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.
The biggest issue is whether the attack spot is indeed a “use” by a political candidate. That means 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 not sponsored or authorized by the candidate are not subject to the no-censorship rule, so stations have potential liability for those ads (and we will write about that issue later this week). So be sure that there is a candidate appearance in the ad, and that ad is by the candidate or an authorized campaign committee of the candidate. If that is the case, then the broadcaster does not need to worry about the content of the attack ads, and must reject all calls for the censorship of those ads.
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). So 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 have your own lawyer write an easy response essentially 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
Ads that are not sponsored by candidates – 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. We’ll write more about these ads later this week.