By: David Oxenford,
Wilkinson Barker Knauer LLP
Ads planned to run in (last Sunday’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.
The rules are simple in concept, but sometimes lead to results that media critics (and some stations) don’t like. For ads sponsored by legally qualified candidates themselves, 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 Flynt was planning to run for Federal elective office and stations feared that he would run sexually explicit campaign ads. At that time, the FCC indicated that broadcasters need not run an ad that would violate a Federal criminal law (in that case, obscenity laws). That is a very narrow exception, 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. While they may be disturbing to some, the airing them is not a criminal violation, so the Courts said that they cannot be blocked by a broadcaster. If this issue comes up, consult with your attorney – and also discuss other possible emergency-related exceptions (e.g., use of EAS tones when there is no emergency) that have never been addressed formally by the FCC but have been to topic of speculation as to whether an exception to the no censorship policy would apply. The FCC has also acknowledged that a station can alter a candidate’s ad to include a sponsorship identification if the ad is produced without that required content. Thus, as this weekend’s ads were not obscene and did not trigger any other narrow exception that could apply, these candidate ads likely could not have been rejected by the stations that ran them.
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. The candidate who claims that he is libeled or defamed by the political ad run by an opposing candidate 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.
The biggest issue is whether the attack spot is indeed a “use” by a political candidate. The candidate must be legally qualified for a place on the ballot. A “use” requires that the candidate’s recognizable voice or image must be in the spot. The spot also must be a “use” by the candidate or his or her official campaign committee. Third-party ads, even when they contain a picture of a candidate, when not authorized by the candidate, are not subject to the no-censorship rule. Thus, stations have potential liability for those ads (see our articles here, here and here about the potential liability of stations for third-party non-candidate ads). If there is a candidate appearance in the ad, and that ad is by the candidate or an authorized campaign committee of the candidate, then the broadcaster must reject any calls for the censorship of those ads unless they could be seen as potentially criminal. But for any case in which a claim for liability about a candidate attack ad is raised, contact your attorney who is familiar with the FCC’s rules to make sure that all elements necessary for the station’s protection are met. Note that the protection from liability only extends to broadcasts – the same ad that runs on your station’s website may subject you to liability even if you are immune from liability for the broadcast of that ad.
The “no censorship” provision applies to state and local candidates, as well as to Federal candidates. As we have written before, a station does not need to provide reasonable access to state and local candidates (as they do to Federal candidates). That means that a station can decide not to sell any time to a particular state or local race, or to limit ads from these candidates to a specific daypart, as long as all candidates for the same office are treated in the same way. But once the station makes the decision to allow ad sales to state and local candidates, the no censorship rule applies (as do most other political rules, see our article here). When you get that letter from the lawyer for the candidate who is being attacked in his or her opponent’s ads saying “take it down or we will sue,” you should be able to respond by saying that your hands are tied by Federal law, and the complaining candidate needs to take up its issues with the sponsor of the ads. When you get complaints from the public about the content of a candidate’s ad, you should similarly consider ways to let the public know that you cannot censor the content of candidate ads. Some stations run announcements throughout the election season making that point, as attaching a disclaimer only when the station judges that a specific ad might be controversial can be seen as diminishing the message (or could be seen as an equal opportunities issue if the same disclaimer is not attached to all opposing candidate ads, even if they are innocuous), so running the announcements at a time separate from specific political ads avoids these issues.
But remember that for ads that are not sponsored or authorized by candidates – such as those from PACs, unions, corporations, most political party ads and other non-candidate groups or individuals – have just the opposite rule. Stations can censor those ads, and are theoretically liable for their content if they have notice that the content is potentially defamatory or otherwise illegal.
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). There are no additional costs for the call; the advice is free as part of your MAB membership.