Every election season there is the same refrain from candidates who are attacked in political ads run on broadcast stations – that ad is unfair and the broadcaster who is running it should take it off the air. Sometime, that request is sent by a lawyer with threats to bring legal actions if the broadcaster does not stop airing the ad. What is a broadcaster to do when it gets one of these requests to pull a political ad from the air? While we have written about this issue many times before (see, for instance, our refreshers on the rules with respect to candidate ads, here, and non-candidate, third-party attack ads, here), questions still come up all the time. Thus, 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.
The rules are actually fairly simple in concept, and for ads sponsored by candidates themselves, the rules are fairly simple for broadcasters to implement. It’s very basic – broadcasters can’t censor a candidate ad, so they can’t reject it (or remove it from the air) no matter what its content is. The FCC has made only one exception to this “no censorship” obligation. That exception was adopted when Larry Flint was planning to run for Federal elective office and stations feared that he would run sexually explicit campaign ads. At that time, the FCC adopted a policy that broadcasters need not run an ad that would violate a Federal criminal law (e.g. obscenity). That is a very narrow decision, as the Courts have even forced the FCC to make stations run without censorship graphic anti-abortion ads with disturbing content, where such ads would not be legally obscene (they might be indecent under FCC rules, and may be disturbing to some, but the airing is not a criminal violation, so the Courts said that they cannot be blocked by a broadcaster). Because broadcasters have essentially no choice but to run a political ad in the form that the candidate provides it, and cannot reject it based on content, the Supreme Court has recognized an exemption from any broadcaster liability for the content of the ad. So the candidate who claims that he is libeled or defamed by the political ad needs to seek relief from the candidate who ran the attack ad, not from the station. But there are some important details that need to be observed to make sure that there is no liability for the broadcaster.
Continue Reading Questions about the Truth of Political Ads, What’s a Broadcaster to Do When a Candidate Complains About an Attack Ad? – The No Censorship Rule for Candidate Ads