By: David Oxenford, Wilkinson Barker Knauer LLP
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.
In response, the licensee filed a Motion to Dismiss arguing that the campaign was not the proper legal entity to bring a defamation claim, as the campaign was not disparaged by the ad, but instead, if anyone was legally defamed, it was the President individually. As the President himself was not a plaintiff, the licensee argues that the case should be dismissed. In addition, the station analyzes Wisconsin law on defamation and the federal standard adopted by the Supreme Court. Under the Supreme Court standard, the station argues, to sustain a claim of defamation against public figures, in addition to any other standards set by state law, the plaintiff must prove “actual malice” — that the publication of a falsehood was made knowingly or while the publisher was in fact entertaining serious doubts about its truth. The Motion argues that these standards have not been met in this case.
The Motion to Dismiss argues that the claim made in the ad was not objectively false, as there was so much ambiguity in the statements about the “hoax” that reasonable people could, and did, believe that the President was talking about the virus and not the Democratic response. The Motion also argues that the law of defamation requires that the truth be judged based on the content of the message as a whole, and that the message conveyed (that the President did not take the virus seriously early enough) was not untruthful.
In addition, the Motion argues that the plaintiff cannot show the required malice. While the Trump campaign claimed that the ad was false, Priorities USA responded to the campaign’s claims and argued that it was not. To require that a broadcast station sort out these conflicting claims about the truth of political claims (and the nuances of defamation law) would potentially chill political speech – a responsibility that the courts, in adopting the malice standard, did not want to impose on the media.
The station also argues that there are no damages in this case. First, the campaign cannot show how it is legally damaged as, under Wisconsin law, “a statement’s impact on the electoral prospects of a candidate cannot form the basis of a defamation claim.” Additionally, the station argues that only the President, who is not party to the suit, would be entitled to damages and, obviously, it additionally argues that there is simply no basis for liability.
Priorities USA has also moved to intervene in the suit, arguing that it should be able to participate in the suit as, if the station is found liable, it may have an obligation to indemnify the station for any losses that the station suffers. The PAC filed a motion in support of the Motion to Dismiss, echoing many of the same points raised by the station itself.
Right now, the lawsuit is mired in back and forth arguments on procedural issues including whether the case should be heard in Wisconsin state courts or in federal courts. Eventually, the Trump campaign will have the opportunity to respond to the Motion to Dismiss. Obviously, the legal fight goes on, and both parties (or their insurance companies) will accrue legal bills to hash out these thorny legal issues. But these are legal issues that all stations should be familiar with as they become part of any calculation to accept non-candidate advertising in this important election year.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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