one of the few remnants of the Fairness Doctrine never specifically repudiated by the FCC, but one which has not been actually applied in over a quarter of a century.  Public file obligations triggered by these ads also can not be overlooked. 

First, the need for broadcasters to vet the truth of allegations made in political ads sponsored by non-candidate advertisers.  As we have written before(see our post here), the political broadcasting rules enforced by the FCC allow broadcasters to run ads sponsored by the candidates themselves without fear of any liability for the claims made in those ads.  In fact, the Communications Act forbids a station from censoring a candidate ad.  Because the station cannot censor the candidate ad (except in the exceptionally rare situation where the airing of the ad might violate a Federal felony statute), the broadcaster has no liability for the contents of the ad.  So candidates can say whatever they want about each other – they can even lie through their teeth – and the broadcaster need not fear any liability for defamation based on the contents of those ads.  This is not so for ads run by third parties – like PACs, Right to Life groups, labor unions, unincorporated associations like MoveOn.org and, after the Citizens United case, corporations. Continue Reading What is the Impact on Broadcasters of Supreme Court Decision that Corporations Can Buy Political Ads? More Money, More Ad Challenges and the Return of the Zapple Doctrine

The 2010 political broadcasting season is off to a fast start, with a controversy already erupting in connection with the Illinois Senate race to fill the seat once held by President Obama.  Illinois has one of the first primaries in the nation for the 2010 election, to be held on February 2, 2010.  In that race, Andy Martin, one of the Republican candidates for the open Senate seat that will be vacated by Senator Burris, is reportedly running ads on radio in Illinois stating that the front-runner for the Republican nomination, Mark Kirk, is rumored to be gay, and has many gay staffers, and asking that Kirk clear up questions about his sexuality.  Many stations in Illinois have expressed concern about running an ad from a fringe candidate in the race that makes such a controversial allegation.  Stations that are concerned need to remember that an ad by a legally qualified candidate cannot be censored once a station has agreed to sell time to the candidate.  As we’ve written previously, if the attacking candidate is legally qualified for a place on the primary ballot, as news reports indicate that he is in the Illinois case, then stations cannot censor that ad – and have to run it with these attacks on the front-running candidate, even if the stations do not like the message. 

The Chicago Tribune story about this controversy quotes me as stating that stations can censor a candidate ad if the ad violates a Federal felony statute.  That caveat was added to FCC policy when it was feared that Larry Flint was going to run for Federal political office and run campaign ads that might test the limits of obscenity laws.  More importantly, however, stations should recognize that, because they cannot censor an ad by a candidate’s authorized campaign, the station itself has no liability for the contents of that ad.  The candidate may be sued for libel or defamation (which has occurred in other cases), but the station itself should be immune from liability as it has no choice but to run the ad or violate Federal election laws.  Stations do, however, have the ability to put disclaimers on ads – stating that they are political messages that cannot be censored and do not necessarily reflect the views of the station, but these disclaimers should be applied to all candidates for the same race equally.Continue Reading Early Flap in Illinois Senate Race Reminds Broadcasters that They Cannot Censor Candidate Ad

As we enter the waning days of this election season, where some candidates get more desperate and the attack ads get sharper, broadcasters are often faced with requests that they pull an ad created by a candidate.  Claims are made that the ad contains untrue claims about an opponent or that the ad contains copyrighted material used without permission.  What is a station to do?  When the ad is an ad purchased by a candidate or their authorized committee, and contains a "use" by the purchasing candidate (a use being a spot where the purchasing candidate’s voice or likeliness appears on the spot) the broadcaster is forbidden from censoring that ad.  Essentially, that means that the candidate can say just about anything in their ad (as long as it does not violate a Federal felony statute), and the FCC’s rules prohibit the broadcaster from refusing to air the ad based on its content.  But, because the station cannot censor the ad, it has no liability for the contents of that ad.  This is in contrast to ads by third parties (e.g. advocacy groups, unions, political parties and others not specifically authorized by the candidate), where the broadcaster theoretically has liability for the content of a political ad (see our post on that subject, here).

Two recent cases illustrate the issue.  In one, according to press reports, in a race for the sole seat in the House of Representatives representing the state of North Dakota, one candidate has claimed that the ads of the other misrepresent the positions of that candidate.  The candidate being attacked has asked that the spots be pulled from the air, while the candidate running the spots has refused to pull them.  Even if requested by the candidate being attacked, and even if the ad is in fact false, broadcasters cannot pull one candidate’s ad if that candidate wants to continue to run it.Continue Reading Broadcasters Prohibited From Censoring a Candidate’s Ad

The American Issues Project has recently started running a controversial new television ad attacking Barrack Obama for his connections to former Weather Underground figure William Ayers.  The text of the ad is reported here.  While reportedly some cable outlets (including Fox News) have refused to air the ad, numerous broadcast stations are also wondering what the legal implications of running the ad may be.  We have already seen many other attack ads being run by third-party groups – including political parties, long-standing activist groups like Move On.org, as well as from new organizations like American Issues Project which have seemingly been formed recently.  As the use of such ads will no doubt increase as we get closer to the November election, it is important that broadcasters understand the issues that may arise in connection with such ads under various laws dealing with political broadcasting.  Legal issues that must be considered arise not only under FCC rules, but also potentially in civil courts for liability that may arise from the content of the ad.  Broadcast stations are under no obligation to run ads by third party groups, and stations have a full right to reject those ads based on their content.  This is in contrast to ads by Federal candidates, who have a right of reasonable access to all broadcast stations, and whose ads cannot be censored by the stations.  As a candidate’s ad cannot be censored, the station has no liability for its contents.  In contrast, as the station has the full discretion as to whether or not it will run a third-party ad, it could have liability for defamation or other liabilities that might arise from the content of such ads that it decides to accept and put on the air.  

The standards for proving defamation (libel and slander) of a public figure are high, but if the ad does contain some clearly false statements, the standard could in fact be met.   Basically, to have liability, the station needs to run an ad containing a false statement either knowing that the ad is untrue or with "reckless disregard" for the truthfulness of the statements made.  This is referred to as the "malice standard."  Essentially, once a station is put on notice that the ad may be untrue (usually by a letter from the candidate being attacked, or from their lawyers),  the station needs to do their own fact checking to satisfy themselves that there is a basis for the claims made or, theoretically, the station could itself be subject to liability for defamation if the claims prove to be untrue.  A few years ago, some TV stations in Texas ended up having to pay a candidate because they ran an ad by an attack group that was shown to contain false statements, and the ad was run even after the candidate complained that the statements were untrue.  These determinations are often difficult to make as the ad’s creators usually have hundreds of pages of documentation that they say supports their claims, while the person being attacked usually has documentation to refute the claims.  Thus, the determination as to whether or not to run the ad is a decision that each station needs to make after consultation with their lawyers, and after careful review of the spot and the backing documentation.Continue Reading Independent Groups Start Running Presidential Attack Ads – What Are the Legal Implications for Broadcasters?

In the last few days before the Super Tuesday series of presidential primaries, efforts are being made across the political spectrum to convince voters to vote for or against the remaining candidates.  With Obama buying Super Bowl ads in many markets, Clinton planning a one-hour program on the Hallmark Channel the night before the primaries, Rush Limbaugh and other conservative radio host attacking McCain, and third-party interest groups and unions running ads supporting or attacking various candidates, a casual observer, looking at this media blitz, may wonder how all these efforts work under the rules and laws governing the FCC and political broadcasting.

For instance, sitting here watching the Super Bowl, I just watched a half-time ad for Barack Obama.  Did the  Obama campaign spring for one of those million dollar Super Bowl ads that we all read about?  Probably not.  It appears, according to press reports, that instead of buying a national ad in the Fox network coverage, the campaign purchased local ads in certain media markets.  And with reasonable access requirements under the Communications Act and FCC rules, he could insist that his commercial get access to the program as all Federal candidates have a right of reasoanble access to all classes and dayparts of station programming.  Moreover, the spot would have to be sold at lowest unit rates.  While those rates are not the rates that an advertiser would pay for a spot on a typical early Sunday evening on a Fox program, they still would be as low as any other advertiser would pay for a similar ad aired during the game.  In this case, by buying on local stations, at lowest unit rates, his campaign apparently made the calculation that it could afford the cost, and that the exposure made it not a bad deal.Continue Reading The Run-Up to Super Tuesday – Rush, the Super Bowl, Union Ads and an Hour on the Hallmark Channel