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….