The 2010 political broadcasting season is off to a fast start, with a controversy already erupting in connection with the Illinois Senate race to fill the seat once held by President Obama. Illinois has one of the first primaries in the nation for the 2010 election, to be held on February 2, 2010. In that race, Andy Martin, one of the Republican candidates for the open Senate seat that will be vacated by Senator Burris, is reportedly running ads on radio in Illinois stating that the front-runner for the Republican nomination, Mark Kirk, is rumored to be gay, and has many gay staffers, and asking that Kirk clear up questions about his sexuality. Many stations in Illinois have expressed concern about running an ad from a fringe candidate in the race that makes such a controversial allegation. Stations that are concerned need to remember that an ad by a legally qualified candidate cannot be censored once a station has agreed to sell time to the candidate. As we've written previously, if the attacking candidate is legally qualified for a place on the primary ballot, as news reports indicate that he is in the Illinois case, then stations cannot censor that ad - and have to run it with these attacks on the front-running candidate, even if the stations do not like the message.
The Chicago Tribune story about this controversy quotes me as stating that stations can censor a candidate ad if the ad violates a Federal felony statute. That caveat was added to FCC policy when it was feared that Larry Flint was going to run for Federal political office and run campaign ads that might test the limits of obscenity laws. More importantly, however, stations should recognize that, because they cannot censor an ad by a candidate's authorized campaign, the station itself has no liability for the contents of that ad. The candidate may be sued for libel or defamation (which has occurred in other cases), but the station itself should be immune from liability as it has no choice but to run the ad or violate Federal election laws. Stations do, however, have the ability to put disclaimers on ads - stating that they are political messages that cannot be censored and do not necessarily reflect the views of the station, but these disclaimers should be applied to all candidates for the same race equally.
For this protection from liability for the contents of a candidate ad to apply, stations do need to make sure that the ad is a "use" under FCC rules, i.e. it contains the recognizable voice or picture of the candidate. The ad also needs to have the required sponsorship identification.
The kind of issue that is raised by this ad can be particularly troublesome in connection with ads for Federal candidates, who have a right of reasonable access. Reasonable access means that commercial broadcast stations must provide access to all dayparts to Federal candidates who want to buy time. Thus, we've dealt with situations where white supremacists have qualified for a place on the ballot in a Congressional race and wanted to run racist ads - and stations have had to allow it. While this may seem like a bad outcome, it does make sure that stations cannot block unpopular viewpoints from being aired so that all points of view can be expressed by political candidates. Thus, while individual cases may result in ugly situations, the overall purpose of encouraging diverse political speech is achieved by the rules.
Stations do need to note that ads by third parties - e.g. political parties, labor unions, interest groups, or rich individuals interested in the process - are not subject to the no censorship rule. Thus, as ads by these third party groups can be rejected by stations based on their content, stations have theoretical liability for the content of these ads if they are defamatory. See our post on this subject here.
The political broadcasting rules are complex and confusing. The Davis Wright Tremaine guide to the political broadcasting rules can be found here. But stations faced with these issues should consult with counsel for specific guidance on any specific situation that may develop. Make those contacts now, as 2010 is likely to be a long political year with many controversies yet to come.