Political speech has been called the "life-breath of democracy" by the US Supreme Court and receives very strong First Amendment protection.  For that reason, the FCC has said that it will "not attempt to judge the truth or falsity of material broadcast regarding candidates or ballot issues."  That principle is sure to be tested in the wave of negative campaign ads we are likely to see between now and November, many of which will generate "cease and desist" letters from the subjects of those negative ads. Of course, broadcasters and cable operators alike are immune from liability for anything said in the context of a candidate "use" featuring a sponsoring candidate’s recognizable voice or image…the so-called "no censorship" rule.

There is, however, one type of political ad that could create potential liability for the media if allowed to run unchecked:  A third party or PAC attack ad that is defamatory. A defamatory ad is one that exposes the candidate to public hatred, shame, disgrace or ridicule.  Generally, these are ads that allege crime, fraud, dishonest or immoral conduct on the part of the candidate.  Truth is the only absolute defense to a defamatory claim.  Therefore, when defamation is alleged, substantiation should be requested.  Read on for details of a recent case study….


Continue Reading Political Ad Content—When Do You Need to Worry?

I had an interesting question this week – asking why beer companies won’t advertise on radio stations with younger demographics.  Was it a law or just a marketing decision?  What I found is that it is a little of both.  While there are no laws specifically prohibiting the advertising of beer on radio stations with younger audiences, the Federal Trade Commission and Congress have been very concerned about all alcohol advertising, especially advertising that appears to encourage under-aged drinking. Thus, to avoid regulation, the Beer Institute has adopted voluntary standards that require its members to advertise only on radio stations which have an audience that is at least 70% comprised of those older than the legal drinking age. 

The FTC has periodically issued reports on advertising for alcoholic beverages, the last report having been issued in 2003.  Appendix D to that report contains the Beer Institute guidelines.  As set forth in those guidelines, the industry looks to audience demographics, by daypart, in deciding whether or not its members should buy time on a particular station.  If the Arbitron or similar ratings data shows 30% or more of a station’s audience in a given daypart is under 21, then there will be no advertising in that daypart on the station.


Continue Reading Britney and No Beer – Why Beer Companies Don’t Advertise on Radio Stations With Young Demos