defamation in political advertising

Stories about “deepfakes,” “synthetic media,” and other forms of artificial intelligence being used in political campaigns, including in advertising messages, have abounded in recent weeks.  There were stories about a superPAC running attack ads against Donald Trump where Trump’s voice was allegedly synthesized to read one of his tweets condemning the Iowa governor for not supporting him in his Presidential campaign.  Similar ads have been run attacking other political figures, prompting calls from some for federal regulation of the use of AI-generated content in political ads.  The Federal Election Commission last month discussed a Petition for Rulemaking filed by the public interest group Public Citizen asking for a rulemaking on the regulation of these ads.  While the FEC staff drafted a “Notification of Availability” to tell the public that the petition was filed and to ask for comments on whether the FEC should start a formal rulemaking on the subject, according to an FEC press release, no action was taken on that Notification.  A bill has also been introduced in both the Senate and the House of Representatives to require that there be disclaimers on all political ads using images or video generated by artificial intelligence revealing that they were artificially generated (see press release here).

These federal efforts to require labeling of political ads using AI have yet to result in any such regulation, but a few states have stepped into the void and adopted their own requirements.   Washington State recently passed legislation requiring the labeling of AI-generated content in political ads.  Some states, including Texas and California, already provide penalties for deepfakes that do not contain a clear public disclosure when used in political ads within a certain period before an election (Texas, within 30 days and California within 60 days).Continue Reading Artificial Intelligence in Political Ads – Legal Issues in Synthetic Media and Deepfakes in Campaign Advertising – Concerns for Broadcasters and Other Media Companies

Last week’s announcement of the settlement between Fox News and Dominion Voting Systems certainly dominated the popular press and the discussions among most TV pundits, highlighting the law of defamation for anyone who follows the news.  While the case illustrates the principles that we have written about many times on this blog (see, for instance, our articles here and here), the settlement illustrates for broadcasters and other media companies the real risks that exist when disseminating content that is false and could harm the reputation or business prospects of any recognizable individual or group.

Most particularly, the Fox case sends the message to media companies that defamation claims against public figures are alive and well and have the potential to result in substantial liability. While the bar to a party’s success in raising such a claim remains high, it is not insurmountable.  On this blog, we’ve written less about issues arising from news coverage than those that arise in connection with political advertising.  The same issues that arose in the Fox case can arise in cases where broadcasters run political ads knowing or with reason to believe that they are false.  Thus, our past warnings regarding the  need to be vigilant in assessing non-candidate attacks on other candidates or recognizable individuals remains more important today than  ever, as the Fox case has highlighted the potential path to riches some attacked individuals may see when false attack ads run on broadcast stations or other media.Continue Reading Fox-Dominion Settlement Focuses Light on Defamation Claims – Broadcasters Beware of Airing Untrue Political Ads

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

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The Federal Trade Commission issued a press release which warns advertisers to avoid misleading endorsements. The FTC also sent a

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.
Continue Reading Defamation by Tweet – Court Case Reminds Broadcasters to Take Cease and Desist Requests about Attack Ads Seriously

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • After reviewing comments submitted this summer (we wrote about the rulemaking, here), the FCC will vote at its next

In the last few days, two defamation cases filed against media companies by the Trump campaign have been dismissed – one on the merits and one by agreement of the parties.  This includes the suit filed by the campaign against Northland Television, the licensee of a rural Wisconsin television station.  That station was perhaps the smallest TV station to air an ad by a non-candidate group, Priorities USA, that the Trump campaign alleged was misleadingly edited to assert that the President had labeled the coronavirus a “hoax.”  As we wrote here when that suit was first filed, the campaign claimed that the reference to the hoax was not about the virus itself but was actually a reference to “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  This suit was vigorously opposed by the station and the sponsor of the ad.  The parties have now agreed to voluntarily dismiss that suit with prejudice, meaning that it cannot be refiled.

Another suit was brought by the campaign against CNN alleging that CNN had libeled the President by publishing on its website an article from one of its contributors who alleged that the campaign had assessed the risks of seeking Russian assistance in the 2020 campaign and had “decided to leave that option on the table.”  The campaign alleged that the statement was false and defamatory – and published with knowledge that it was false.  CNN had countered that the statement was protected as it was presented as opinion, not fact, and moreover it was published without “actual malice.”  As we have written before (see, for instance, our articles here and here), under Supreme Court precedent, a claim about a public figure for defamation can only be sustained if it is both false and published with “actual malice” – meaning that the publisher knew that it was false, or acted with reckless disregard as to whether or not it was false and published it anyway.
Continue Reading Two Trump Defamation Claims Dismissed Including Claim Against TV Station for Political Attack Ad – What is the Relevance for Broadcasters? 

Political “issue advertising” – advertising run by groups like PACs and political parties rather than a candidate’s authorized campaign committees – is a rough and tumble world in which broadcasters can often find themselves in the middle.  We’ve written extensively (here, here and here) about how issue advertising can impose additional public file obligations on broadcasters under FCC policy that has recently been clarified.  Plus, there is beginning to be a body of state law seeking to regulate these ads (see, for instance, our articles here and here).  But where the middle perhaps becomes the most uncomfortable for broadcasters is when they find themselves in a dispute over whether an issue ad that they are asked to broadcast is true.  As we wrote here and here, there are certain common procedures that broadcasters need to follow if they have reason to believe that an ad is false, as running an ad that is in fact false, if the station has reason to believe that it is false (e.g. when they are put on notice that the ad is false by a party being attacked in the ad) could lead to liability for defamation.  While claims brought against broadcasters for running these third-party ads are infrequent, it does happen, as is evident from the recent lawsuit by the Trump campaign against a Wisconsin TV station owned by Northlands Television arguing that a portion of a Priorities USA ad attacking the President for his handling of the coronavirus pandemic was false.  Recently, the TV station filed its response to the Trump suit, and the Motion to Dismiss that was filed is instructive on the issues to consider in any defamation lawsuit.

The Trump claim attacks a Priorities USA ad containing a montage of audio clips of President Trump’s words, including the phrase “coronavirus, this is their new hoax.”  The Trump Campaign claimed that the ad and the way that the clips were edited together misrepresents President Trump’s “hoax” comment by falsely claiming that he stated that the coronavirus is a hoax, when the hoax to which he was referring was “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  The complaint cited several “fact checkers” who supported the claim that the reference to the hoax was to the Democratic reaction, not the virus itself.
Continue Reading The Law of Defamation and Political Advertising Argued in Trump Suit Against Wisconsin TV Station

Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant