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).Continue Reading With A Week to Go Before the Midterm Elections, Watch for Last Minute Unfounded Attack Ads – The Potential Liability of Stations for False Claims in Ads from PACs, Parties and Other Noncandidate Groups