By: David Oxenford,
Wilkinson Barker Knauer LLP
Last week, NPR ran a story with the provocative headline – “The Truth In Political Advertising – You’re Allowed to Lie.” The story talked about how the FCC does not regulate candidate advertising to decide the truth of political ads, and then quoted a former FCC Chair to say that candidates can “lie” in their ads and the FCC will do nothing about it. The Chairman was then quoted to say that the FCC had been considering proposals to require greater sponsorship identification in political advertising during the last Democratic administration so that the individuals and groups backing various political advertisers would be better identified as to who is actually behind efforts to convince the public of the positions advocated in such ads. While the basic premise of the NPR story—that the FCC cannot censor candidate ads—is true, the story conflates the law with respect to candidate ads and the rules governing non-candidate groups that buy political time. As a short radio story, it also misses some important caveats on the premises it advances. So let’s take a deeper look at those issues.
First, on candidate ads, we’ve written many times before that Section 315 of the Communications Act prohibits broadcasters from censoring the content of candidate ads. That has been interpreted to mean that an ad sponsored by a legally qualified candidate for public office must be run by a station as presented to the station, absent the ad itself violating some federal criminal statute (e.g., a station might be able to reject an ad if it was legally obscene – a caveat that was widely discussed when Larry Flynt, the publisher of the notorious Hustler magazine, threatened to run for President so he could run obscene political ads without censorship). Just because a candidate ad may give rise to some civil liability (e.g., for defamation) does not allow a broadcaster to block the ad. But because a broadcaster must run the candidate ad as presented, the station cannot be held liable for the ad’s contents, as the Supreme Court held in a 1959 decision, Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc..
As we wrote here, that protection applies only to broadcast and local cable ad sales, so online platforms are not shielded from liability by Section 315. Whether there are protections for platforms under Section 230 of the Communications Decency Act, which protects online platforms from liability for material provided by third parties, is a question for another article.
But this prohibition on censoring candidate ads applies only to ads purchased by legally qualified political candidates. It does not apply to ads from non-candidate groups like PACs, political parties (except when their spending is “coordinated” with a candidate), corporations and other interest groups. Those are the groups to which the enhanced sponsorship identification referenced in the NPR article would apply. Ever since the Citizens United v. FEC decision in 2010 (see our articles here and here), these third-party ad buyers have formed a bigger and bigger percentage of the buyers of political ads – and they are often the ones who buy the most aggressive attack ads. But these groups, contrary to the implication of the NPR article, are not shielded by Section 315. As the NPR article acknowledges, stations can reject ads from non-candidate groups. Because broadcast and cable outlets can reject these ads, they can be held responsible for the content of these ads. Thus, to avoid potential liability, broadcasters and local cable operators must review these ads, particularly when there are claims by candidates being attacked alleging that the content of the ads is false and defamatory. Thus, the implication that anyone can “lie” in a political ad is incorrect. While the standard for finding that a “public figure” (like a political candidate) has been defamed is very high, stations have been sued for running allegedly defamatory ads (see, for instance, our articles here and here) and, even if the station is able to prevail when a case is brought, they can still face significant legal fees fighting off the claims.
The NPR story itself contains a link to a story done by another public broadcaster, which more thoroughly explains the differences between candidate and non-candidate ads (and which quotes me for the discussion of those issues). But neither story mentions another limitation on the ability of a candidate to “lie” in a political ad – though one that is seldom if ever used. While the broadcaster is shielded from liability for the content of a candidate ad, theoretically the candidate who produces an attack ad that contains a real “lie” could themselves be sued by the individual being attacked. If the content of an ad contains a “lie” that could really give rise to liability for the broadcaster if they were not protected by Section 315, that same content would give rise to liability against the candidate who produced and distributed the ad. That route is rarely if ever pursued, but it is open to a candidate that has been attacked by an opposing candidate. Beyond issues of bad publicity, attacked candidates are often reluctant to sue because of the New York Times v Sullivan standards that make it hard to prove defamation of a public figure. However, as we wrote here, there have been calls to revisit those standards which, if these reforms were ever implemented, might change the calculation of when candidates sue each other for libel or slander on the campaign trail.
The NPR article also expresses surprise that the FCC itself does not regulate the truth of candidate ads the way that the FTC regulates false and deceptive commercial advertising. As we have written before (see our articles here and here), do we really want a government agency deciding the truth or falsity of political speech? While the article links to an academic article that suggests that some independent, non-partisan commission could be established to act as the arbiter of truth in these ads, any government agency, no matter how non-partisan it may seem, can either be subject to political bias or—as is the case with the Federal Election Commission, where each political party has equal representation—hopelessly deadlocked on important issues. With our tradition of the First Amendment keeping government out of the business of regulating speech, do we really want to create a government agency that somehow tries to regulate one of the most protected forms of speech –political speech?
Of course, any short radio article cannot go into depth on these issues – just as this article glosses over many very important nuances of the issues it discusses. And the suggestion of a former FCC Chair for more enhanced disclosure of those behind third-party ads will be one that we discuss in a future article (though it is also one that we have discussed in the past, here, here, and here). Just remember, the rules governing political ads are not as clear as they may seem, so broadcasters, during election season, should keep their lawyers on speed-dial!
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.