From time to time, questions come up as to whether it is acceptable for broadcast stations to air ads from a political candidate which do not feature the voice or, for TV, the image, of the candidate. Ads from Federal candidates should almost never be missing the recognizable voice or image, as there are Federal Election Commission rules that specifically put the requirement on the candidate to appear on the spots in the “Stand By Your Ad” disclaimer (“I’m John Smith and I approved this message”). But sometimes ads from state or local candidates, in states where the Federal requirements have not been extended to local elections by the state legislature, may be missing the voice or image of the candidate. What are the implications for stations in airing such ads?
The most important implication is in the potential liability of the station for the content of the political ad. When an ad is a “use” by a candidate, the station cannot censor its content. It must be run as it is delivered to the station. Because a station cannot censor the ad, the station has no liability for the contents of the ad. So if the candidate defames his or her opponent, or violates copyright law, the station cannot be held liable for the content of the ad. We have written many times about this “no censorship” rule. As we wrote here, that rule (and virtually all of the political rules but for reasonable access) applies to state and local candidates just as it does to Federal candidates.
For the station to be insulated from liability for an ad from a candidate’s committee, the ad must be a “use” by the candidate. If it is not a use, the station can choose to reject the ad. But, if the station decides to run the spot and something in the spot gives rise to liability, the station itself could in some circumstance have some liability, just as a station can have liability for the content of third-party ads (e.g. ads from PACs, unions or other non-candidate groups that may decide to advertise during an election). See our article here about the issue for third-party ads.
The FCC requires that, for a spot to be a “use,” the candidate’s recognizable voice or image must be on the ad. FCC cases have said that the voice can be the candidate simply reading the sponsorship tag at the end of the ad. But, for a radio spot, the voice must be recognizable. If the candidate does not identify himself, the FCC adopts a reasonableness test – is the station reasonable in concluding that the normal listener would recognize the voice? If the candidate is one who has run for office many times, and has a distinctive voice, it is reasonable to conclude that he or she does not need to say who they are. Local celebrities, like a local broadcaster who decides to run for office, may well fit into that same category of having an inherently recognizable voice. But if the station employees who listen to an ad have no idea whether or not the voice at the end of the ad is the candidate, then they may want to inquire if the voice is that of the candidate, and think about asking for the ad to be recut to identify the candidate – especially where the ad contains controversial content that could raise liability issues. If the station is told that the voice is that of the candidate, but the station does not believe that the voice is recognizable, the station may want to consult its FCC counsel about how to approach the candidate about having the spot recut with the candidate identifying him or herself.
If the ad is not a “use,” the station also does not need to extend lowest unit rates to the spot. Only uses qualify for lowest unit rates. Thus, if the ad does not have the candidate’s recognizable voice or image, it is possible to charge the candidate normal commercial rates for the spots. In other contexts, there have been claims raised before the FEC, arguing that in Federal elections giving a candidate lowest unit rates when they were not entitled to such rates is an improper campaign contribution to the candidate. Stations have countered that they are justified in giving the low rates if they want, as they are not giving the spots away, but selling them at a commercial rate that at least some commercial advertiser is paying. The FEC deadlocked on this question of whether it was an improper contribution, so the question has never been finally resolved as to Federal candidates. State laws, which may not be as strict in regulating campaign contributions, would govern state elections, so check with local election officials as to whether this could be an issue in your state.
Most spots from candidates or their authorized campaign committees will have the candidate’s voice or picture on the ad, as the candidate will want to insure that they get lowest unit rates, and that no station can reject the ad for its content (and, as stated above, because the law requires it for Federal candidates). But if you get an ad from a candidate where his voice or picture is not on the ad, carefully consider what you are going to do – and ask counsel for the appropriate way to deal with that ad.