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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

Facebook will disable “new” political ads the week before this year’s November mid-term election (see its post on this policy here), just as many broadcast stations will be struggling with commercial inventory issues, trying to get last minute political ads on the air without having to dump all of their regular commercial advertisers who will be just starting to ramp up their commercial campaigns for the holiday season.  We’ve written previously about how the legal policies that govern Facebook and other online platforms are different than those that govern broadcast, local cable, and direct broadcast satellite (DBS) political ad sales.  Many of the policies adopted by these online platforms could not be adopted by broadcasters, local cable and DBS companies.  In light of Facebook’s recent announcement and the upcoming election, we thought that we would recap some of our previous reviews of this issue.

In June 2021, we wrote about Facebook’s plans to end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other platform users.  Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – although it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other offending content.  Just a year before, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act, which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230).
Continue Reading Facebook to Reject New Political Ads the Week Before the November Election – Why Broadcasters Can’t Do That

Last week, much was made of an FCC Media Bureau decision rejecting the “reasonable access” claim of a write-in candidate for a Congressional seat in Ohio against radio stations which, after initially running his spots, decided to pull those spots because he had not made a “substantial showing” of his candidacy.  Candidates for federal office (the US House of Representatives, the US Senate and for President) are entitled to buy reasonable amounts of commercial time on all broadcast stations, once those candidates are “legally qualified.”  In other words, commercial broadcast stations cannot refuse to run any ads for candidates for any federal elective office.  We wrote more about reasonable access here, including the considerations about how much time is “reasonable.”

In most cases, the question of whether a candidate is legally qualified for FCC purposes is a relatively simple one.  A station looks to see if that candidate has filed the required paperwork and qualified for a place on the election ballot in the district in which they are seeking office.  The case decided last week was one of the hard cases, where the candidate did not qualify for a place on the ballot but argued that he was a write-in candidate for the congressional seat.  The FCC has recognized that write-in candidates can be legally qualified so as to be guaranteed reasonable access and other protections afforded to candidates under FCC rules, including the right to not have their commercial messages censored by the station (see our posts here and here on the no censorship rule) – but they must make a substantial showing that their candidacy is legitimate.  The FCC has recognized that it would put broadcasters in an untenable position if anyone could, on a whim, declare that they are a write-in candidate and therefore be entitled to buy uncensored advertising time (at lowest unit rates in the 45 days before a primary or the 60 days before a general election – see our post here on lowest unit rates) on any commercial broadcast station that they wanted to.  So the FCC requires this substantial showing – and the adequacy of that showing was the issue in last week’s decision, and has been a question that other write-ins have faced in other elections in the past.
Continue Reading Reasonable Access and the Problem Candidate – FCC Declares a Write-In Candidate Not Entitled to Buy Radio Spots, But That May Not Be the End of the Story

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.

  • Following up on its proposals from last summer to clean up radio technical rules that were inconsistent, outdated, or inaccurate,

…

Ads planned to run in yesterday’s Super Bowl by Republican candidates in primaries to select candidates for 2022 senate elections drew comments and controversy even before the game, with some calls to block the ads from the air.  Ads for a candidate in Pennsylvania used the “Let’s Go Brandon” language generally acknowledged to be an allusion to a profanity directed at President Biden (see article here).  In Arizona, a Senate candidate showed the candidate in a fictionalized old west high noon shootout with characters playing President Biden, Nancy Pelosi and Senator Mark Kelly (see article here), which some found particularly offensive because of its associating gun violence with Kelly whose wife, Gabby Giffords, was a victim of such violence while serving in Congress.  There were calls for the stations running the game to reject these ads, or for the FCC to penalize stations for those ads.  While popular sentiment may call for such actions, the law does not allow that to happen,

We have written about this issue many times before (see, for instance, our refreshers on the rules with respect to candidate ads, here and our article here), yet these issues still come up all the time whenever a legally qualified candidate produces a controversial ad.  Broadcasters need to know the rules so that they don’t pull an ad that they are not allowed to censor under the FCC’s rules, and that they don’t run one for which they could in fact have liability.
Continue Reading Controversial Super Bowl Political Ads on Local Stations – Why They Can’t Be Pulled

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

According to press reports (see this story in Verge and this one in the Washington Post), Facebook will end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other users of its platform.  Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – though it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other offending content.  Just a year ago, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230). Last year, we compared Facebook’s policy with the laws that apply to other communications platforms, including broadcasters and cable companies.  In light of the potential change in Facebook’s policy, we thought it would be worth revisiting that analysis now.  Here is what we wrote last year:

[In January 2020], the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.
Continue Reading Reports that Facebook Will End Policy of Not Censoring Politician’s Posts – How Other Communications Platforms are Regulated on Political Speech

This weekend, the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here).  There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply.  So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply.
Continue Reading Facebook Not Fact-Checking Candidate Ads – Looking at the Contrast Between Online Political Ads and Those Running on Broadcast and Cable

While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28.   January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020.
Continue Reading Election Season in High Gear for Broadcasters – Lowest Unit Rate Windows to Begin in Iowa This Week, New Hampshire Next and Other States Soon to Follow

It seems like every other week, there is a story about an online media giant making changes in their rules that govern political advertising on their platform – and being either praised or condemned for doing so. We recently wrote about the controversy over Facebook deciding to not fact-check candidate ads, and how Congress itself requires by statute that broadcast stations take that same position. Broadcast stations are not allowed to censor ads from legally qualified candidates so, except in very limited circumstances where the ads may be criminal in nature (and not where they might just give rise to civil claims, like in the case of defamation or copyright infringement), broadcasters cannot reject ads based on their content. The right of a person being defamed in an ad for redress of any civil claim they may have is against the candidate who sponsored the ad, not against the broadcaster. Last week brought the news that Twitter has decided to ban political ads from its platform. Broadcasters, on the other hand, have no ability to ban ads for Federal candidates, as Congress has legislated a right of access to the airwaves where broadcasters cannot refuse to run political advertising from any Federal candidate.

That right of reasonable access, written into Section 312 of the Communications Act, requires that broadcasters give Federal candidates access to all classes of advertising time sold on a broadcast station, and that access be provided in all parts of the broadcast day. See our post here for more information about that reasonable access requirement, and our post here on the limited exception accorded for special events with limited advertising inventory (like the Super Bowl), where the provision of ads to one side might be problematic as there would be no opportunity for an opposing candidate to find an equivalent opportunity to advertise, and because of the potential disruption to commercial advertising on these stations given the limited availability of advertising breaks in such programs.
Continue Reading Twitter Bans Political Ads – Doing What Broadcasters are Forbidden to Do